Last week, members of the American Federation of Government Employees (AFGE) union at EPA released an internal Agency memo describing the Agency’s proposed plan to cut back on specific areas of enforcement in response to looming budget cuts in FY 2013. The memo, by Larry Starfield, EPA's Deputy Assistant Administrator in the Office of Enforcement and Compliance Assurance lists “Areas of Proposed Budget Adjustment for FY13.” Federal agencies have an unenviable task: they must plan for budgets that are unpredictable; and at this time we don’t know where next year’s EPA budget will ultimately end up. Nonetheless, the proposals in the Starfield memo are troubling. The contingency plan it sets forth raises concerns about the future of enforcement at EPA.
Several points regarding proposed budget cuts at EPA seem worth noting. First, even the most draconian cuts to the Agency will do almost nothing to balance the federal budget since EPA appropriations account for less than a tenth of one per cent of total federal expenditures. Moreover, although cuts across the board are expected for many federal programs, cuts to EPA’s Office of Enforcement and Compliance Assistance are particularly unwise because effective enforcement is critical to the integrity and success of EPA’s work—a fact well known to regulated industries and their supporters in Congress. EPA is already severely underfunded in a number of areas, including enforcement. Regrettably, these proposed cuts will further handicap the Agency’s ability to protect human health and the environment.
If cuts must be made, the Agency’s approach of prioritizing certain enforcement areas—rather than planning for completely equal cuts across the board—makes good sense. The goal of enforcement is to have a deterrent effect both on individual actors and groups of industries and municipalities. EPA’s contingency plan generally preserves a deterrent approach in a number of priority areas under the Clean Air Act, Clean Water Act, Superfund, and other environmental statutes. By pursuing cases in these priority areas, the Agency can maximize its resources.
Regrettably, however, the proposed plan is unclear with respect to what EPA will define as a “minimal federal presence” in enforcement of sections 311 and 312 of the Emergency Planning and Community-Right-to-Know Act, stratospheric ozone, brownfields, and other areas. Such a presence really increases the credibility and leverage of individual state agencies in these areas. How the Agency defines minimal federal presence term is likely to be crucial with regard to the extent to which EPA will be able to maintain an “enforcement presence that will deter violations.”
Third, the Agency’s plan to increase reliance on the states for enforcement and third-party auditors, contractors, and labs to assess private compliance is unlikely to compensate for the cutbacks proposed in the plan, in an effective way, without persistent, continuing EPA oversight. The Government Accountability Office has concluded that EPA needs to exercise greater, not less, oversight over state enforcement efforts. The dearth of federal funding for state environmental enforcement, combined with states’ own funding shortages, means that many state programs alone are unlikely to keep pace with increasingly complex and diverse regulations needed to protect the water, air, and land across the country. Diligent EPA supervision will be critical to their success in many instances.
Shifting the enforcement burden to third parties is also like to be ineffectual without vigorous Agency oversight. This will be especially true where third party auditors, labs and contractors are hired and paid for by regulated parties themselves. Such arrangements may very well undermine the credibility, neutrality and independence of the auditors that is absolutely vital to their work. Some form of governmental licensure of the auditors, contractors and labs also seems necessary to assure their competency.
In sum, any form of budget cutting in EPA’s severely understaffed enforcement program is likely to have an adverse effect on the robustness and effectiveness of the Agency’s critical enforcement work. If cuts are forced upon the Agency, EPA will certainly be wise to focus its resources on enforcement programs that will address the more serious threats to public health and the environment. Although Larry Starfield’s memo is a start in that direction, his proposed contingency plan seems uncomfortably vague in certain areas. It is also unrealistic in its proposed reliance on states and third parties to pick up the work that EPA would need to abandon. The Agency’s staff may well realize this. Nonetheless, as it stands, the plan comes across as unjustifiably optimistic. In a dire, worst case situation, EPA can do better in deciding where to cut back its efforts. One hopes it will do so.
Joel Mintz, CPR Member Scholar; Professor, Nova Southeastern University Law Center -- Fort Lauderdale, Florida. Bio.
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