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By Matthew Thurlow<a title="" href="#_ftn1" name="_ftnref1">[1]</a>

The Biden administration recently proposed a fiscal year <a href="https://www.epa.gov/system/files/documents/2022-03/fy-2023-epa-bib.pdf/">(FY) 2023 budget</a> for the U.S. Environmental Protection Agency (EPA) that seeks to increase EPA’s budget by $2.644 billion and reverse a decades-long slide in federal environmental enforcement. The proposed budget of $11.881 billion is a significant increase from the FY 2022 budget of $9.217 billion. If enacted, the FY 2023 budget would be EPA’s largest since the $10.3 billion budget in <a href="https://www.epa.gov/planandbudget/budget">FY 2010</a>.

President Joe Biden’s FY 2023 EPA budget proposes sharp escalations in civil enforcement, environmental compliance monitoring and criminal enforcement. The 2023 Budget Overview provides that EPA’s budget for civil enforcement would increase from a baseline of $168 million to $213 million, compliance monitoring would increase from $102.5 million to $147.9 million, and criminal enforcement would increase from $51 million to $69.5 million. The budget also proposes the hiring of an additional 1,900 employees at EPA, including 291 new employees dedicated to criminal enforcement work. Finally, the budget includes an increase in funding for environmental justice programs from a baseline of $11.8 million to $294.9 million.

While it appears unlikely Congress will ultimately approve all of these budget increases (Biden’s <a href="https://www.epa.gov/sites/default/files/2021-05/documents/fy-2022-epa-bib.pdf">FY 2022 proposed budget</a> was reduced from $11.2 billion to $9.2 billion in the Annualized Continuing Resolution), the Biden administration is signaling that it intends to reverse a multidecade trend that has seen dramatically reduced federal environmental enforcement.

While the Biden administration has vowed to increase enforcement efforts under the nation’s federal environmental laws, <a href="https://www.epa.gov/enforcement/enforcement-annual-results-fiscal-year-2021">EPA’s FY 2021 enforcement results</a> reflect a continued steep decline in federal enforcement activity. The number of civil environmental enforcement cases brought and concluded in 2011 was over 3,000, but that declined to approximately 2,000 cases in 2017 and continued to decline to about 1,600 cases in 2021. Likewise, criminal enforcement has remained flat with slightly more than 100 criminal cases initiated in 2021, a sharp decline from the 350 criminal cases initiated in 2010 or even the 213 cases initiated in 2015. Perhaps the sharpest drop was in inspections, which are typically the precursor to more formal federal enforcement matters. The number of <a href="http://www.epa.gov/enforcement/enforcement-annual-results-fiscal-year-2021">EPA facility inspections in FY 2021</a> was only 3,200. As recently as FY 2010, the agency completed more than 20,000 inspections, a number that dropped to 15,000 in 2015 and 11,700 in 2017, before cratering during the pandemic. While inspections are likely to increase following the reopening of EPA’s offices, inspections are unlikely to return to anywhere near the levels seen less than a decade ago.

While the Biden administration has publicly vowed that it will increase federal environmental enforcement, especially in cases impacting environmental justice communities, the long-term trend line points to a continued decline in the number of administrative, civil and criminal actions brought by EPA.

Some of the decline can be attributed to increased deference by both Democratic and Republican administrations to state, tribal and local regulatory agencies.<a title="" href="#_ftn2" name="_ftnref2">[2]</a> Additional declines are likely the result of improvements in compliance technology, electronic reporting and remote monitoring that have increased voluntary compliance, reduced the need for inspections and eliminated some paperwork violations.<a title="" href="#_ftn3" name="_ftnref3">[3]</a>

Notwithstanding the reduced volume of federal environmental enforcement, <a href="http://www.epa.gov/enforcement/enforcement-annual-results-fiscal-year-2021">EPA continues to pursue major federal environmental enforcement actions</a> against companies it perceives as bad actors. For example, during the pandemic, EPA placed a renewed emphasis on compliance with the Federal Insecticide, Fungicide, and Rodenticide Act, targeting pesticide and pesticide device manufacturers that failed to comply with EPA regulations. EPA also continues to target defendants in large cases under the Clean Water Act and Clean Air Act, requiring significant investments in pollution controls, which totaled some $8.47 billion in 2021 (the highest cost since 2017). Likewise, EPA collected administrative and civil penalties in environmental cases of $1.06 billion in 2021 – again, the highest amount in penalties collected by the agency since 2017. While long-term trend lines point to a continued reduction in overall federal environmental enforcement, it appears likely the stakes will continue to rise in the cases that EPA authorities selectively choose to pursue for enforcement.
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<a title="" href="#_ftnref1" name="_ftn1">[1]</a> Matthew Thurlow is a partner at BakerHostetler and a former trial lawyer in the Environmental Enforcement Section at the U.S. Department of Justice.

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<div id="ftn2">

<a title="" href="#_ftnref2" name="_ftn2">[2]</a> National Program Manager (NPM) Fiscal Years 2018-2019, Office of Enforcement and Compliance Assurance, Sept. 29, 2017, <em>available </em>at <a href="https://www.epa.gov/sites/production/files/2017-10/documents/fy18-19-oeca-npm-guidance.pdf" target="_blank" rel="noopener">https://www.epa.gov/sites/production/files/2017-10/documents/fy18-19-oeca-npm-guidance.pdf</a>; Susan Parker Bodine, Interim OECA Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States, p. 2, Jan. 22, 2018 (“With respect to inspections and enforcement, the EPA will generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs, except in specific situations.”).

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<a title="" href="#_ftnref3" name="_ftn3">[3]</a> Next Generation Compliance Strategic Plan 2014-2017, U.S. EPA Office of Enforcement and Compliance Assurance, October 2014; Cynthia Giles, <em>Next Generation Compliance</em>, The Environmental Forum, p. 22 (September-October 2013).

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Biden Administration Seeks to Reverse Decades-Long Decline in Federal Environmental Enforcement in Proposed 2023 EPA Budget

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