Tough New Florida Pollution Penalties Not so Tough After All
State Does Not Use Current Enforcement Power; New Policy Riddled With Loopholes
Tallahassee — A new pollution penalty policy announced with much fanfare last month is really only a modest adjustment of previous policies with little impact unless the state starts employing existing powers it has long been afraid to use, according to a legal analysis released today by Public Employees for Environmental Responsibility (PEER). Barring a change in law or putting polluters in jail through criminal prosecution – a rare event in Florida – environmental violators will be able to easily continue absorbing penalties as a cost of doing business.
On July 18, 2007, Department of Environmental Protection (DEP) Secretary Michael Sole unveiled a new civil pollution fine schedule, declaring “I want to change the idea that ‘penalties are a cost of doing business’ by emphasizing the agency’s tough stance against violators.” On close examination, however, the policy will likely have very little effect because it is largely a restatement of the old policy without any mechanisms in place to ensure that the latitude for stiffer penalties is actually used. The new policy –
- Applies to a only a very small portion of cases handled by the DEP;
- Does not require, as Secretary Sole claimed, increasing fines to capture the economic benefits gained by polluters. In fact, the state has already had this authority for years but has seldom used it. The “new” penalty guidelines don’t change the previously-existing policy; and
- Depends upon aggressive application of multi-day penalties (treating each day of non-compliance as a separate violation) for most of its potential effect. However, DEP previously had this same discretion but rarely exercised it. The new guidelines also continue a major loophole in the old policy that penalties can be waived if the corporation claims it was making efforts to comply.
“These new fine guidelines have enough loopholes, stipulations and side exits to make a Philadelphia lawyer dizzy,” stated Florida PEER Director Jerry Phillips, a former DEP enforcement attorney, noting that for the previous five years, Mike Sole was in charge of enforcement at the agency. “It will be much easier to take Mr. Sole seriously when he finally puts a single polluter out of business.”
DEP enforcement will also be adversely affected by a 37% budget cut proposed by Governor Charlie Crist. In an August 2, 2007 letter to PEER, Sole angrily denied that raising civil fines had anything to do with crippling cuts at DEP, even though a significant portion of the DEP budget, including staff salaries, comes from civil fines.
“I will take Mike Sole at his word provided he explains how in the world he is going to pursue corporate polluters while hogtied by budget constraints,” added Phillips, observing that DEP had been telling Floridians that it did not want to engage in litigation to enforce anti-pollution laws because that would cost too much and take too long. “Now, we hear that the old policies did not work but we are supposed to believe that corporate polluters will willingly accept the higher penalties without a fight. Instead of merely substituting one fiction for another, why not try being straight with the public?”
As part of its analysis, PEER recommends that DEP start tracking enforcement performance by the agency offices and hold upper management accountable when tougher penalties are not applied, widen the application of higher fine schedules and begin criminally prosecuting serious cases to put corporate violators in prison. “Prison time cannot be absorbed as a cost of doing business,” Phillips concluded.