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EPA’s New Strategic Plan: Cuts in Enforcement While Promising Streamlined Methods of Compliance

Schriftman_Seth_COLORBy: Seth J. Schriftman

 

On November 19, 2013, U.S. Environmental Protection Agency (“EPA”) released its “Draft FY 2014-2018 EPA Strategic Action Plan” (the “Plan”). Of note, the public comment period for the Plan ends on January 3, 2014.

The Plan describes five EPA strategic goals:

  1. Addressing climate change and improving air quality;
  2. Protecting America’s waters;
  3. Cleaning up communities and advancing sustainable development;
  4. Ensuring the safety of chemicals and preventing pollution; and
  5. Protecting human health and the environment by enforcing laws and assuring compliance.

The Plan also addresses four EPA cross-cutting fundamental strategies:

  1. Working toward a sustainable future;
  2. Working to make a visible difference in the communities;
  3. Launching a new era of State, tribal, local, and international partnerships; and
  4. Embracing EPA as a high-performing organization.

Within the Plan, each of these goals and strategies is discussed in turn and in detail. For example, the goal of addressing climate change and improving air quality includes EPA’s priority goal to reduce greenhouse gas (“GHG”) emissions from new model vehicles and trucks by September 30, 2015.  This goal would potentially result in reducing GHG emissions by 6 billion tons and reducing oil consumption by about 12 billion barrels over the lifetime of the vehicles.  As another example, the goal of cleaning up communities and advancing sustainable development includes the benchmark of having 18,970 additional contaminated sites cleaned up and made available for use by 2015.  

However, the Plan also confirms that EPA is envisioning less enforcement of environmental laws over the next five years.  Some primary examples of EPA’s reduced enforcement efforts going forward include:

-          Conducting only 70,000 federal inspections and evaluations by 2018, when 105,000 such inspections and evaluations had been conducted on average per year between FY 2005 and 2009;

-          Initiating only 11,600 enforcement cases by 2018, when 19,500 enforcement cases had been initiated on average per year between FY 2005 and 2009; and

-          Concluding only 10,000 enforcement cases by 2018, when 19,000 enforcement cases were concluded on average per year between FY 2005 and 2009.

EPA states in its Plan that its objective is to: “Pursue vigorous civil and criminal enforcement that targets the most serious water, air, and chemical hazards in communities to achieve compliance.”  So, it is not surprising that EPA suggests that its strategy is to address the worst polluters first in identified sectors, which will result in less pollution, which EPA believes will further result in fewer enforcement actions over time.  

Additionally, throughout the Plan, EPA stresses its intention to “modernize” how it functions. As the primary example, EPA envisions the use of “Next Generation Compliance” strategies and tools to improve compliance while reducing pollution.  

This Next Generation Compliance includes:

  1. Designing regulations and permits that are easier to implement, with a goal of improved compliance and environmental outcomes;
  2. Using and promoting advanced emissions/pollutant detection technology so that regulated entities, the government, and the public can more easily see quantified pollutant discharges, environmental conditions, and noncompliance;
  3. Shifting toward electronic reporting by regulated entities so that EPA has more accurate, complete, and timely information on pollution sources, pollution, and compliance, saving time and money while improving effectiveness and public transparency;
  4. Expanding transparency by making the information that EPA has today more accessible, and making new information obtained from advanced emissions monitoring and electronic reporting more readily available to the public; and
  5. Developing and using innovative enforcement approaches (e.g., data analytics and targeting) to achieve more widespread compliance. 

As EPA admits in its Plan when discussing Next Generation Compliance, “. . . [W]e are not there yet . . . it will take years to fully implement this transition.”  Thus, if EPA’s Plan is finalized, it may result in concerns over reduced environmental enforcement while EPA works toward a long-term process of implementing new methods of being in and monitoring environmental compliance.