Trends in Federal Enforcement: Fewer Cases but More Prison Time

On February 8, 2018, the United States Environmental Protection Agency (EPA) released its enforcement statistics for its 2017 fiscal year, which ended September 30, 2017.  For this fiscal year, the number of federal criminal environmental cases filed by the United States Department of Justice (DOJ) was less than half of the number that DOJ filed in each of the fiscal years 2007 through 2013.

Smaller Budgets, Fewer Cases
While some may attribute this decline to an administration less committed to environmental enforcement, the statistics show that the decline in criminal filings began in 2013, if not earlier.  The decline in environmental criminal cases filed during the Obama era appears largely the result of cuts by Congress to the budgets of EPA and DOJ.  Cuts in these budgets have continued.

More Prison Time Despite Fewer Cases
One interesting counter statistic is the number of years of incarceration for environmental crimes.  Despite the steep decline in the number of cases filed, the number of years of incarceration for environmental crimes has increased since 2012.  Recent federal environmental criminal cases have been more likely to have resulted in a prison sentence, and that trend appears to be continuing in the Trump/Pruitt era.

Decline in Civil Enforcement
Initiation of civil enforcement cases, either by DOJ in a court or by EPA in an administrative action, has also significantly declined since 2009.  Again, budget cuts appear to be the primary reason for the decline in civil enforcement cases.  Not only have fewer civil cases been initiated, EPA’s inspection and evaluation activities have also significantly declined since at least 2012, due to the budget cuts.
While civil penalty recoveries are affected by the timing of large settlements (Deepwater Horizon, Volkswagen), statistics and anecdotal evidence suggest that EPA/DOJ has been demanding more in civil penalties for comparable cases, in recent years.

Expect Higher Penalties and More State, Local, and Citizen Enforcement
As I have stated in prior alerts, the regulated community should expect the federal government to demand higher penalties in individual enforcement cases.  Also, states, localities, and citizens (especially through environmental groups) will generally be increasing their filings of environmental enforcement cases.
For a copy of EPA’s 2017 enforcement summary https://www.epa.gov/sites/production/files/2018-01/documents/fy17-enforcement-annual-results-data-graphs.pdf

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