As EPA backs off enforcement, states and cities have little capacity to fill gap

Lani Hanson / Energy News Network

The U.S. Environmental Protection Agency headquarters in Washington, D.C.

State and local governments often have authority but lack the resources and political will to enforce pollution rules.

Update: An EPA spokesperson sought to clarify Monday that it is not suspending all enforcement and that its COVID-19 Enforcement Policy allows it to waive penalties on a case-by-case basis if the EPA concludes that noncompliance was caused by the pandemic. “We will continue to work with federal, state and tribal partners to ensure that facilities are meeting regulatory requirements, while taking appropriate steps to protect the health of our staff and the public.”

Since the Trump administration announced the suspension of much environmental enforcement during the coronavirus pandemic, advocates are calling on state and local regulators, as well as watchdog groups, to step up their efforts to fill the gap.

But that won’t be easy, whether in a Democratic-controlled state like Illinois or a Republican one like Indiana, given the impacts of the pandemic and past staffing and budget cuts that have curbed the ability of states to carry out enforcement.

In a March 26 letter, the U.S. Environmental Protection Agency indicated that polluters won’t be fined for failure to meet federal standards during the pandemic. Some experts feel the administration is using the pandemic to continue a trend of backing off on enforcement. 

A report released April 20 by the Environmental Law & Policy Center shows enforcement of Clean Water Act violations in EPA Region 5 down sharply since 2017, and incidences of noncompliance are up significantly in the region, which covers Illinois, Indiana, Ohio, Michigan, Wisconsin and Minnesota. 

The report says that state agencies are ill-equipped to pick up the slack from the federal government, as environmental enforcement agencies in the six states have seen reductions of more than 1,100 staff total, and almost $150 million in annual budget cuts between 2008 and 2018.

The situation is only exacerbated by the Trump administration’s recent decisions to roll back mercury limits, gut clean car standards and reject stricter standards recommended by federal researchers for particulate matter (soot). Those decisions, which the administration justified in part by the coronavirus’s economic impact, enshrine policies that will outlast the pandemic. 

“Capital is just seizing this moment because your local watchdogs are sheltering in place and the federal EPA has given a gift to polluters exactly when local groups are confined at home,” said Rachel Havrelock, an associate English professor at the University of Illinois-Chicago who specializes in using the humanities to engage the public on environmental issues.

State powers

State agencies are in most cases deputized to carry out enforcement of federal environmental laws including the Clean Water Act and Clean Air Act, so in theory they have already been and can continue doing the enforcement work that the EPA is suspending.

But state agencies are often hamstrung by a lack of staff and resources or political will, and the idea that the federal government would make sure the laws were being enforced was an important “backstop,” in the words of Al Armendariz, a regional deputy director for the Sierra Club’s Beyond Coal campaign, and former EPA administrator for Region 6, based in Texas. 

“This is really an awful time” for the EPA to back off, Armendariz said. “They’re just opening the door for folks who are careless or reckless, increasing the amount of pollution they are putting in the air, which could harm residents who are also dealing with the risks from coronavirus. Right now we need the strongest environmental protections to keep the public safe.”

Armendariz and others note that Trump’s rolling back of particulate matter standards is especially troubling given a recent Harvard School of Public Health study showing that people living in areas with higher particulate pollution are dying at higher rates from coronavirus. 

While regulators are facing real constraints and risks in their work, environmental advocates emphasize that much enforcement can happen remotely, including following up on past violations and monitoring the emissions and operations data companies are required to submit to regulators.

“Most coal plants have electronic monitoring systems measuring pollution from stacks,” Armendariz said. “Those kinds of reports are submitted from facilities to states, often electronically. Those are the kinds of things regulators can review and take enforcement action on if appropriate, without ever physically visiting the facility.”

Concern in Indiana 

Indiana Gov. Eric J. Holcomb’s executive order in response to the pandemic allows the state to “waive, suspend, or modify any existing rule” in light of the pandemic, and the Indiana Department of Environmental Management announced that it will use discretion in enforcement, including with deadline extensions and considering cases where facilities cannot comply with regulations because of the pandemic. The agency on its website says it has “not relaxed any policies nor has the agency issued any broad based waivers from meeting stringent regulatory requirements.”

