{"id":92,"date":"2021-03-30T17:08:49","date_gmt":"2021-03-30T21:08:49","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/esg\/?p=92"},"modified":"2021-03-30T17:08:49","modified_gmt":"2021-03-30T21:08:49","slug":"a-look-back-at-the-trump-epa-and-enforcement","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/esg\/2021\/03\/30\/a-look-back-at-the-trump-epa-and-enforcement\/","title":{"rendered":"A Look Back at the Trump EPA and Enforcement"},"content":{"rendered":"\r\n

On January 13, 2021, one week prior to the end of the Trump administration, the Environmental Protection Agency released its annual enforcement report for the prior year \u2013 \u201cEPA Enforcement Annual Results FY 2020.\u201d https:\/\/epa.maps.arcgis.com\/apps\/Cascade\/index.html?appid=9dfe57199392498f872bac6bf2e4867c<\/a>\u00a0 In keeping with the rhetorical style of the former president, EPA claimed that it had achieved \u201ctremendous results for the public and the environment.\u201d When one looks below the surface, however, a different picture appears.

EPA\u2019s FY 2020 report identifies the following as the \u201chighlights\u201d of its \u201cNational Compliance Initiatives\u201d (NCI) efforts to address \u201cthe most serious environmental violations,\u201d violations on which EPA \u201cfocuses\u201d its enforcement and compliance resources:

\u2022 Reducing the National Pollutant Discharge Elimination System (NPDES) Significant Non-Compliance one-quarter rate from a FY 2018 baseline of 20.3% to 16.4%, continuing progress toward achieving the goal of cutting the Significant Non-Compliance rate in half by FY 2022.
\u2022 Resolving 31 cases as part of the Stopping Aftermarket Defeat Device NCI.
\u2022 Reducing almost 27 million pounds of volatile organic compounds and over 2.8 million pounds of hazardous air pollutants under the Creating Cleaner Air for Communities NCI.
\u2022 Issuing a Clean Water Act compliance advisory on reducing significant non-compliance with NPDES permits and an enforcement alert on compliance with the Resource Conservation and Recovery Act air emissions requirements to assist the regulated community in understanding their obligations.

Let\u2019s look at these four highlights, one at a time.

1. Reducing NPDES (Wastewater\/Stormwater Discharge Permit) Significant Non-Compliance

Despite being the very first bullet point in the list of enforcement highlights, the report itself does not provide much information about the claimed accomplishment and only offers the stated percentage reduction (20.3% to 16.4%, with 10% \u201csignificant non-compliance\u201d being the stated target). At first, this might seem impressive, but why is FY 2018 used as the baseline? What would the picture look like if a longer history were reviewed? Why is this amount (16.4%) of \u201csignificant\u201d non-compliance happening? Why is the target 10%, and not 0%?

2. Resolving 31 cases as part of the \u201cStopping Aftermarket Defeat Device\u201d Initiative

Thirty-one cases seems like a lot. But in many instances, the cases commenced before 2020 \u2013 and even before 2017, when the Trump administration assumed control. And although the number of \u201cdefeat device\u201d cases has fluctuated over the years, 31 cases resolved in 2020 represents a reduction from 46 cases resolved in 2019. The real question is: how much non-compliance is ongoing and yet to be identified and\/or sanctioned? The report does not address this.

Notably, the Trump EPA claimed that behind this enforcement initiative lies its understanding of its \u201ccritical role\u201d in reducing air pollution from vehicles. \u201cBy making aftermarket defeat devices a national priority, EPA is addressing a significant contributor to air pollution. … EPA, through its direct implementation authority, can play a critical role in addressing these important pollutant sources.\u201d Yet, during 2020, the Trump EPA sought to roll back regulations requiring more fuel-efficient vehicles in the coming years \u2013 reducing the required fleet average from 55 mpg by 2025 to about 40 mpg by 2026 \u2013 despite automakers agreeing that a higher mpg target was achievable. In fact, four of them took legal action in opposition to the announced rollback. The adverse impact on air quality from this deregulatory action dwarfs the positive impact of the defeat device enforcement initiative, which is largely aimed at small shops that customize engines.

