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Twenty states have zero dedicated criminal enforcement attorneys or investigators, according to a document maintained by the Environmental Protection Agency’s (EPA) Office of Enforcement and Compliance Assurance. The Capitol Forum obtained the document through an open records request.
To effectively monitor, enforce, and deter criminal environmental conduct, states should have dedicated staff members and resources, according to interviews with former EPA staff who collaborated with state-level environmental programs during their careers.
As the EPA and state agencies continue to grapple with alarm over ‘forever chemicals’ found throughout the country’s water supply, the Flint water crisis, or repeat offenders, like the Port Neches chemical plant, this document reflects the lack of state resources presently dedicated to criminal environmental enforcement.
In preparing the document, an EPA staff attorney compiled the number of “full-time employee[s] whose job is investigating and/or prosecuting pollution control crime” in all 50 states, Puerto Rico, the District of Columbia, and the U.S. Virgin Islands, based on the document and additional context provided by an EPA spokesperson.
In the document, dedicated levels of at least two staff, or “adequate,” are highlighted green; staff levels of zero, or “insufficient,” are highlighted in red; and staff levels of one, or “n/a,” are unhighlighted. Only eight states were highlighted green for both inspector and attorney columns.The document was last updated on February 12, 2019.
In response to The Capitol Forum’s questions about state personnel vacancies, an EPA spokesperson wrote, “EPA’s regulations establishing requirements for state pollution control programs do not specify any required level of staffing for either criminal or civil enforcement.”
“Where a state does not devote dedicated resources to pollution crime enforcement,” the spokesperson continued, “EPA can sometimes identify other partners, such as state police or investigators from an Attorney General’s Office who are willing/able to work environmental investigations in addition to their usual docket … the demands on EPA criminal enforcement staff in a particular state have less to do with the availability of state partners as they do with the volume and nature of regulated industry in the state, along with the compliance culture which characterizes those industrial sectors.” The agency’s full comment is available here.
EPA data and media reports demonstrate a sharp decline in federal criminal environmental prosecutions, convictions, and restitution since the beginning of the Trump administration.
Since 2018, the EPA has relinquished even more authority to states and is planning to continue that trend, expanding state’s responsibilities alongside budget cuts on both the state and federal level.
“State level criminal environmental enforcement has been a long-standing challenge, but the recent de-emphasis of enforcement across the board is relevant,” Cynthia Giles, former Assistant Administrator of the Office of Enforcement and Compliance Assurance said in an interview with The Capitol Forum.
Giles continued, “The problem didn’t arise because of the change of this administration, but the problem has been made worse. When the EPA pulls back on enforcement it takes away a backstop and that undercuts states. When EPA is stronger on enforcement it makes states stronger.”
Some states with no dedicated staff defend their programs, defer to other agencies. Four former EPA officials in leadership roles interviewed by The Capitol Forum emphasized how a state’s commitment to its criminal enforcement program is demonstrated through its staffing.
“A program with zero staff dedicated to criminal enforcement evidences no commitment to criminal enforcement,” according to an interview with former EPA Assistant Administrator Steven Herman.
“Such a failure significantly undercuts any other efforts the state may be making. Without a dedicated criminal enforcement staff, you do not have a criminal program. To the extent that criminal enforcement is the ultimate deterrent and prevention enforcement tool, it’s nonexistent. Without prevention and deterrence, government action is relegated to after the fact cleaning up efforts—after the damage has been done,” Herman concluded.
The Capitol Forum reached out to both the Attorney General and environmental agency in states that had zero dedicated criminal enforcement staff according to the EPA document.
In response, 16 state Attorneys General and environmental agencies defended the adequacy of their current programs, either citing federal and state inter-agency support or contesting the results of the document. Almost every agency that responded endorsed an effective criminal program’s deterrent effect on future criminal conduct.
The Indiana Department of Environmental Management, for example, defended the present system without refuting criminal enforcement vacancies: “we believe that [a dedicated criminal enforcement staff] does have a deterrent effect because many of the individuals who commit these crimes work within a particular industry. When word gets around that someone within that industry was charged criminally, others in the industry may be deterred from committing similar offenses,” the agency wrote in an email to The Capitol Forum.
