By David M. Uhlmann, JD
University of Michigan Law Professor
Former Chief, Environmental Crimes, DOJ (2000-2007)
In the more than seven months since he became administrator of the Environmental Protection Agency, Scott Pruitt has been on a reckless mission to dismantle public health safeguards and environmental protections. Mr. Pruitt’s E.P.A. wants to postpone or roll back dozens of rules that save lives and provide clean air and water, including efforts by the Obama administration to combat climate change and to protect rivers and streams from pollution.
Last week brought more bad news: Mr. Pruitt is proposing to end a decades-long agreement with the Justice Department that funds the E.P.A.’s lawsuits against polluters responsible for creating hazardous waste sites. Neither Congress nor the courts will have the final say. The decision rests with the Trump administration.
Since the Reagan administration, the E.P.A. has reimbursed the Justice Department for the cost of suing companies as part of the Superfund hazardous waste site cleanup program. In communities like the Love Canal neighborhood in Niagara Falls, N.Y., and Times Beach, Mo., the Justice Department sued polluters to force them to pay the cost of relocating residents. More recently, the E.P.A. covered the upfront costs of suing the W. R. Grace chemical conglomerate in the small town of Libby, Mont., where hundreds have died from asbestos poisoning, and compelling General Electric to clean up decades of PCB pollution that ravaged the Hudson River.
But in its budget proposal, the E.P.A. said it no longer intended to reimburse the Justice Department for Superfund litigation costs.
These lawsuits are expensive, with Justice Department lawyers doing battle, often for years, with the largest law firms in America. But the return on the agency’s investment is substantial. The Justice Department recovers hundreds of millions of dollars every year in cleanup costs to replenish the Superfund program’s coffers, which enables the E.P.A. to conduct more hazardous waste cleanups, including emergency responses to chemical releases like those that occurred after Hurricane Harvey.
For the Environment and Natural Resources Division at the Justice Department, which represents the E.P.A. and other federal agencies in court, funding from the E.P.A. is essential. In its budget proposal for 2018, the Justice Department indicated that it expected to receive approximately $25 million from the E.P.A., enough to pay for 69 lawyers as well as support staff, nearly 20 percent of the division.
If the E.P.A. stopped paying for Superfund work, significant layoffs would be likely at the Justice Department. But that would be just the beginning. More than half of the Environment Division’s work is defensive, meaning it represents the E.P.A. and other agencies in lawsuits brought by regulated industries, environmental groups and state attorneys general. That work is considered nondiscretionary — the Justice Department must represent the government when federal agencies like the E.P.A. are defendants — so the spending cuts and layoffs would have to come from elsewhere in the Environment Division.
Mr. Pruitt’s proposal is a breathtakingly bad idea, giving polluters license to do their dirty work with less fear of punishment and a greater ability to outlast an understaffed Justice Department in court. The victims would be ordinary Americans, many of them poor and minorities, who often live closest to where environmental violations occur and where the worst Superfund sites are located.
Yet blocking Mr. Pruitt will depend on opposition from Attorney General Jeff Sessions and intervention by the White House, which so far has shown no inclination to curtail the E.P.A. administrator’s anti-environmental zeal.
For decades, Republican and Democratic administrations alike have prosecuted environmental crimes and sued polluters to recover the cost of cleaning up their messes. Vigorous enforcement of the environmental laws has been nonpartisan, because it protects our communities from harmful pollution and ensures that polluters don’t get a free ride at the expense of taxpayers.
Prosecuting polluters also makes sense for American businesses, most of which are committed to meeting their legal obligations and conducting their affairs in a responsible, ethical manner. Why should good companies that invest in environmental compliance be at a competitive disadvantage against the lawbreakers that would be harder to bring to justice under Mr. Pruitt’s cynical ploy?
Mr. Pruitt, a former Oklahoma attorney general, claims state governments can fill the void created by a diminished E.P.A. His argument ignores the fact that most states lack the resources to take on big polluters.
Before the E.P.A. was created in 1970, the United States saw what happens when the federal government does not protect our communities from pollution: the Cuyahoga River on fire in Cleveland, a devastating oil spill sullying the beaches in Santa Barbara, Calif., and thousands of drums of hazardous waste, many leaking toxic chemicals, at the Valley of the Drums in Kentucky.
The system of environmental laws in the United States resulted from bipartisan consensus about the need to protect public health and the environment from harmful pollution. Previous E.P.A. administrators, in Republican and Democratic administrations, have supported strong enforcement of those laws, recognizing that laws are only as good as their enforcement.
By weakening E.P.A.’s commitment to bringing polluters to justice, Mr. Pruitt abandons communities scarred by pollution and undermines the rule of law.