3. Reducing almost 27 million pounds of volatile organic compounds (VOCs) and over 2.8 million pounds of hazardous air pollutants under the \u201cCreating Cleaner Air for Communities\u201d Initiative

As described by EPA, the Creating Cleaner Air for Communities NCI is a monitoring\/inspection-based program. Monitoring and inspections lead to observed violations, which lead to enforcement actions, which result in emissions reductions. This is not a new approach; it is, actually, air pollution law enforcement 101. The Trump EPA\u2019s FY 2020 report claims what appear to be large reductions (27 million lbs. of VOCs, and 2.8 million lbs. of hazardous air pollutants). But the report provides no baseline against which to measure the claimed achievements (is a 27 million pound reduction in VOCs a 0.001% reduction in overall national VOC emissions, a .0001% reduction, or even less?), and no context (e.g., are these annual reductions, or multi-year reductions?).

As is so often the case, answers lie in the details. In a table accessed through a link at the end of the report, one can see that EPA\u2019s FY 2020 compliance inspection\/monitoring activities (total, including on-site and off-site) were down from FY 2019 levels (and FY 2019 levels were down from FY 2018 levels; and FY 2018 levels were down from FY 2017 levels; and FY 2017 levels were down from FY 2016 levels).

4. Issuing a Clean Water Act compliance advisory and a Resource Conservation and Recovery Act enforcement alert to assist the regulated community in understanding their obligations<\/p>\r\n

If one of the four claimed enforcement highlights of the year is the issuance of a compliance advisory and an enforcement alert, that is perhaps the most telling indication that enforcement by EPA under the Trump administration was not much of a priority.

Readers should not look to the narrative of the FY 2020 report for meaningful information about EPA\u2019s enforcement performance over the past four years. The only useful, albeit summary, information in the report is found in the graphs and tables for which links are provided at the end of the report. This one presents a clear picture of the decline in enforcement activity:<\/p>\r\n

\"\"<\/a><\/p>\r\n

Enforcement of compliance with federal environmental laws will be a higher priority under the Biden administration than it was for the past four years. However, with so little money in the federal budget, and with so much emphasis expected to be placed on the need for new initiatives to address climate change, only time will tell how much the desire to enforce existing law will translate into actual cases and sanctions.<\/p>\r\n","protected":false},"excerpt":{"rendered":"

On January 13, 2021, one week prior to the end of the Trump administration, the Environmental Protection Agency released its annual enforcement report for the prior year \u2013 \u201cEPA Enforcement Annual Results FY 2020.\u201d https:\/\/epa.maps.arcgis.com\/apps\/Cascade\/index.html?appid=9dfe57199392498f872bac6bf2e4867c\u00a0 In keeping with the rhetorical style of the former president, EPA claimed that it had achieved \u201ctremendous results for the … <\/p>\n

Continue reading “A Look Back at the Trump EPA and Enforcement”<\/span><\/a><\/p>\n","protected":false},"author":512,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"ppma_author":[9],"class_list":["post-92","post","type-post","status-publish","format-standard","hentry","category-general"],"authors":[{"term_id":9,"user_id":512,"is_guest":0,"slug":"scooley","display_name":"Seth v.d.H. Cooley","avatar_url":"https:\/\/blogs.duanemorris.com\/esg\/wp-content\/uploads\/sites\/53\/2021\/02\/cooleyseth-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/esg\/wp-json\/wp\/v2\/posts\/92","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/esg\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/esg\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/esg\/wp-json\/wp\/v2\/users\/512"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/esg\/wp-json\/wp\/v2\/comments?post=92"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/esg\/wp-json\/wp\/v2\/posts\/92\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/esg\/wp-json\/wp\/v2\/media?parent=92"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/esg\/wp-json\/wp\/v2\/categories?post=92"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/esg\/wp-json\/wp\/v2\/tags?post=92"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/esg\/wp-json\/wp\/v2\/ppma_author?post=92"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}