The Gorilla: Enforcement at the EPA

Part of the reason that enforcement flies under the radar is that it is complex. It is hard for even experienced journalists and policy analysts to understand the complexities of enforcement and the data on enforcement that the agency produces. In this section, we provide a brief primer on how enforcement works at the EPA..

First, it is important to understand that enforcement is the implementation of regulations and laws. When legislators pass laws, they direct administering agencies, like the EPA, to write regulations that flesh out those laws. The agency further shapes the implementation of regulations by writing guidance documents, memos and other documents that give administrators and employees more detailed directives about how to carry out the law.

Further complicating the enforcement process is the U.S. federalist system of environmental laws. Since the 1970s, the national government has passed a series of strong environmental laws, most of which are administered by the EPA, a national agency. But for most laws, the EPA can delegate authority to enforce the law to the states and tribal governments. Most states have the authorized power to enforce federal environmental laws, such as the Clean Air Act and Clean Water Act, which is why most environmental enforcement actions are undertaken by state environmental agencies. While most enforcement is, and has been, done by states, the EPA steps in to work on big or complicated cases (with help from the Justice Department), or  to step in where states are not adequately enforcing laws.

The details of federally run enforcement practices vary across laws, but generally they happen as follows. The EPA assists regulated entities (businesses, municipalities, and so on) in complying with the law, while also monitoring them for violations. Monitoring may consist of information requests and self-reporting from industries, electronic data collection, and on-site inspections. The EPA also gathers tips from citizens. If it finds a violation, it may initiate an informal enforcement action, such as sending a notice of violation or a warning letter. Or, it may initiate formal enforcement actions. These are of two main types: civil cases (for violations of civil code) and criminal cases (for violations of the criminal code). 

For civil violations, the EPA can pursue administrative or judicial cases. The most common enforcement actions are administrative, which entail the agency itself issuing a formal notice of violation or an order requiring compliance. There are many different categories of administrative enforcement actions, reflecting the variety of mechanisms available for compelling compliance. 

Civil judicial cases are those cases pursued in court outside the EPA’s administrative apparatus. While less common than administrative cases, judicial cases are usually the most serious civil cases. The Department of Justice (DOJ) takes the lead on these cases, and so when these cases are initiated they are counted as “civil judicial referrals” to the DOJ. These cases typically end in consent decrees, which are a form of court-ordered negotiated settlement (with fines or compliance orders, or both). 

Both administrative orders and court orders, including consent decrees, can impose civil penalties on violators and can require them to come into compliance. The EPA tracks the fines (penalties) levied in civil cases and estimates the compliance costs (also called “injunctive relief”) that result from orders and settlements. EPA also tracks the amount of money committed for Supplemental Environmental Projects (SEPs), another potential outcome of cases. SEPs require violators to fund projects to improve environmental or human health in affected communities.

Finally, in addition to civil actions (administrative and judicial) the EPA may pursue criminal enforcement actions. It undertakes these actions against the most egregious violators of environmental laws. As in civil judicial cases, the DOJ prosecutes these on behalf of the EPA, working closely with EPA criminal investigators. Criminal cases can result not just in monetary penalties but also prison time for those held responsible. 

In this speech to EPA staff, administrator William Ruckelshaus made is famous comment that the EPA was the "gorilla the closet." What Ruckelshaus meant was that state enforcement of environmental laws was credible because the EPA could be brought in -- or rather, out -- in the case that state governments were not adequately carrying out enforcement. If, on the other hand, the states "open the closet and find nobody there, or somebody who won't come out, that doesn't do them any good... They need us. They'll complain and scream, but if they don't have us, they are dead." This was Ruckelshaus's second time as administrator. He was brought back to the agency after the previous administrator, Anne Gorsuch, was forced to step down after a series of scandals that included lax enforcement. Even after Ruckelshaus was brought back in, the agency was slow to return to aggressive enforcement due to the lingering shadow of the Reagan administration. Ruckelshaus sought to light a fire under his staff: "The elements of a strong enforcement program are here -- absolutely here -- you not only have my support, you've got my demand that something be done."

In 1982, majority members in the House convened a hearing to review the EPA, about which there were a variety of concerns. The Chairman of the House Subcommittee on Environment, Energy and Natural Resources, Toby Moffett, stated, “The Administration of the EPA, even some Members of Congress, claim that all is well at EPA. Frankly, some of us don’t believe it. That is why we are here today.” While the hearings ranged across many aspects of the agency, a key focus was enforcement, which many members of Congress believed had been struck a ruinous blow by Administrator Anne Gorsuch. Senator Patrick Leahy (D-Vermont) and his staff, for example, conducted a study of the agency and concluded that “the effectiveness of the enforcement division of the Environmental Protection Agency was virtually destroyed by a combination of mismanagement and mixed signals.” As a result, “good environmental legislation passed with bipartisan support over the last 20 years… and strong public support, is being repealed in a back-door manner by not enforcing it.”

In a scathing report based on Congressional hearings earlier in 1982, the House Subcommittee on Oversight and Investigation ticked off numerous issues with the agency's hazardous waste enforcement program. It noted disrupted agency reorganization, a steep drop in civil cases initiated, and a philosophy of "voluntary compliance" that was ineffective without the threat of strong enforcement to back it up. The EPA had failed to implement hazardous waste laws enacted by Congress, according to Chairman John Dingell, and as a result was failing to protect public health and the environment.

Cynthia Giles, head of enforcement under the Obama administration, outlined a new approach to enforcement and compliance at the EPA known as “Next Generation Compliance,” or Next Gen for short. The Next Gen idea was built around five, interconnected components: Regulation and permit design, innovative enforcement, advanced monitoring, electronic reporting, and transparency.

Enforcement metrics declined markedly under the Trump administration. While the EPA did not acknowledge this publicly, it did in internal documents. In this document, the Office of Enforcement and Compliance Assistance leadership considered various reasons for the decline in enforcement. These included: lack of resources (staff and budget); increased industry influence and pushback; intervention from leadership that is slowing work; uncertainty about regulatory changes; and a general perception among staff that enforcement, or certain types of enforcement, are not appropriate, not welcome by the leadership, or are unlikely to be successful under the new administration’s approach (a “chilling effect,” as the document put it).

This report examined environmental enforcement in the first two years of the Trump administration. Based on extensive interviewing with EPA employees and recent retirees, environmental enforcement data and internal documents, the report concluded that the EPA was no longer capable of fulfilling its mission to ensure competent enforcement of federal environmental laws. In place of that “gorilla in the closet” role characterized by its first administrator, William Ruckelshaus, it had become a “sheep in the closet.”

On March 26, 2020, the EPA suspended pollution monitoring requirements for regulated entities that claimed to have been impacted by Covid-19. EDGI’s Environmental Enforcement Watch used EPA’s ECHO database to analyze facility reporting and compliance. This analysis showed that although few facilities claimed the Covid-19 exemption, a significant proportion of facilities had still failed to report data that would allow for a determination of non-compliance.

This report used tools developed by EDGI’s Environmental Enforcement Watch to analyze trends in compliance and enforcement in select congressional districts and states. The analysis found increases in violations under the Trump administration in many of the areas studied, as well as long-term problems with non-compliance. The report also found serious problems with the reporting, collection, maintenance, and access to enforcement and compliance data.