New Environment Enforcement Boss Expected to Get Tough on Equity

Companies that flout environmental laws can expect tighter scrutiny now that David Uhlmann has finally been confirmed to become the EPA’s chief enforcer, legal analysts predict.

No sharp crackdown is expected, but as a Senate-confirmed official, Uhlmann now has the imprimatur and authority to flex his muscles in ways his predecessors—who only served in acting capacities—couldn’t.

One of the areas where Uhlmann is most likely to act decisively is environmental justice, said Carl Tobias, a law professor at the University of Richmond.

That issue is not only a long-standing concern for Uhlmann—who led off his 2021 confirmation hearing by describing how he was a lead prosecutor on the first environmental justice criminal trial in the US—but also a top priority of Environmental Protection Agency Administrator Michael Regan.

“This is where Uhlmann has experience,” Tobias said. “He’s shown he can work well and effectively and fairly in those contexts. He’s really been on the cutting edge of that from a litigation perspective. I think Regan will be happy to have someone with that kind of expertise.”

Matthew Davis, a former EPA health scientist and congressional affairs staffer, predicted that Uhlmann will deliver a cross-cutting approach that bundles together groups of violations in areas such as particulate matter, vehicle emissions, and lead dust hazards that also strike vulnerable communities.

“I think he’ll do his best to take a more holistic approach to communities,” Davis said.

More broadly, one of the areas where Uhlmann could get creative is in finding new ways of catching violations and “getting to the evidence more quickly,” said Eric Schaeffer, the EPA’s former director of civil enforcement.

In the context of environmental justice, that could mean “moving a little faster” to, for example, install “tons and tons of monitoring” in communities where high levels of carcinogens are known to exist, Schaeffer said.

Under Regan, the EPA set a goal of conducting 45% of all inspections in fiscal 2022 at facilities located in or affecting vulnerable communities—a 20% increase over the historical average—which the agency went on to surpass, posting a 57% mark. The agency is also trying to better target inspections in environmental justice communities and has launched new air and water monitoring efforts in underprivileged communities.

Still, the agency’s budget for enforcement hit an 11-year low in fiscal 2022, dropping even lower than the levels set during the Trump era, according to a recent independent analysis from the Environmental Data and Governance Initiative.

Supreme Court Reactions

Another area where Uhlmann could get tough is power plant emissions, perhaps as a way to make up for the loss the EPA suffered last year when the Supreme Court trimmed the agency’s authority to regulate greenhouse gas emissions, Tobias said. Those efforts would likely get a boost if and when the EPA is able to finalize its proposed carbon standards for coal and natural gas-fired power plants.

Similarly, Uhlmann may try to get tough on protecting wetlands to compensate for the Supreme Court’s decision this year in Sackett v. EPA to limit what qualifies as a federally protected waterway.

“There’s a vacuum there after Sackett,” Tobias said. “Someone has to fill it in.”

But Uhlmann must also be careful not to bring cases that “look like revenge for court decisions,” said Schaeffer, now executive director of the Environmental Integrity Project. “He’s too canny not to stay on the right side of the law.”

Uhlmann is also likely to pursue the Office of Enforcement and Compliance Assurance’s core priorities, which include reducing excess emissions of harmful pollutants, air emissions from hazardous waste facilities, accidental releases at industrial facilities, drinking water violations at community water systems, and the proliferation of aftermarket defeat devices for cars, said Davis, now vice president of federal policy at the League of Conservation Voters.

Supplemental environmental projects—beneficial projects that violators undertake as part of their settlements with the government—may also rise, given that Uhlmann has already praised the Biden administration’s 2022 decision to reinstate their use after they were largely scrapped during the Trump era.

“We very much want to see SEPs utilized again in our civil settlements,” Uhlmann said at an American Legal Institute conference in February. “They’re good for communities harmed by pollution. They’re good for companies. There’s no good reason why we haven’t been doing them, and we hope to be doing a lot more of them in the coming years.”

Ongoing Crackdown

The EPA had already taken strides to get tougher on enforcement even before Uhlmann was confirmed.

For example, in its most recent enforcement report, the agency said it had boosted its monitoring activities in fiscal 2022 back up to its highest level in seven years.

But the arrival of a Senate-confirmed head gives OECA extra clout, according to Anne Joseph O’Connell, a law professor at Stanford University who specializes in the federal bureaucracy.

“While interim leaders typically have the same formal authority as confirmed officials under the Federal Vacancies Reform Act and specific agency succession provisions, acting officials do not usually wield the same power in practice,” O’Connell said. “Confirmed leaders have more buy-in—from inside the agency as well as outside of it, including the White House, Congress, and the public.”

A confirmed official is more empowered to make long-term and strategic decisions, especially concerning an office’s budget, said Valerie Smith Boyd, director of the Center for Presidential Transition at the Partnership for Public Service.

“A confirmed official is in a better position to work with the White House and be forceful,” she added. “And it’s more obvious that the official’s public-facing work is responsive to and has the trust of the administration.”

Still, the fact that Uhlmann may only be in his job for less than a year and a half—depending on whether or not President Joe Biden wins reelection next November—is bound to weaken him, according to Boyd.

“When individuals wait months and years for confirmation, it decreases the already short time that they have to enact the priorities of the president,” she said. “This matters for the career workforce as well. They are looking for some continuity and consistency of policy. When you have a string of acting officials, it can be challenging to trust that you’re fully enacting the priorities of the agency.”