How government shutdowns give polluters a free pass

We are on day 42 of the US government shutdown, but the end is finally in sight. On Sunday evening, the Senate voted to fund the federal government until January 30. This vote, in which eight Democrats joined the vast majority of Republicans in the Senate, is expected to be followed by the approval of the Republican majority in the House of Representatives and President Donald Trump. While many Democratic officials condemn the capitulation of their Senate colleagues, a resumption of lockdowns is a real possibility after funding expires next year.

One of the many ill effects of the current shutdown is that the country’s top environmental official has been off duty for weeks. Although it is too early to know the exact consequences of this malfunction, similar situations in the recent past indicate that polluters often increase their emissions during periods of lax enforcement. As such periods become regular features of the American political process, the cumulative environmental fallout could be significant.

The Environmental Protection Agency’s enforcement division is responsible for ensuring that the nation’s basic environmental laws – the Clean Air Act, Clean Water Act and hazardous waste laws, among them – are followed. From Washington, D.C. and 10 regional offices across the country, these employees monitor some of the nation’s largest polluters. They carry out surprise inspections at refineries, power plants and factories. They review data and reports to verify compliance. And when they find violations, they issue fines and work with the Department of Justice to bring violators to justice until they correct their course.

But since the shutdown began Oct. 1, the EPA has gradually laid off most of its civil enforcement staff. Initially, only a handful of employees were sent home earlier this month, and the agency blocked most employees from using unspent funds from previous budget years. However, when that funding ran out, the agency laid off most of its staff. Since only essential personnel who protect the public from imminent threats are retained during the furlough, the vast majority of law enforcement officers had been ordered to stay home by the end of the month.

“The inspection and enforcement arm of the agency has been largely shut down,” said Justin Chen, president of AFGE Council 238, the union that represents agency employees. “The vast majority of inspectors and law enforcement officers, and the attorneys who work with them to pursue settlements and other legal actions against regulated entities, are all furloughed at this time.” Chen himself was placed on leave on October 20.

Previous pauses in enforcement indicate that a lack of federal oversight may embolden polluters. Researchers at Pennsylvania State University looked at emissions data from 204 coal-fired power plants across the country during the last major federal shutdown in late 2018. They found that coal-fired plants released 15 to 20 percent more particulate matter during the 35 days the government was shut down and EPA enforcement officers were furloughed. When the shutdown ended and inspectors returned to work, emissions returned to pre-closure levels. The results were robust even though the researchers controlled for climate change, the use of dirtier varieties of coal and other factors. This suggests that factories were less likely to enforce their pollution controls when they knew they were unlikely to get caught.

“The only possibility is a temporary change in the pollution reduction device at the end of the pipeline,” said Ruohao Zhang, a professor at Penn State and lead author of the study published last month. Zhang and his colleagues relied on data reported by coal plant operators to the EPA as well as satellite data from NASA. They looked at particulate matter levels within a 1.8-mile radius of coal-fired power plants.

Although Zhang was unable to comment on the legality of such moves by operators, he said it indicated there was a greater possibility of violations. The current shutdown creates similar incentives as last time, he said. “Now, without EPA oversight, this increased possibility [of being cited for violating environmental laws] is no longer there,” he said.

Researchers found a similar trend in the spring and summer of 2020, during the COVID-19 shutdown. At the time, the EPA announced that facilities that were unable to monitor and report their emissions would be exempt from compliance. The companies accepted the EPA’s offer. Self-reported data from polluting facilities showed that companies conducted 40% fewer smokestack emissions tests in March and April 2020 compared to the same period in 2019. American University researchers also found that counties with six or more polluting facilities reporting to the EPA saw a 14% increase in particle pollution after the EPA announced its 2020 enforcement policy.

Closures ultimately send the message that no one is watching, said Jen Duggan, executive director of the Environmental Integrity Project, a nonprofit founded by former EPA enforcement staffers.

“That means communities could be more exposed to pollution,” she said, “if companies break laws, and no one from the EPA is working to be able to respond.”

EPA’s regional offices each have approximately 18 employees dedicated to managing each of three primary application areas: air, water, and hazardous and toxic waste. Chen estimated that about 600 EPA employees were responsible for enforcing the laws regionally. These employees partly oversee the many environmental enforcement activities delegated to individual states. Additionally, the EPA has also assigned personnel to enforce environmental laws in consultation with tribes, as many federally recognized tribes have not been given the authority to implement environmental laws.

The near complete halt to inspections and records processing activities will likely have significant implications for EPA’s enforcement work. For one thing, any administrative settlement the agency might want to reach with a polluter depends on using evidence less than a year old, unless the agency obtains a waiver from the Justice Department. As a result, staff tend to ramp up work at the start of the fiscal year, which begins Oct. 1, Chen said. But given that they’ve been furloughed in recent weeks, it “makes it very difficult, in terms of timing, to come to some sort of administrative settlement to get some quick resolution on some things,” Chen said.

The furloughs are the latest setback to hit EPA staff. This year, the Trump administration has carried out several rounds of layoffs and offered job buyouts to workers. Although it is unclear how many of the EPA’s enforcement staff have been laid off or resigned, the EPA is in the process of reducing its workforce by nearly 25 percent. The Department of Justice, or DOJ, has also lost at least 4,500 workers to layoffs and buyouts. As a result, the Department of Justice’s environmental enforcement arm was cut by about half.

Once the EPA identifies environmental violations, the Justice Department prosecutes polluters and enters into legal settlements with them. According to an Environmental Integrity Project analysis first reported by The Washington Post, the DOJ filed only nine major civil lawsuits against polluters in the first eight months of the Trump administration. This is a significant decrease from Trump’s first term, when the DOJ filed 53 lawsuits during the same period.

An EPA spokeswoman told the Post that the number of civil cases did not reflect lax enforcement by the Trump administration, citing other metrics in which she claimed Trump had outperformed the Biden administration, but Duggan, executive director of the Environmental Integrity Project, disagreed.

“This represents a significant slowdown in the application process,” she said. “If you remove the staff assigned to this work, you know it will have an impact. »