EPA’s Ex-Top Cop Joins Criticism of Agency’s Record on Polluters

The former head of enforcement at the EPA during the Obama years is the latest in a growing chorus of activists and academics who say the agency’s own data shows it is easing up on penalizing polluters.

The findings caught the eye of least one House Democrat as that chamber promises more oversight of the Trump administration, which is disputing Cynthia Giles’ analysis.

The Environmental Protection Agency collected $72 million in civil fines during the 2018 fiscal year from companies and individuals charged with violating environmental laws, the lowest amount in at least 25 years, according to Giles’ analysis of publicly available EPA data. Giles led the EPA’s Office of Enforcement and Compliance Assurance throughout the Obama administration and is now a fellow at Harvard Law School.

Additionally, the data indicate those hit with violations paid out less than $5.6 billion to resolve their cases during the last fiscal year, the lowest number since 2003. Giles’ findings were first reported by The Washington Post.

The figures likely mean that acting EPA Administrator Andrew Wheeler will face more questions from Congress about enforcement. The Senate Environment and Public Works Committee has scheduled a Feb. 5 confirmation vote on Wheeler to succeed Scott Pruitt as permanent administrator.

Rep. Frank Pallone (D-N.J.), chairman of the House committee with oversight authority over the EPA, described the numbers Giles highlighted as “abysmal” and said they were evidence of the Trump administration “bending over backwards to help industry” in a Jan. 24 tweet.

Big Settlements Skew Numbers

Giles’ implication that enforcement numbers are down is “not statistically valid,” Susan Bodine, current head of the EPA’s enforcement office, said in an email to Bloomberg Environment.

Giles’ data were skewed because they include several large outlier cases from prior administrations, such as the $5.7 billion civil penalty against BP for its Deepwater Horizon oil spill, Bodine said.

“EPA enforcement will continue to correct non-compliance,” Bodine said. “To suggest otherwise undermines our enforcement efforts and fails to acknowledge the good work performed by EPA enforcement staff every year.”

Although Giles provided Bloomberg Environment with her data analysis, she declined to comment further.

Enforcement Numbers Get Scrutiny

Giles is the latest of several outside voices using data to argue that the Trump administration isn’t aggressive enough at environmental enforcement.

Two other nonprofit groups, the Environmental Data & Governance Initiative and Public Employees for Environmental Responsibility, also issued their own reports based off of EPA enforcement data in recent months and they came to similar conclusions.

During his Jan. 16 Senate confirmation hearing, Wheeler sought to rebut the two groups’ findings.

He told the Senate panel that they made some “some simple mathematical errors” and that he places a greater priority on helping companies avoid violations than on punishing them after the fact.

Noisy Data?

But while the EPA says the statistics show it is tough on enforcement and its critics say they show the opposite, the truth may be that enforcement data ultimately show nothing, according to Ron Tenpas, an attorney at the firm Vinson & Elkins LLP.

“Civil and criminal penalty data on an annual basis is incredibly sensitive to particular big cases in the mix,” Tenpas, who was the top environmental official at the Justice Department during the George W. Bush administration, said. “The stats people would say the data is noisy.”

To complicate matters even further, the EPA’s annual year-end report on statistics from Bodine’s division now appears to be yet another casualty of the government shutdown.

This report typically comes out in November or December and is seen as the definitive word on the agency’s enforcement activities each year.

The report for the 2018 fiscal year won’t come until the government reopens, EPA spokesman John Konkus told Bloomberg Environment.