President Trump has signaled a desire to reduce the burden caused by environmental regulations. An executive order issued Jan. 30 requires that two rules be identified for repeal for every new rule proposed. He issued another executive order Feb. 24 announcing that it is the official policy of the U.S. to alleviate unnecessary regulatory burdens. At the same time, though, the president has stated he wants to reinvigorate the manufacturing and oil and gas development sectors, while also shortening the environmental review process for major infrastructure projects.
Against this backdrop, both President Trump and Mr. Pruitt of EPA have stated that they want to refocus EPA on its core mission of ensuring clean air and water. But, as manufacturing, oil and gas, and infrastructure projects are constructed, the question arises as to how EPA will ensure — and whether EPA can assure — that its core mission of clean air and water will be achieved.
Some answers are found in a recent justification for its Fiscal Year 2018 budget submitted by EPA to Congress. Overall, the proposal reduces EPA’s budget to about $5.6 billion, down about $2.6 billion below 2017. In the area of enforcing laws and assuring compliance, EPA provided details about enforcement and monitoring.
EPA will focus its compliance monitoring activities, such as field inspections, on those programs that are not delegated to states. As permitting and enforcement duties of most major environmental programs, such as the Clean Air Act and the Clean Water Act, are already delegated to the states, this seems to suggest that EPA does not plan to conduct many inspections in these areas in states with these delegated programs.
EPA will also focus its enforcement program resources on its direct implementation responsibilities and the most significant violations. Direct implementation responsibilities include programs that are not delegable or where a state does not have authority to implement a particular program. EPA provided examples of the Clean Air Act mobile source program and enforcement on tribal lands. Further, it will refocus efforts from areas where significant progress has been made to areas that address the most substantial impacts to human health.
If EPA does intend to focus its compliance monitoring and enforcement activities as just described, it would seem that the states will continue to conduct enforcement in delegated areas. But the budget justification document also points out that EPA plans to reduce grants to the states, much of which are used for enforcement purposes, from about $3.6 billion to about $2.9 billion.
A reduction in enforcement will possibly lead to at least two outcomes. First, citizen suits may increase. These are suits by individuals to enforce environmental laws, because the agency responsible for enforcement is not addressing violations. Historically, citizen suits have been successful in extracting injunctive relief and penalties from alleged violators while increasing transactional costs, such as attorneys’ fees. A second possible outcome is that citizens will consistently complain to an agency about a facility in an attempt to have the state agency conduct inspections. As most states have policies requiring an inspection when a complaint is filed, this tactic could be effective in generating some enforcement action by the state.
While many may cheer or at least support a reduction in burdensome regulations, many also do not want to roll back regulations that have been effective in ensuring clean air and water, nor do they want to see ineffective compliance monitoring and enforcement. Only time and a final budget will tell if EPA can reduce regulations and compliance efforts and still achieve its core mission.