2023 was by far the hottest year on record—and might be one of the coolest we’ll experience for the rest of our lives. Along similar lines, U.S. agencies are perhaps as empowered as they ever will be to go after corporate polluters in 2024. The Supreme Court could soon delight right-wingers and their C-suite funders by overturning the so-called Chevron doctrine, which holds that courts defer to agency expertise in interpreting federal statutes. If they take the White House, Republicans promise to further weaken federal oversight by gutting protections for the environment and public health while decimating the civil service.
But that hasn’t happened yet. So why is the Biden administration already letting so many corporate polluters off the hook? The Department of Justice prosecuted fewer corporations in fiscal year 2022 than at any point since 1994, per an analysis published by the watchdog group Public Citizen in October. The overwhelming majority of corporations it did prosecute (81 percent) had fewer than 50 employees, according to the department’s annual report; just 7 percent had more than 1,000. By its own estimation, enforcement efforts by the Environmental Protection Agency reduced, treated, or eliminated fewer pollutants than such efforts have at any point in the last decade. Also in fiscal year 2023, which started in October 2022, the EPA charged fewer criminal defendants than it has at any point in the last decade.
The EPA did increase enforcement efforts last year, boasting a 70 percent uptick in criminal cases opened over the previous year, as well as a 30 percent increase in inspections; the EPA conducted more inspections last year than at any point since 2018. It demanded 57 percent more in penalties, fines, and restitution from violators than in the previous year. And the agency has also outpaced goals laid out in its strategic plan for 2022 through 2026, having conducted 60 percent of on-site inspections in environmental justice communities.
The bar for improvement was shockingly low, though. In fiscal year 2022, EPA civil enforcement cases plummeted to their lowest levels in 22 years, according to an analysis by the Environmental Integrity Project. Jail time for criminal defendants reached an all-time low. Fewer criminal cases were opened in 2022 than at any point since 1992. An EPA spokesperson did not respond to a request for comment in time for publication.
There’s plenty of blame to go around for the agency’s low enforcement numbers—much of which has nothing to do with the Biden administration. For two years, the Senate refused to confirm Biden’s pick to head the EPA’s Office of Enforcement and Compliance Assurance, Assistant Administrator David Uhlmann. Congress has also largely declined to reverse longer-term funding shrinkage, which left the agency with a 2021 budget just half the size of what it had been 40 years prior, adjusted for inflation. Lawmakers agreed to a modest 6 percent boost in the EPA’s budget for fiscal year 2023, but it continues to fight an uphill battle against decades of attrition and cuts. While the agency bolstered its enforcement program with 300 additional staff last year, it has lost 950 staffers over the last decade. As of 2022, the agency’s civil enforcement had just two-thirds the staff it did in 2012, and its number of criminal enforcement agents had dropped by around 20 percent. The agency could lose even more personnel if Trump wins a second term in office. As Axios and Government Executive have reported, Trump’s aides are working on a radical plan to reclassify civil service positions as political appointees. (The Office of Personnel Management has proposed a rule to safeguard existing civil servants and protect them from political reprisals.)
Tim Whitehouse, a former EPA enforcement attorney and the executive director of Public Employees for Environmental Responsibility, praised the Biden administration’s recent improvements on enforcement while acknowledging the strong headwinds such efforts face. “It takes years of sustained funding and political support to build a good enforcement program,” he told me. “The instability in Congress is not only demoralizing to EPA staff but undermines their ability to think strategically over the long term.”
The problems at the EPA are distinct but not unrelated to those at the Department of Justice, which handles environmental crimes via its Environment and Natural Resources Division, or ENRD. Prior to joining the EPA, Uhlmann—the EPA assistant secretary for enforcement—had served as the longtime head of that division’s Environmental Crimes Section, from 1990 through 2007. The EPA sends its most serious civil and criminal cases to ENRD, which—as a relatively underfunded office—often relies on other agencies in helping to choose which fights to take on. In fiscal year 2022, the EPA deferred fewer cases to DOJ (88) than at any point since 2000 and concluded fewer civil judicial cases than it had since that time, as well. As the Environmental Integrity Project notes, even Trump’s EPA concluded 94 civil cases and deferred 106 cases per year to the DOJ per year, on average.
The Department of Justice’s overall approach to corporate crimes has come under intense scrutiny from advocates. While watchdogs have lauded some steps the department has taken during Merrick Garland’s tenure as attorney general—like finally establishing a database on corporate crime—Biden’s DOJ has also leaned heavily on leniency agreements that allow companies to defer or avoid prosecution, and encouraged companies to scapegoat individual employees so as to avoid a broader charge. Kenneth Polite Jr., former assistant attorney general for DOJ’s Criminal Division, revised the division’s corporate enforcement policy so as to limit prosecutions. Last January, he declared that
if a company voluntarily self-discloses, fully cooperates, and timely and appropriately remediates, there is a presumption that we will decline to prosecute absent certain aggravating circumstances involving the seriousness of the offense or the nature of the offender.
In the same speech, Polite added that “we will generally not require a corporate guilty plea—including for criminal recidivists.” He left the DOJ seven months later to join the law firm Sidley Austin’s private corporate defense practice. In response to criticisms in December that the department was being too lenient with corporate criminals, a DOJ spokesperson told The Washington Post that the department “is focused on the impact of our prosecutions, not just the number of them. We pour resources into bringing the most serious cases against the most significant wrongdoers.”
Public Citizen Research Director Rick Claypool, who authored the report referenced above, argues that the DOJ’s current approach to corporate crime enforcement “avoids the deterrent effect of prosecuting corporations and the systemic reforms that happen as a result.” Those tracking both EPA and DOJ say the agencies seem reticent to take on big, risky cases. “EPA should not just be taking on cases that don’t result in strong political resistance, but taking cases that prevent the most public health harm,” Whitehouse said.
The stakes of enforcement will get higher over the coming years. As billions of dollars in federal subsidies flow into fledgling technologies like hydrogen energy and carbon capture and storage via the Inflation Reduction Act, regulators have been eager to delegate oversight of new activities to states and foster close ties to the industries they’re meant to regulate. At the tail end of last year, for instance, the EPA granted Louisiana’s notoriously industry-friendly Department of Natural Resources the power to approve wells used to permanently sequester captured carbon in underground rock formation. The state has dozens of pending carbon capture projects, which can pose considerable environmental and public health risks if not properly built and maintained.
Gulf Coast communities already grappling with polluting fossil fuel and petrochemical infrastructure are skeptical that Louisiana’s DNR will prioritize safety over corporate interests. “Given all that the federal government is doing with public money to support expanded industry down there, there has to be a counterbalance of aggressive enforcement and oversight of failing Louisiana agencies,” says EarthJustice President and environmental attorney Abigail Dillen. “For as long as I’ve been practicing law, I have yet to see EPA take back a program that’s been delegated to the state because the state is failing to live up to federal standards.”
In the best of circumstances, that is, regulators charged with setting rules for potential growth industries are doing so with paltry staff and resources. It’s understandable why the administration might want to take some of the load off agencies already strapped for cash and staff, delegating more enforcement responsibilities to states and the private sector. But federal agencies’ shoddy track record at holding either corporate polluters or wayward state regulators accountable doesn’t inspire confidence in the regulation of these emerging and potentially hazardous technologies.
Republicans are preparing to take a sledgehammer to an already beleaguered administrative state should they take the White House, Congress, or both in November. The Biden administration’s window for enforcing the country’s environmental protections is rapidly closing. Unfortunately, some federal agencies are acting like the GOP has already won.
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