EPA’s FY 2024 Enforcement Results
For the most part, the new EPA enforcement numbers are a mixed bag that reflects a return to pre-COVID numbers during the first Trump Administration. There are a few preliminary points to make for necessary context:
Many of the numbers are lagging indicators. For example, civil and criminal penalties obviously come at the end of an enforcement action after it has been investigated, charged (or a complaint filed in a civil case), and resolved by settlement, guilty plea, or at trial. It is not at all unusual for those activities to take multiple years, so some of the statistics are more reflective of past efforts than current ones.
Cases come in different shapes and sizes. A five co-defendant criminal case involving hazardous waste dumping is certainly important, but it is not particularly complex compared, for example, to some of the diesel software investigations of major automakers over the past few years. Less complex cases take less time to resolve, and multiple defendants can inflate case initiation and resolution numbers.
Big cases cause big spikes. EPA correctly points this out in its report.
Some of these numbers are out of EPA’s control. EPA depends on the Department of Justice to bring judicial civil and criminal enforcement cases (as opposed to cases that EPA handles itself administratively). EPA and DOJ have little control over the calendars of federal judges and less over the decisions of juries.
EPA’s onsite inspections (in blue above) have roughly returned to the levels of FY 2018 and FY 2019 before the COVID-19 pandemic, when onsite inspections were difficult because of travel restrictions and access to facilities. During that period, EPA significantly increased its use of “offsite compliance monitoring,” which is reviewing information submitted by the regulated entities. EPA’s use of onsite inspections has increased, but its use of offsite compliance monitoring remains strong. Before President-Elect Trump’s first term, EPA regions were not consistent in what they counted as inspections and some regions inflated their numbers. For example, in some regions it had been common for an EPA inspector to visit an office where records related to underground injection wells were located and count a review of a folder related to a well as an inspection.
Total Civil Enforcement Case Conclusions are a lagging indicator, where cases have been in the pipeline for some time. The trend again returns to roughly FY 2018 numbers, and the vast majority of these (blue and yellow above) relate to administrative actions, as opposed to civil judicial case conclusions (red above), which have been roughly consistent over the years. Civil judicial cases generally represent more serious actions and rely on the Justice Department and the courts for resolution.
FY 2024 injunctive relief numbers again essentially returned to FY 2018 and FY 2019 levels. The spike in 2021 related to three wastewater treatment cases against the cities of Houston, New York, and Dekalb County, Georgia.4 Injunctive relief is an effective way for EPA to quickly address environmental harm early in the process without having to wait for a judicial case to wind its way through the system.
Criminal Defendants Charged represents cases in midstream between investigation and resolution. It is likely that many of the 121 defendants charged in FY 2024 were among the 199 investigations opened in FY 2023 (which would mean that roughly 78 (or nearly 40 percent) of those investigations did not lead to criminal indictments). These are judicial cases that rely on DOJ for prosecution. While it is true that FY 2024 saw the most defendants charged since 2019, the numbers involved here are fairly consistent back to 2017; and as with the number of investigations opened, it is difficult to know from the numbers alone how sophisticated the cases are. In addition to the increased funding explained above, EPA notes that it hired 18 new criminal investigators and anticipates that these numbers will increase in the future.
Criminal Sentencing Results in years of incarceration is also interesting. This is a lagging indicator for cases that were likely investigated over the past year or more. The numbers are also out of EPA’s control, as DOJ and the courts must approve plea agreements, and sentencing is heavily influenced by the Federal Sentencing Guidelines. EPA correctly notes that the FY 2023 spike (83 of the 106 years) resulted from the $1 billion Washakie biofuel renewable energy tax fraud case (that was indicted in August of 2018).7 Otherwise, the number of years of incarceration have been relatively low since 2021 – likely due in part to the lingering effects of COVID, perhaps also due to charging federal criminal cases where incarceration is less warranted under the Sentencing Guidelines and in the eyes of the courts. It is also unclear whether these numbers account for situations where a defendant pled guilty to or was convicted of non-environmental Title 18 crimes, such as False Statements or Obstruction of Justice.
EPA again explains the spikes in Criminal Fines and Restitution and Court Ordered Environmental Projects in FY 2015, 2017, and 2023. These too are lagging indicators. In fact, the $511 million court ordered restitution in the Washakie case in 2023 was agreed to in a July 2019 plea agreement.8 What is interesting, though, is the relatively flat level of court ordered environmental projects (or “community service payments”) back to 2016. These are not unlike SEPs, but in the context of voluntary payments made to third parties as a condition in a criminal plea agreement. For similar reasons as with SEPs, the Justice Department prohibited these “community service payments” to third parties.9 Also as with SEPs, the prohibition on community service payments was withdrawn by the Biden Administration in February 2021, and the future of these payments directed to third parties is uncertain. It is somewhat surprising that community service payments have not risen much beyond their FY 2021 low point.
EPA’s National Enforcement and Compliance Priorities
Every four years, EPA selects priorities that guide its enforcement and compliance initiatives. It is worth taking a look at how those have evolved in recent years to better understand how the agency directs its enforcement and compliance efforts.
EPA’s priorities for FY 2016 through 2019 were:10
EPA’s FY 2024 enforcement and compliance results generally indicate an increase and a return to pre-COVID levels. As discussed, many of these statistics are of limited value in assessing the agency’s current efforts, but they are helpful to understand trends as long as they are given the proper context. It will be interesting to see how the agency moves forward in coming years, and that will largely depend on its funding levels and chosen priorities.
7 United States District Court for the District of Utah Case No. 2:18-cr-00365.
