Environmental Enforcement Changing, According to Keystone Panel

Brian D. Israel
Arnold & Porter
Brian_Israel@aporter.com

A diverse panel at the 32nd Annual Conference on Environmental Law in Keystone, Colorado (Keystone Conference), agreed on one issue related to environmental enforcement: enforcement is changing and will continue to change in the future. The panel – entitled “Will ‘enforce’ be with you? Developments and trends in environmental enforcement” – was moderated by Steven Solow from Hunton & Williams in Washington, D.C., and was attended by over 100 participants.

The first presentation at the environmental enforcement panel was by J.P. Suarez, the assistant administrator for Enforcement and Compliance Assurance at U.S. EPA. Mr. Suarez stated that the goal at the EPA is not environmental enforcement, but rather environmental compliance. In that regard, Mr. Suarez stated that his office seeks to be more effective by using sound science to achieve smart enforcement. Further, Mr. Suarez stated that his office was not interested in a “gotcha” mentality, nor were they interested in “bean counting.” Rather, the enforcement office at the EPA is interested in addressing environmental problems and focusing on particular outcomes.

Nonetheless, Mr. Suarez agreed that old-fashioned environmental enforcement will continue and pointed to the New Source Review (NSR) cases that are ongoing, notwithstanding current rulemaking efforts. In addition, Mr. Suarez noted that 40 percent of U.S. petroleum refineries have already signed consent decrees and the refinery initiative will not stop until 100 percent of the cases have been completed.

Another environmental enforcement initiative identified by Mr. Suarez was the enhanced use of smart science and information tools available to the government. For instance, the Discharge Monitoring Report (DMR) database will be used in the future in an effort to direct enforcement resources more effectively. The DMR database is the second largest governmental database (smaller only than the database of the IRS), according to Mr. Suarez.

Also, the EPA will continue its unflagging commitment to environmental justice. “It’s unspeakable that any community bear more than their fair share.” According to Mr. Suarez, environmental justice is a primary commitment on behalf of the agency. Lest anyone question the EPA’s commitment to environmental enforcement, Mr. Suarez noted in closing that for fiscal year ’04, there was a proposed increase of 100 full-time employees for civil enforcement and monitoring.

John Cruden, the deputy assistant attorney general of the Environment and Natural Resources Division of the U.S. Department of Justice (DOJ), outlined many of the litigation accomplishments of the last few months. Mr. Cruden started by referring to the press conference on March 11, 2003 by Attorney General John Ashcroft. At the press conference, the attorney general stated that “[p]reserving, restoring, and protecting the environment for future generations of Americans will continue to be a top priority of the Justice Department. We will not hesitate to prosecute those that break the law and endanger our land and our lives.”

Mr. Cruden also reiterated Attorney General Ashcroft’s three priorities for the coming year for environmental enforcement. The first civil environmental enforcement priority for DOJ is “leveling the playing field.” Through this initiative, DOJ has reiterated its commitment to ensuring that violators of environmental laws do not benefit financially from their non-compliance. This emphasis on recovering the economic benefit received by violators will ensure that law-abiding companies are not disadvantaged. A second priority for DOJ is “maintaining the integrity of the nation’s infrastructure.” Through this initiative, the department hopes to increase and enhance security at the nation’s pipelines, storage tanks, transportation networks, industrial plants and public drinking water supplies. Examples of this initiative include the settlements with Shell and Olympic Pipeline Companies arising from a catastrophic explosion in Bellingham, Washington. The third priority for civil enforcement at DOJ is conserving the Superfund. In an effort to ensure the continued availability of funds to clean up contaminated sites, DOJ noted that, in February 2003 alone, it had secured commitments of more than $150 million earmarked for clean-ups at polluted sites.

In addition to the government’s continued commitment to obtaining compliance with the Clean Air Act at the nation’s petroleum refineries, Mr. Cruden outlined a number of other current events and accomplishments. For instance, Mr. Cruden referred to continued wetlands litigation including seven cases that are currently being heard in appellate courts across the country. Also, DOJ has continued its efforts to prosecute violations of the NSR provisions of the Clean Air Act by the utility industry. Mr. Cruden pointed specifically to the completion of the first trial in Ohio and the fact that there are several more trials scheduled this year. Other trends identified by Mr. Cruden include continued cooperation and co-enforcement with the states, emphasis on environmental management systems, and increased reliance upon technology in the courtroom.

