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Dec 13 2016

Enforcement Trends with a Trump/Pruitt EPA

December 13, 2016 (Houston)

James SmithBy James Smith – “Environmental Alert” (Schirrmeister, Diaz-Arrastia, Brem LLP)

This is the second in a series of Alerts that will discuss the expected impacts of a Trump Administration.  This Alert focuses on federal enforcement.

Scott Pruitt Named as New EPA Administrator

News reports say that Oklahoma Attorney General Scott Pruitt will be nominated as the new EPA Administrator.

Federal Enforcement Trends

The latter years of the Obama administration saw a decline in the number of enforcement actions that EPA filed or referred to the Department of Justice.  The Obama EPA has acknowledged this decline, and has attributed it to cuts in EPA’s budget.

Despite a reduction in enforcement actions, the Obama EPA has generally stated that its goals and expectations are for no reduction in the amount of penalties recovered via enforcement.  (Thus, in order to get the same amount of penalties from fewer actions, the Obama EPA has planned to extract relatively more in penalties per case.)

With a Trump/Pruitt EPA, I see further cuts to EPA’s budget impacting enforcement.   I also expect to see less of an emphasis on enforcement statistics.  I doubt that a Trump/Pruitt EPA will be bothered if the number of enforcement actions and the level of recovered penalties go down.  In summary, I expect a significantly less active federal environmental enforcement program from a Trump/Pruitt EPA.

Trump Likes Stories, Not Statistics

While I predict that a Trump/Pruitt EPA will care less about enforcement statistics, it may care more about enforcement stories.  That is, I expect to see annual enforcement summaries from a Trump/Pruitt EPA to focus more on cases with results that reflect the Trump administration’s values, and focus less on the number of actions filed, the amounts recovered, and other statistics.  My advice, make sure your company does not become one of the “examples” that the Trump administration will want to use as a story.

Also, as I shall discuss in more detail in a future Alert, expect that many state and local agencies will increase their enforcement presence, as a reaction to a Trump/Pruitt EPA.

 

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