The Nickel Report

The latest news is full of stories of federal agencies reviewing and, in some cases, rescinding environmental regulations and cutting agency spending. From these reports, it could seem the federal government might also cut back its enforcement of environmental laws. But in fact, even in this turbulent regulatory and fiscal appropriations landscape, enforcement–particularly criminal enforcement–of core existing environmental laws is one aspect of environmental regulation that is sure to continue.

Criminal enforcement of environmental laws is unlikely to change dramatically, in part because such cases often involve factual elements that meet specific enforcement objectives and are brought under statutory provisions that are unlikely to change, even if specific policies may be altered. For example, although there has been much attention on the outer reaches of geographic jurisdiction to regulate “waters of the United States” under the Clean Water Act, there is no debate that the act will continue to prohibit egregious violations involving unquestionably jurisdictional waters, such as the dumping of toxic waste into a waterbody like the Chesapeake Bay or Mississippi River. Furthermore, prosecutions of environmental crimes are frequently intertwined with other, more general crimes within the federal criminal code, such as conspiracy, false statements to the government or obstruction of justice. Because such cases are deemed to serve the administration of justice, these are likely to continue across any administration.

An agency’s budget is, as mentioned in a previous post, key to determining the amount of resources the agency will dedicate to environmental enforcement. Despite calls for decreases in agency budgets and cutbacks in personnel, Congress’ recently passed spending bill to fund the government for the remainder of fiscal year 2017 contained only minor cuts to the Environmental Protection Agency’s budget. This was a significant departure from President Trump’s budget "blueprint" laying out his administration's fiscal priorities for the upcoming 2018 fiscal year, which calls for reducing the Environmental Protection Agency’s budget by nearly a third, and the budget for its Office of Enforcement and Compliance Assurance by 23 percent. Congress’ spending bill (now signed by President Trump), on the other hand, allocated roughly $423.7 million to EPA’s enforcement activities–nearly all of the $461.5 million the agency requested in 2016 for FY 2017. Congress must pass a new budget or another stopgap spending bill for the 2018 fiscal year by September 30, 2017.

Finally, prosecutors will continue seeking criminal prosecution in large-impact cases, even if future funding levels eventually reduce the number of people working to enforce the environmental laws. Major violations of environmental laws will still result in enforcement cases, and likely in significant penalties. Cases involving large-scale environmental impacts, like the BP Deepwater Horizon spill, or allegations of large-scale environmental fraud, such as the Volkswagen emissions case, will continue to be prosecuted. Continued criminal enforcement for violations of environmental laws, and the onerous penalties it can lead to, are strong reasons that even in a changing regulatory climate, businesses must remain vigilant in complying with environmental regulatory obligations.