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Inspections, Investigations, Prosecutions Down by Half Since 2002; Biden Administration Needs to Reverse Trend

Download our report for a full analysis and our spreadsheet for a year-by-year review of the data.

Washington, D.C. – Recently released Environmental Protection Agency enforcement data show that between the 2018 and 2021 fiscal years, the number of inspections, criminal investigations, and civil and criminal prosecutions all declined by around half compared to the average yearly totals between 2002 and 2017. The amounts paid by polluters also hit new lows. Adjusted for inflation and comparing average annual results, civil penalties in 2018-2021 were at least 28 percent lower than during 2002-2017, while criminal fines declined 49 percent.

There are some encouraging signs among the results reported for the latest fiscal year, which ended on September 30, 2021. Civil penalties ($160 million) and injunctive relief ($8.47 billion) were closer to the norm for that year when adjusted for inflation and unusually large outlier cases (like the Volkswagen emissions settlement) are excluded.

But the 114 cases referred by EPA to the Justice Department for civil prosecutions in the year ending on September 30 remained less than half the annual average between 2002-2017 while the 1,587 civil cases that were successfully concluded fell to the lowest level during the 20-year period analyzed here. The number of criminal cases opened (123) and polluters charged (105) in the 2021 federal fiscal year were at their second lowest levels in the past two decades, while fines and years of incarceration were at their lowest.

“From a long-term perspective based on twenty years of data, almost every measure of performance – inspections, criminal investigations, civil cases referred to or concluded by the Justice Department, criminal defendants charged, civil penalties or criminal fines paid, cleanup costs recovered from polluters – points to a serious decline in EPA’s capacity to enforce our environmental laws. That is a wake-up call the Biden Administration needs to answer before it is too late,” said Eric Schaeffer, Executive Director of the Environmental Integrity Project and former Director of Civil Enforcement at EPA. “While the last four years saw new lows, EPA enforcement’s decline really began in the second term of the Obama Administration when the budget ax fell hard on EPA.”

While it is not unusual for results to vary from one year to the next, the long-term decline in almost every measure of enforcement outputs is troubling. It should not be surprising, however, given that EPA has lost nearly 700 enforcement staff over the past decade, about 22 percent of its workforce. The Biden Administration has requested modest increase in staff levels for fiscal year 2022, but a Congress limping from one continuing resolution to the next may not approve it. David Uhlmann, nominated to lead EPA’s enforcement program on June 22, 2021, is still awaiting confirmation from a gridlocked Senate nearly eight months later.

On his first day in office, President Biden signed an Executive Order pledging to, “hold polluters accountable, including those who disproportionately harm communities of color and low-income communities.” To keep that promise, the Biden Administration will have to rebuild an EPA enforcement program battered by budget cuts, worn down by the polluter-friendly policies of the last Administration, and undermined by “states’ rights” advocates hostile to federal enforcement of federal environmental laws. Not surprisingly, these relentless attacks have taken a toll over the last two decades.

Civil and criminal cases involving six defendants – BP, Transocean, Duke Energy, Volkswagen, Toyota and Fiat Chrysler – netted a combined total of nearly $12.5 billion in penalties and $31.5 billion for cleanup costs (see Table 3 of the report). These enforcement actions represent some of the best work EPA and the Justice Department have done in the past decade. But given their outsized impact, we include a comparison of long-term trends that does not count the penalties and injunctive relief values from these six “outlier” cases.

As shown in the chart below, inflation-adjusted civil penalties, criminal fines and restitutions, and the amounts violators are expected to pay in injunctive relief all declined sharply between 2002-2017 and 2018-2021, with and without the outlier cases included.

View a breakdown of the findings below and download our report for a full analysis and our spreadsheet for a year-by-year review.

EPA Enforcement Performance Measures 2002-2017 vs. 2018-2021

Source: Annual enforcement reports published by the USEPA every fiscal year. All dollar amounts have been inflation adjusted to 2021 dollars.

• EPA Inspections: Down 46%, from an average 18,755 per year between 2002 and 2017 to 10,110 per year from 2018 through 2021. During the 2020 fiscal year, EPA inspections fell to their lowest level in more than two decades. But inspections had already fallen to their second and third lowest levels during the two years predating the pandemic, indicating that covid shutdowns had a relatively small impact on the downward trend;
• Criminal Investigations: Down 49%, from a yearly average of 326 in 2002-2017 to 167 in 2018-2021;
• Cases Referred for Civil Prosecution: Down 57%, from an average 237 per year between 2002 and 2017 to 102 per year from 2018-2021;
• Civil Cases Concluded: Down more than 50%, averaging 3,392 per year from 2002 through 2017 but only 1,674 between 2018-2021;
• Criminal Defendants Charged: Down 54%, from a yearly average of 240 in 2002-2017 to 110 from 2018-2021.
• Civil Penalties: Down 28%. Adjusted for inflation to reflect 2021 dollars and excluding outliers, civil penalties declined from an average $188 million per year between 2002-2017 to $135 million from 2018-2021. When the outliers from BP, Volkswagen, and other cases in are included, annual civil penalties slid 36%, from an average of $750 million in 2002-2017 to $450 million between 2018-2021.
• Injunctive Relief: Down 49%. Even after excluding the BP and Volkswagen results, polluters shelled out an inflation-adjusted $9.9 billion per year from 2002-2017 to install pollution controls or take other actions to get back into compliance, compared to an average $5 billion per year from 2018-2021. When BP and Volkswagen are included in totals, injunctive relief averaged $11.68 billion between 2002-2017, declining 57% to the $5 billion average for 2018-2021. 
• Superfund Cleanup: Down 34%. EPA recovered an average $1.76 billion per year (in 2021 dollars) from polluters to pay for the cleanup of abandoned hazardous waste dumps between 2002 and 2017, but only $1.165 billion per year from 2018-2021. The Trump Administration promised to make Superfund cleanups a priority: Whatever that meant, the parties who dumped hazardous waste at these contaminated dumpsites paid a lot less for cleanup over the last four years.
• Criminal Fines & Restitution: Down 48%, even after removing unusually large criminal penalties in the BP, Transocean, and Volkswagen cases. With these outliers removed, inflation-adjusted criminal penalties averaged $138 million per year from 2002-2017, compared to $70 million between 2018-2021. When payments for fines and restitution from BP, Transocean, and Volkswagen are included and inflation-adjusted, criminal penalties averaged more than $400 million per year in 2002-2017.
• Jail Time: Down by more than half, with prosecutions resulting in an average annual total of 120 years of incarceration between 2002-2017 versus 59 years from 2018-2021. Congress recognized that the threat of jail time for intentional misconduct, which can have dangerous consequences, would act as a powerful deterrent to corporate misbehavior. That deterrent effect has waned in recent years.

Download our complete analysis here.

The Environmental Integrity Project is a 20-year-old nonprofit, nonpartisan organization, based in Washington, D.C. and Austin, Texas, dedicated to enforcing environmental laws and strengthening policy to protect public health and the environment.