Washington, DC — In his first months in office, U.S. Environmental Protection Agency Administrator Michael Leavitt has de-emphasized the role of criminal enforcement, left a raft of key vacancies unfilled and failed to implement promised reforms of the agency’s criminal program, according to Public Employees for Environmental Responsibility (PEER). At the same time, 2003 Justice Department figures show that EPA has the lowest rate of prosecution for any major federal agency, with fully two-thirds of its criminal cases rejected.
This February Leavitt addressed EPA’s Criminal Investigation Division (CID) field managers saying he was “concerned” about stories he had heard about heavy-handed enforcement. Leavitt intimated that he would inject himself into criminal cases if he felt they were inappropriate.
As if underlining Leavitt’s discouragement of enforcement, top positions in the criminal program have been left vacant since the fall:
- The Assistant Administrator for Enforcement and Compliance Assurance, a position requiring Senate confirmation, has been vacant since early January when J.P. Suarez resigned to take a job with Wal-Mart. No successor has been named and EPA employees have been told that the position is too controversial to attempt to fill in an election year;
- The Director of the Criminal Investigation Division has been empty since October; in addition the Deputy CID Director slot is also unfilled with no recruitment process for it yet underway;
- The Deputy Director of the Office of Criminal Enforcement, Forensics and Training is also open.
Compounding this leadership vacuum, key recommendations of a major management review of EPA’s criminal program completed last fall have not been implemented. Tightening EPA’s referral process of cases for prosecution, adopting performance measures, engaging an independent law enforcement audit, consolidating field offices and revamping a much criticized hiring and promotion system are among the languishing reforms hailed when the management review was unveiled in December but ignored since.
“Mike Leavitt touts an approach that he calls ‘Enlibra,’ which apparently means ‘polluters go free’ in Latin,” stated PEER Executive Director Jeff Ruch, whose organization’s survey of EPA criminal enforcement agents last spring prompted the management review. “Enforcing anti-pollution laws requires not only trained investigators but also leadership committed to prosecution when so-called ‘win-win solutions’ fail to serve the public good.”
Perhaps not surprisingly, EPA’s criminal program appears adrift. According to the Executive Office of US Attorneys figures compiled by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) —
- The rate of federal prosecution of EPA’s criminal referrals has fallen to 33%, while 67% of its cases are declined for prosecution. These percentages are almost the exact opposite of overall federal averages;
- EPA’s prosecution rate is the lowest for any major federal agency, only the Small Business Administration has a rate that is lower; and
- The average prison sentence resulting from EPA cases is declining to only 5 months, one-ninth the overall federal average of 45 months of post-conviction incarceration.
The prosecution rate is a telling measure of the quality of completed investigations and whether case numbers are being inflated.
“These low prosecution rates and jail terms strongly suggest that corporations who flout anti-pollution laws will continue to enjoy competitive advantages over those companies who commit resources to environmental compliance,” Ruch argued.