But advocates fear the pandemic could mean polluters are not held accountable. 

“It’s already a lax environment,” said Lindsay Haake, program director for the Citizens Action Coalition in Indiana. “Enforcement should never be viewed as a nonessential duty.”

Jesse Kharbanda, executive director of the Hoosier Environmental Council, said he believes the environmental management department is earnest about continuing to do inspections and enforce regulations, but he worries that staffing constraints during the pandemic could prevent adequate enforcement. 

He said the group is also concerned that in its pandemic response announcement, the department “uses ‘encourage’ instead of ‘require’” in passages such as this one: “All regulated entities are encouraged to take all available actions necessary to ensure continued compliance with environmental regulations and permit requirements to protect the health and safety of Hoosiers and the environment.”

“While we have assurances from IDEM that they construe the desired actions as ‘requirements,’ we are concerned that the ‘encouragement’ language will cause some regulated entities to not necessarily take ‘all available actions,’” Kharbanda said. “If IDEM doesn’t set clear expectations, then some regulated entities may choose not to be so forthcoming about where they are falling short in environmental compliance.”

Kharbanda is concerned that during the pandemic, among other things, department staff may not fully enforce Indiana’s standards for outdoor wood boilers that about 8,000 households use to heat their homes. The boilers “can truly harm the respiratory health of people, and it’s precisely the type of pollution that we need to avoid in the midst of a virus that targets one’s respiratory system,” he said.

Northwest Indiana, home to multiple steel mills, power plants, an oil refinery and other heavy industry, is among the places where low-income residents already especially vulnerable to coronavirus and other ailments could suffer real-life consequences from increased pollution.

In 2012, the BP oil refinery in Northwest Indiana was forced to invest $400 million in pollution controls and pay an $8 million fine because of Clean Air Act violations. If such violations happened today, there might be fewer consequences, advocates fear. 

Holcomb and former governors Mike Pence and Mitch Daniels (all Republicans) were known as opponents of strict government regulation, with Pence refusing to comply with the Obama-era Clean Power Plan to reduce carbon emissions. Haake said that the state has already long suffered from under-staffing at agencies like the Indiana Department of Environmental Management and the Indiana Utility Regulatory Commission.  

Nonetheless, she said she has “incredible faith” in environmental department staff to hold polluters accountable, if they are given more resources and power to do their jobs. As on the federal level, she worries cuts to state enforcement capabilities will remain once the pandemic recedes. 

She noted the slowing economy “will come with short-lived environmental benefits,” especially in an industry-heavy state like Indiana. “But once that production and commerce begins to ramp up again, we’ll see Hoosiers suffer the impact of already lax enforcement and oversight,” made worse by changes during the pandemic. 

Department of Environmental Management spokesperson Sarah Bonick downplayed concerns, noting that the department “will generally not offer advance approval of noncompliance.”

“We still expect regulated entities to do everything they can to be in compliance,” she said. “However, we recognize that there are specific situations that may require flexibility on our part, and we will exercise discretion when necessary while continuing to protect public health and the environment.”

Signs of hope in Illinois 

Illinois regulatory agencies like the Department of Natural Resources and Illinois Environmental Protection Agency have suffered deep cuts over the years, particularly under previous Gov. Bruce Rauner, a Republican, as the state has struggled with a long-standing budget crisis.

The Illinois EPA saw its staff reduced by 38% and funding decreased by 25% under Rauner, and state air pollution inspections dropped 81% in the last decade, including under Democratic Gov. Pat Quinn, according to the Chicago Tribune.

Since Gov. J.B. Pritzker, a Democrat, took office last year, advocates have been hopeful about increased focus on a clean environment, though they hope the pandemic doesn’t sideline progress. Illinois EPA spokesperson Kim Biggs said that in 2019, the agency posted 192 jobs and filled 123 them, and also hired 56 people so far in 2020.

“We will continue to work through the process of building our headcount in what will be a financially challenging budget cycle for states across the country,” she said, noting that the agency will continue enforcement while taking safety into consideration during the pandemic. 

