Thank you, Mr. Chairman and members of the Senate Environment Committee, for the opportunity to testify today on the need for greater consistency in enforcing federal environmental laws. My name is Eric Schaeffer, and I am currently the director of the Environmental Integrity Project, a nonprofit organization dedicated to more effective environmental enforcement. Until March of 2002, I was Director of the U.S. Environmental Protection Agency’s Office of Civil Enforcement, so the topic of today’s hearing is a familiar one.
EPA has been charged by Congress with enforcing nineteen environmental laws in fifty states that regulate the discharge of pollution from a wide range of economic activity. Responsibility for most enforcement activity – including inspections, and the levying of fines and penalties for violations – has been delegated to state agencies that also issue and review the federal permits that are supposed to limit pollution from refineries, power plants, animal feedlots, and thousands of other large sources.
Not surprisingly, in a country as large and diverse as our own, states vary widely in both the competence and the philosophy that they bring to bear on these important responsibilities. In practice, that means that violators can flout federal environmental law in some states without fear of penalty, or having to worry that their violations will be detected at all. This divergence between states is the greatest source of inconsistency in the enforcement of federal law – if we want to provide law abiding companies with a level playing field, this problem needs to be addressed head on.
The Inspector General and the U.S. General Accounting Office have painstakingly documented the failure of some states to enforce our environmental laws in a series of reports issued over the past decade. Their findings are sobering, and worth reviewing.
On April 14, 1997, the Inspector General’s review of enforcement of federal hazardous waste laws advised that, “State penalty policies are inconsistent from state to state,” and pointed out that some state agencies did not bother to recover the economic benefit that companies realized by ignoring federal hazardous waste laws. Separate IG reviews in 1999 found that Virginia, “rarely classified violators with serious RCRA violations as ‘Significant Non-Compliers,’” while Rhode Island’s Department of Environmental Management did not, “(1) issue appropriate and timely enforcement actions; (2) ensure that violators complied with enforcement schedules, and (3) identify significant non-compliance.” In Rhode Island, the IG concluded that the problems resulted from “a lack of management commitment to enforcement.”
On September 25, 1998, the IG concluded that its audits of air enforcement in Alaska, Maryland, Massachusetts, New Mexico, Pennsylvania, and Washington had, “disclosed fundamental weaknesses with state identification and reporting of significant violations of the Clean Air Act. This occurred because states either did not want to report violations or the inspectors were unable to detect them. Numerous significant air violations went undetected, and many of these were not reported to EPA.” Where the 6 states identified only 18 significant violators, the Inspector General’s office found 103 in the same fiscal year, after examining only a fraction of state records.
A similar audit of Idaho’s air enforcement program in 1998 reached similar conclusions, finding that the state’s “enforcement actions were not appropriate and penalties not enough to deter violations; enforcement activities did not result in a timely return of sources to compliance; inspection procedures did not ensure that significant violators were identified, and data was not reported accurately.”
The beat goes on. In 2002, the U.S. General Accounting Office found that, “over one half of the states do not inspect all of the tanks frequently enough to meet the minimum rate recommended by EPA, at least once every three years.” In 2003, the IG issued a particularly scathing report on Louisiana’s implementation of federal programs, finding that the state’s RCRA database contained many errors, and that, “Louisiana did not know whether facilities were in compliance because self-monitoring reports were either not submitted by facilities or could not be located.” Just last year, the IG documented wide variations in monitoring of Clean Air Act sources between Texas, New York, North Carolina and Ohio.
To be sure, not all of these reviews have been negative. For example, the IG applauded the Illinois EPA’s enforcement of hazardous waste laws in a 1999 audit, and noted efforts by North Carolina to improve Clean Water Act permitting of large animal feedlots. State attorneys general from New York and a handful of other states have sometimes shown that they are more than willing than EPA to crack down on some of the country’s most powerful polluters.
Nor can all the inconsistency in environmental enforcement be charged to states. The USEPA shares the responsibility for enforcing most federal environmental statutes, and is the exclusive authority for enforcing a handful of laws, like the Toxic Substances Control Act, federal right to know laws that established the Toxics Release Inventory, and tailpipe standards for cars and trucks in every state but California. While headquarters determines policy and manages a few key cases, most federal enforcement is carried out by staff in ten different regional offices who report to ten different Regional Administrators, each separately appointed by the President. This fragmentation of responsibility has led to significant variations in regional enforcement, although I think it’s fair to say these differences are not as dramatic as they are between states.
Like many other problems in government, inconsistent federal enforcement is easier to diagnose than it is to cure, and has persisted through various changes in Administration. As long as responsibility is shared by EPA and state agencies, we are going to need to tolerate some diverse approaches to environmental enforcement, which is not necessarily a bad thing. States need room to innovate, and in any case, divided government is part of our constitutional framework.
But so is the idea that citizens deserve equal protection under the law, which becomes meaningless if polluters can virtually ignore federal environmental laws in some parts of the country. Although we will never achieve perfection, we need to do our best to provide both the regulated industry and the public with a level playing field.
Although there are no silver bullets, there are some actions that could help to improve the consistency of environmental enforcement. Both EPA and state agencies are understaffed relative to their workload, which means that some of the largest facilities can go years without ever seeing an inspector. Permit fees provide a source of revenue that can be more reliable than annual appropriations, and both Congress and state legislatures should assess whether these are sufficient to meet program needs.
Both the IG and the GAO have recommended that major sources of pollution be required to use state of the art monitoring to track emissions, instead of the inaccurate accounting still in use at many facilities, which amount to little more than guesswork. Instead, the USEPA has rolled back emissions monitoring to accommodate industry lobbyists, despite having been reprimanded twice for such actions by the DC Circuit Court of Appeals.
EPA needs to make enforcement expectations clearer for states running federal programs. Some states may welcome this clarity; the GAO reported in 2002 that forty of the states it surveyed would support a federal mandate to inspect all underground storage tanks periodically, since that could provide the leverage to secure adequate funding from their state legislatures.
Unfortunately, there is no substitute for regular oversight of state programs, and this is probably EPA’s toughest job. Nobody likes to be audited, and the agency will have to exercise this responsibility with sensitivity and skill. Outstanding efforts need to be recognized, but the Agency must have enough leverage to step in and at least temporarily manage enforcement activity where a state’s program is clearly deficient.
Congress can help by asking the right questions and sending the right signals to both EPA and state agencies. Unfortunately, I cannot think of a single hearing that either the Senate or the House has scheduled in the last ten years to address any of the repeated concerns that the IG or the GAO have raised about uneven enforcement of federal environmental laws. Unless I am mistaken, today’s hearing was prompted by complaints from a trade association that EPA was not polite enough when offering to waive all penalties, if its member companies would be kind enough to voluntarily comply with risk management requirements that have assumed particular importance after 9/11.
Such voluntary programs can be a valuable adjunct to enforcement, and perhaps EPA was not as tactful as it could have been when describing the terms of the amnesty it was offering in exchange for compliance. But if Congress is concerned about inconsistency, I would respectfully suggest that the biggest problem by far is the lack of any meaningful environmental enforcement at all in some of the most heavily polluted parts of our country. This shortfall has been thoroughly documented by the government’s own auditors over the last decade, and I hope you will give their work the serious attention it deserves.