Other states defended their programs by detailing remedies besides criminal enforcement. The South Dakota Department of Environment and Natural Resources (DENR) and Wyoming Department of Environmental Quality highlighted their ability to use settlements, compliance assurance, remediation or other means to address non-compliance, regardless of a lack of dedicated criminal enforcement staff.
South Dakota’s DENR wrote, for example, “Many of the environmental violations seen in South Dakota are misdemeanors which are usually prosecuted by the county State’s Attorney. In situations where criminal enforcement is necessary, DENR works with the South Dakota Attorney General’s (AG’s) Office to develop a case. The AG’s office has staff attorneys dedicated to working environmental issues and has and does prosecute environmental cases criminally, civilly, and administratively. This process has worked in South Dakota and has allowed DENR to successfully implement its delegated federal programs.”
Other states cite more than just its state agencies to bring a criminal action, according to the Mississippi Department of Environmental Quality, Virginia Department of Environmental Quality, and Washington Department of Ecology statements sent to The Capitol Forum. “In many cases,” the Virginia Department of Environmental Quality wrote,“we refer the matter to the federal level, the Environmental Protection Agency.”
Fred Burnside, former Director of EPA Office of Criminal Enforcement and Forensics Training who now runs an environmental consulting business, told The Capitol Forum, “There are a number of problems with state criminal environmental enforcement, but it ultimately falls back on EPA if states can’t, or don’t want to, bring an action. There are times where there are task forces and other efforts to collaborate, but it is often difficult to get State resources.”
Burnside continued, “Any good criminal case would be a great civil case.If the states get a civil penalty, that would be a great success. The problem is, you don’t put a cap on what the bad actors can do, they will pay a fine and do it again.”
Twenty-five state Attorneys General and environmental agencies either declined to comment or did not respond to The Capitol Forum’s multiple requests.
Only Florida and Washington—which both currently have no dedicated criminal enforcement staff according to the document—pointed to recent efforts to bolster their criminal programs.
A table of the states with neither a criminal environmental enforcement attorney nor inspector as listed in the EPA document is at the end of the article. Full statements, where provided, are hyperlinked in the right column.
Dedicated staff is important to effectively prosecuting cases, experts say. Experts with experience in cooperating with states during federal enforcement actions explained why a specialized, dedicated staff is important to the successful application of criminal environmental enforcement in interviews with The Capitol Forum.
Former EPA Acting Special Agent in Charge, Kelly O’Neill, who was responsible for responding to and investigating environmental crimes said, “more support would have made a difference. I can think of many instances … in order to execute a search warrant, talk to a witness miles away—if the state would have had these kinds of resources and staff in place, they would have progressed more smoothly and efficiently.”
O’Neill recounted occurrences where he would borrow personnel from the FBI or other law enforcement agencies. O’Neill said that while they were skilled professionals, “They had no working knowledge of the subject matter. They would be great at questioning witnesses—but they don’t know the nuances. Is it a point source discharge? Or is it groundwater? That makes a difference in an actionable criminal scenario.”
Former EPA Office of Enforcement and Compliance Assurance Assistant Administrator Cynthia Giles echoed O’Neill’s sentiment, saying, “environmental cases are a special type of law enforcement that requires investigators with technical knowledge like chemistry, air dynamics, water pollution, and sampling. You need people who are trained for their work to stand up in court. If you don’t have those people, it will be really hard to make these cases. It’s the same on the legal side—these cases are more complicated than your typical hand-to-hand drug buy that a prosecutor may be more familiar with. They are hard to bring. The Clean Air Act is complex.”
In response to the lack of dedicated, specialized staff, Giles provided a big picture view: “My fear is when you don’t have dedicated prosecutors for this … the lack of staffing makes the environmental cases less attractive, because they require more work on both the technical and legal side. My experience is that dedicated prosecutors make a big difference in working complex cases.”