“Since the time Gov. Pritzker took office, the IEPA has made a renewed emphasis on both hiring and enforcement,” she said. “In the first year of Gov. Pritzker’s administration the IEPA issued the most violation notices since 2011 and issued the most referrals since 2015.”

The Illinois Department of Resources, which issues permits and does inspections related to coal mining, oil and gas, and other sectors, will continue inspections, permitting and enforcement though most staff are working remotely, according to spokesperson Rachel Torbert. “The Office of Oil and Gas Resource Management has automatically extended the time allowed permittees to abate issues noted in notices of noncompliance,” she added. 

Havrelock, of the University of Illinois-Chicago, authored an op-ed calling for states and localities to pass stricter regulations in light of the federal rollback, and also urged the state to tap the expertise of community organizations and universities. 

“At this time any of us are ready to give to our communities and the state,” Havrelock said. “So call up the academics. This is the moment to turn to Kim Wasserman, Juliana Pino” — prominent Chicago environmental justice leaders. “Bring them in to the [state] office of the environment. It may be totally unprecedented to do that, but look where we are.” 

Clean energy advocates in Illinois are still hopeful that Pritzker will be able to fulfill a promise made in his January State of the State address, to sign an energy bill this year that will accelerate clean energy development. Even if coal plants are facing less enforcement from the federal government, advocates reason, they are likely to scale back their operations or close as wind and solar become more and more competitive.

While Illinois’s proposed Clean Energy Jobs Act doesn’t include limits on sulfur dioxide, nitrogen oxide, particulate or other emissions related to public health, the legislation’s mandate to phase out and ultimately end carbon emissions from power plants would inherently also stop other emissions.  

Environmental Defense Fund regulatory attorney Christie Hicks said advocates see passage of the Clean Energy Jobs Act “as more important now than ever given some of these rollbacks and of course the economic stimulus that a lot of the programs [created by the proposal] would provide.”

Local leadership 

Some cities have the authority to enforce federal environmental laws, usually through agreements with their state environmental protection agencies. And local governments have significant power to curb pollution through public nuisance, land use and other municipal or county ordinances. Advocates say that given the federal rollbacks and state constraints, local authorities need to become more vigilant and proactive. 

But many major cities have poor track records, and few extra resources to increase their enforcement. 

In Chicago, an audit released last fall showed the city department of public health’s abysmal failure to monitor air quality, inspect polluting facilities or issue violations, as it is authorized to do under an agreement with the Illinois EPA. 

The disastrous demolition of a defunct Chicago coal plant on April 11, sending clouds of dust over a neighborhood, showcased both the failure of local officials in protecting citizens, and the powers that local governments have in such situations.

After the debacle, Mayor Lori Lightfoot lodged $68,000 in fines against the company demolishing the plant, stopped work and launched an investigation. Local leaders, including Kim Wasserman, called for her to go much farther by revoking the company’s permits, repealing a $20 million tax break to the company and giving residents more power over development and demolition decisions. The city could have prevented the debacle in the first place if they had more closely inspected the company’s plans and listened to residents’ pleas not to move forward with such seemingly nonessential work during the pandemic, leaders note. 

The mayor’s office did not respond to a request for comment.

“There’s a lot of anger at the fact this was done during a pandemic, and all these systems that have been set up are not working,” said Edith Tovar, an organizer with the Little Village Environmental Justice Organization in the neighborhood where the plant was demolished. 

Armendariz explained that the U.S. EPA would typically have little role in preventing or even punishing violators for such one-time situations, underscoring the important role of local governments. 

Howard Learner, executive director of the Environmental Law & Policy Center, has likewise called on the city and state to better fulfill their mandates, especially given the pandemic and federal rollbacks. But he emphasized that there’s no substitute for strong federal leadership and action. 

“States need to step up when the federal government is stepping back from its regulatory and enforcement responsibilities, but the cities and states stepping up is no substitute for the federal U.S. EPA,” Learner said. 

“There’s no way the states can replace what a well-funded and well-operating U.S. EPA can and should do when it comes to implementing and enforcing the core environmental laws and regulatory standards. The Trump administration is moving once again in entirely the wrong direction when it comes to protecting public health and our environment. It’s especially all the more disturbing given the COVID-19 pandemic.”

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