Judicial review of state agency regulatory orders in California has long been seen as an exercise in futility as state courts typically give significant deference to agency determinations. However, two recent decisions by California Superior Courts have bucked that trend and may provide renewed hope that success at the trial court level is not out of reach. Continue Reading Scoring Gold at the Superior Court: California Water Boards’ Regulatory Authority Successfully Challenged
The US Environmental Protection Agency (EPA) released its annual enforcement and compliance results for the most recent fiscal year (FY) on February 8, 2018. The results, which cover the period from October 1, 2016, to September 30, 2017, are the Trump administration’s first annual statistical report on federal environmental enforcement. The results provide insight into the administration’s focus and priorities for enforcement. Continue Reading EPA Announces Fiscal Year 2017 Environmental Enforcement Statistics
A year ago, the regulated community and its environmental lawyers recognized that the Trump administration would bring a new approach to the enforcement of federal environmental laws, but the nature of the specific changes remained nebulous. While it is still early to speculate on the long-term impacts to enforcement that may be implemented by the administration, events over the prior year have brought the new administration’s enforcement philosophy and priorities into greater focus. This post reviews some of the key personnel, policy, and budget announcements made during President Trump’s first year in office that will shape the future of federal environmental enforcement by the Environmental Protection Agency in the coming years.
On Thursday, the Senate confirmed Susan Parker Bodine as the Assistant Administrator of the Environmental Protection Agency’s Office of Enforcement and Compliance Assurance (“OECA”). OECA, the chief enforcement arm of EPA, coordinates the agency’s enforcement of numerous federal environmental laws within its authority.
This is the second leadership role at EPA for Bodine, who brings significant experience in environmental law to the position. She formerly served as Assistant Administrator for the agency’s Office of Solid Waste and Emergency Response—now called the Office of Land and Emergency Management—under President George W. Bush. Before returning to the EPA, Bodine served as Chief Counsel for the Senate Environment and Public Works Committee, from 2015 until this August. She also served as Counsel to the House Transportation and Infrastructure Committee, and was engaged in private legal practice.
The regulated community in California may soon have additional reasons to implement supplemental environmental projects (SEPs) when settling an administrative environmental enforcement action. Under a 2009 State Water Resources Control Board (Water Board) policy, settling parties may voluntarily undertake an environmentally beneficial project in return for an offset of a portion of any civil penalty, provided that the project meets certain criteria. The Water Board has now released sweeping proposed amendments to its Policy on Supplemental Environmental Projects (draft SEP Policy) that will incentivize more projects. Most notably, the draft SEP Policy:
Will consider projects that address climate change, such as greenhouse gas emissions reductions or those that build resilience to climate change impacts on ecosystems or infrastructure.
Will allow—subject to approval—greater than 50% of any monetary assessment in administrative enforcement cases to be allocated towards SEPs that are located in or benefit disadvantaged or environmental justice communities, or communities suffering from a financial hardship, or that further the Water Board’s priority of ensuring a human right to water. Under the original policy adopted in 2009, the maximum civil penalty reduction available via performance of a SEP is capped at 50%.
Will allow up to 10% of oversight costs to be included as part of the total SEP amount for the same reasons above. Otherwise, oversight costs are paid in addition to the total SEP amount.
Establishes a new category of SEPs called “Other Projects” to allow educational outreach and other “non-traditional” water quality or drinking water-related projects to be considered for approval.
Expands the applicability of SEPs to enforcement actions prosecuted by the Division of Drinking Water and its Districts and the Division of Water Rights.
Over the last decade, regulators have accelerated their focus on vapor intrusion risk at hazardous cleanup sites. This has led to new cleanup standards, policies and guidance to evaluate potential risks, environmental investigation requirements for brownfield redevelopments, and the reopening of previously closed remedial actions. Recently, attention has turned from chronic to acute vapor intrusion risk. Although protection of human health is paramount, this recent focus has been plagued with concerns about the validity of the underlying science and a lack of comprehensive guidance from regulators on how to respond. This article explores the evolution of vapor intrusion regulation, particularly developments addressing acute risk, as well as trends in vapor intrusion- related litigation.
A new policy directive issued earlier this week by the Department of Justice (Justice) has raised concern among regulated industry that the availability of Supplemental Environmental Projects (SEPs) in civil settlements could be severely reduced, or even largely eliminated. If the directive is applied to restrict the availability of SEPs, it would remove a useful, and at times powerful, tool routinely used by the regulated community to negotiate acceptable settlement agreements in civil enforcement actions. It could also eliminate tens of millions of dollars of annual funding of such projects—which typically benefit local communities or address niche environmental issues—currently provided through the use of SEPs in consent decrees. Because applicable policies preclude Justice from requiring parties to include SEPs in settlements, it is difficult to identify any upside in any potential narrowing or elimination of SEPs as an optional tool to assist in the resolution of civil environmental enforcement actions.
Since President Trump’s election, his Administration has emphasized cooperative federalism and has opened the door for more state responsibility. California is walking through that door, and has positioned itself, according to its elected officials, at the vanguard of the so-called “resistance” to the Administration and its policies, real and perceived. This is particularly clear on environmental, energy, and natural resource matters. Last week illustrates the growing divide between California and the federal government in these areas.
The White House Office of Management and Budget released on Tuesday the Trump administration’s first full budget proposal for the 2018 fiscal year (starting in October 2017). The comprehensive proposal provides detail about the administration’s policy priorities. If the budget is adopted by Congress as written, the Environmental Protection Agency would face its greatest budget cuts ever. These cuts would broadly impact federal environmental efforts, including the enforcement of federal environmental laws.
President Trump recently nominated Susan Parker Bodine to lead the Environmental Protection Agency’s Office of Enforcement and Compliance Assurance (“OECA”). OECA is responsible for coordinating the enforcement of federal environmental laws under EPA’s authority. OECA acts through a combination of compliance assistance, administrative enforcement and, in partnership with the US Department of Justice, civil and criminal enforcement.