Pollution Prosecution Plunge Continues under Biden
EPA Criminal Referrals, Prosecutions, and Convictions Not Rebounding
Washington, D.C. – Record low criminal anti-pollution enforcement levels under Trump remain largely unchanged so far under Biden. One key measure is getting substantially worse, however: U.S. Environmental Protection Agency referrals for prosecution in FY 2021 fell by one-third from just the prior year. This represents the lowest number of new cases developed in 33 years, and less than half the new cases that EPA referred just eight years earlier, according to figures compiled by Public Employees for Environmental Responsibility (PEER).
Adding to these dismal numbers are early indications of even lower rates of EPA criminal referrals and prosecutions during FY 2022, the period that began October 1, 2021.
The startling low number of new case referrals may be a function of the failure by EPA to hire many more criminal investigators. Presently, the number of agents in EPA’s Criminal Investigation Division (CID) stands at only 161, which, while a slight increase over recent years, is still less than the 175 agents working in 2012, and well below the 261 agents EPA employed in 1998. Today’s CID force level is also well below the 200-agent minimum threshold set by Congress in the U.S. Pollution Prosecution Act of 1990.
In addition, in response to a PEER Freedom of Information Act request, EPA stated that it “does not maintain records pertaining to either the percentage or rate of CID agent turnover (or retention), including the seniority level of departing agents, or an analysis of whether CID agents are leaving the agency more quickly after initial training than was the case in prior years.”
“Like a spigot being tightened on a pipeline, fewer agents mean fewer investigations, which later translates into fewer prosecutions and convictions,” stated PEER Executive Director Tim Whitehouse, a former EPA enforcement attorney, noting that many CID agents are CPAs and attorneys who specialize in corporate crime. “This lack of investment in rebuilding the Criminal Investigation Division suggests prosecuting polluters remains a low priority at EPA.”
Justice Department records collected by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) indicate that during FY 2021 –
- EPA produced only 152 criminal referrals, a substantial decline from the prior two years. In the first month of FY 2022, it produced only 10 referrals putting it on a pace below that of any year since 1986 when TRAC first started collecting this data;
- Justice filed only 66 prosecutions on EPA cases. While this was a slight uptick from the previous year, it was lower than any other year back to 1992. Justice filed only five cases in FY 2022’s first month, putting it on a pace lower than any year after 1989; and
- Justice obtained only 53 convictions, one more than the year prior but fewer than any other year dating back to 1995. The FY 2022 number projects to a more than doubling total convictions, but even that increase would be lower than any year back to 1996.
In addition, the Justice Department declines to prosecute more than half of the cases EPA refers to it. But EPA does not analyze the reasons for this relatively high rate of case rejection.
“EPA’s criminal enforcement is now at its lowest ebb in this century and shows little sign of altering its downward trajectory,” concluded Whitehouse, pointing out that civil enforcement often does not recoup the financial gain from corporate corner-cutting. “Absent criminal prosecution, many corporate polluters will be able to escape any meaningful punishment.”