This is the 42nd day of the US government shutdown, but the end is finally in sight. The Senate voted Sunday night to continue funding the federal government through Jan. 30. The vote, in which eight Democrats joined the Republican supermajority in the Senate, is expected to be followed by approval from the House Republican majority and President Donald Trump. With many Democratic officials decrying the capitulation of their Senate colleagues, a renewed shutdown is likely when funding expires again next year.
One of the many negative consequences of the current shutdown is that the country's top environmental policeman has been off duty for several weeks now. While it is too early to know the exact consequences of this dysfunction, similar situations in the recent past show that polluters often increase their emissions during periods of loose control. As such periods become a regular feature of the US political process, the cumulative environmental consequences can be significant.
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The Environmental Protection Agency's Enforcement Division is responsible for enforcing the nation's cornerstone environmental laws, including the Clean Air Act, Clean Water Act and hazardous waste laws. Based in Washington, D.C., and 10 regional offices across the country, these employees oversee some of the nation's biggest polluters. They conduct surprise inspections at oil refineries, power plants and factories. They review data and reports to verify compliance. And when they find violations, they issue fines and work with the Department of Justice to prosecute violators until they reform.
But since the shutdown began Oct. 1, the Environmental Protection Agency has gradually laid off most of its civilian law enforcement employees. Only a handful of employees were initially sent home at the start of the month, leaving the agency to leave most workers to use unspent funds from previous budget years. However, when funding ran out, the agency laid off most of its staff. WITH Only essential personnel are retained to protect the public from imminent threats During the holidays, the vast majority of law enforcement officers were ordered to stay home for the rest of the month.
“The agency's inspection and enforcement division is largely shut down,” said Justin Chen, president of AFGE Council 238, the union that represents agency employees. “The vast majority of inspectors and law enforcement officers, as well as the attorneys who work with them to pursue settlements and other lawsuits against regulated entities, have now been laid off.” Chen himself was sent on leave on October 20.
Previous pauses in enforcement indicate that the lack of federal oversight may embolden polluters. Researchers at Pennsylvania State University examined emissions data from 204 coal-fired power plants across the country during the last major federal shutdown in late 2018. They discovered that Coal-fired power plants emit 15 to 20 percent more particulate matter for 35 days when the government was shut down and EPA enforcement officers were laid off. When the shutdown ended and inspectors returned to their jobs, emissions returned to pre-shutdown levels. The results were robust, although the researchers took into account changes in weather, the use of more polluting grades of coal and other factors. This suggests that factories were less likely to implement pollution controls when they knew they were unlikely to get caught.
“The only option is to temporarily replace the fouling mitigation device at the end of the pipe,” said Ruohao Zhang, a professor at the University of Pennsylvania and lead author of the study, which was published last month. Zhang and his colleagues relied on data provided by coal plant operators to the Environmental Protection Agency, as well as satellite data from NASA. They examined particulate matter levels in a 1.8-mile radius around coal-fired power plants.
While Zhang was unable to comment on the legality of such actions by operators, he said it indicated a higher likelihood of violation. According to him, the current shutdown creates the same incentives as last time. “Now, without EPA monitoring, this has increased the likelihood [of being cited for violating environmental laws] it’s gone,” he said.
Researchers found a similar trend in the spring and summer of 2020 during closure due to COVID-19. At the time, the Environmental Protection Agency announced that businesses that failed to track and report their emissions would be exempt from compliance. The companies took advantage of the EPA's offer. Data provided by the polluting industries themselves showed that companies conducted 40 percent fewer smokestack emissions tests in March and April 2020 compared to the same period in 2019. American University researchers also found that counties with six or more EPA-reported polluting plants saw a 14 percent increase in particulate pollution after the EPA announced its enforcement policies in 2020.
The blackouts ultimately send a message that no one is watching, said Jen Duggan, executive director of the Environmental Integrity Project, a nonprofit founded by former Environmental Protection Agency law enforcement officials.
“This means communities could be more susceptible to pollution,” she said, “if companies actually break the laws and no one from the EPA can respond.”
Each EPA regional office has approximately 18 employees responsible for each of the three main enforcement areas: air, water, hazardous waste and toxic substances. Chen estimates that about 600 EPA employees were responsible for enforcing the law at the regional level. In part, these officers oversee many of the environmental enforcement activities delegated to individual states. In addition, the EPA also has assigned personnel to enforce environmental laws in consultation with tribesWith many federally recognized tribes they were not given powers to implement environmental legislation.
A near-total halt in inspection and case review activities will likely have significant implications for EPA's enforcement efforts. First, any administrative agreement that an agency may enter into with a polluter is contingent on the use of evidence that is no more than a year old, unless the agency obtains a waiver from the Department of Justice. As a result, employees typically start work at the beginning of the fiscal year, which begins Oct. 1, Chen said. But given that they have been placed on leave for the past few weeks, “it is very difficult from a timing standpoint to make any administrative decisions to get a quick decision on certain issues,” Chen said.
The furloughs are the latest setback to hit EPA employees. The Trump administration has carried out several rounds of layoffs and offered buyouts to workers this year. While it is unclear exactly how many EPA enforcement officers have been fired or resigned, the EPA is in the process of reducing its workforce by nearly 25 percent. The Department of Justice (DOJ) also lost at least 4,500 employees due to layoffs and buyouts. As a result, the Department of Justice's environmental enforcement division has been cut by about half.
Once the Environmental Protection Agency identifies environmental violations, the Department of Justice files cases against polluters and enters into legal settlements with them. According to the analysis of the Ecological Integrity Project first reported by the Washington PostIn the first eight months of the Trump administration, the Justice Department brought just nine major civil cases against polluters. That's a significant decline from Trump's first term, when the Justice Department brought 53 cases during the same period.
An EPA spokeswoman told the Post that the number of civil cases does not reflect a relaxation in enforcement by the Trump administration, citing other metrics in which she said Trump has outperformed the Biden administration, but Duggan, executive director of the Environmental Integrity Project, disagreed.
“This is a significant slowdown in the enforcement process,” she said. “If you're cutting staff doing that work, you know there's going to be an impact.”