Attendees of the environmental enforcement panel also heard a state perspective from Lemuel Srolovic, Section Chief, Environmental Protection Bureau at the Office of the Attorney General in New York. Mr. Srolovic identified several innovative efforts by the State of New York to vigorously ensure compliance with environmental laws. One such effort in the State of New York is the sector initiative whereby the State targets enforcement to particular industries. For instance, the State of New York is currently taking environmental enforcement action against junkyards and auto dismantlers. A second innovation in the State of New York is pursuing violations of the Clean Air Act against powerplants in other states. In these actions, the State of New York is sueing out-of-state companies as a citizen suit plaintiff. A third initiative by the State of New York, and possibly other states, is to sue the federal government to seek compliance with environmental laws at federal facilities. Other actions by New York related to the federal government include commenting upon proposed rulemaking such as the wetlands rules and the Department of Energy proposed rules.

Finally, attendees at the Keystone enforcement panel heard an alternative viewpoint from Mr. David Beckman, a senior attorney at the Natural Resources Defense Council (NRDC). While Mr. Beckman agrees that environmental enforcement trends indicate a change, from the NRDC’s perspective, it is a change resulting in a weakening of environmental enforcement. NRDC observes a high level of systemic non-compliance in the United States of existing environmental laws coupled with a decreased level of environmental enforcement from the EPA. For instance, according to Mr. Beckman, 20 percent of all Clean Water Act permit holders are in significant non-compliance of their permits. Similarly, Mr. Beckman asserted that the civil penalties obtained in 2001 and the injunctive relief obtained in 2001 is minuscule relative to the gross domestic product of the nation, and is too small to ensure compliance with environmental laws. Finally, the NRDC believes that current proposed initiatives, such as the Clear Skies Proposal, will result in a weakening in environmental laws.

Mr. Beckman predicts several trends in the coming year, including an increased number of citizen suits against the United States with a decrease in citizen suits against companies. Secondly, Mr. Beckman believes that small organizations and non-governmental organizations will pick up the perceived slack in environmental enforcement and become more active citizen enforcers of environmental laws and regulations. Mr. Beckman points, for instance, to organizations such as the various Waterkeepers around the country. Third, Mr. Beckman predicts that we will see an increase in enforcement of state statutes in the coming months.

Several questions from participants attending the panel further elaborated upon current developments and future predicted trends in environmental enforcement. Many participants were interested in future guidance related to environmental management systems. Mr. Cruden pointed out that, in at least one recent case, an environmental management system was required as part of the injunctive relief in the settlement. Mr. Suarez further elaborated that, while there will be some guidance forthcoming regarding environmental management systems, the EPA is very concerned not to create a straight-jacket that would artificially limit corporate efforts to establish management systems. Several participants asked questions regarding overfiling and federal-state relations. Mr. Cruden pointed out that federal-state relationships are improving; that there are several efforts to bring enforcement actions by the federal government together with the states; and that overfiling by the federal government is not a huge issue, but that it will continue to be pursued if economic benefit is not recovered or if the injunctive relief in a state settlement is inadequate.

In sum, all of the panelists pointed to the need for continued vigorous enforcement of environmental laws, while Mr. Suarez, from the EPA, argued for the need for smarter environmental enforcement in order to obtain meaningful results in the future. Shortly after the Keystone Conference, the EPA, through Mr. Suarez, issued a memorandum to all of its enforcement staff entitled, “Smart Enforcement.” In this memo, dated April 15, 2003, Mr. Suarez stated that the agency must continue to use “sound science, common sense, and our collective experience to enhance the environment and to protect public health.” Mr. Suarez went on to say that “smart enforcement is the use of the most appropriate enforcement or compliance tools to address the most significant problems to achieve the best outcomes.” Indeed, many of the themes outlined in Keystone by Mr. Suarez were stated in the EPA’s “Smart Enforcement” memo, including a renewed emphasis on addressing the most significant environmental and compliance problems first, the systematic measuring of environmental outcomes, and the use of data for making strategic decisions and allocating resources. Mr. Suarez concluded that he is confident that such efforts will “achieve cleaner air, purer water and better protected lands.”