The Trump Administration is making what might appear to be subtle changes in federal enforcement policies that have the potential to significantly shift environmental enforcement as prescribed by the prior administration. Three recent changes are notable.

The Obama Administration had been criticized for aggressive use of criminal charges in environmental cases, reflected in the fact that in FY2015, the most frequent criminal charges against entities (i.e., not individuals) were environmental crimes. But last fall, Patrick Traylor, Deputy Assistant Administrator for the Environmental Protection Agency’s (EPA’s) Office of Enforcement and Compliance Assurance (OECA), cited the 1994 “Devaney Memorandum” as again guiding the EPA’s selection of cases for criminal enforcement of environmental violations. Pursuant to the policy outlined in the Devaney Memorandum, criminal case selection will be guided by (1) the presence of actual harm or the threat of significant harm to human health or the environment, and (2) culpable conduct, including a history of repeated violations, deliberate misconduct, concealment or falsification of records, tampering with equipment, and operating without a permit. This resurrection of the Devaney Memorandum (adopted during the Clinton Administration) signals that criminal enforcement of environmental laws likely will target only “the most significant and egregious violators.”

The second development also comes from the OECA. Just last month, the EPA also announced principles and suggested practices to address variances in states’ enforcement performance and differing levels of oversight by the EPA Regions. The announcement is intended to guide the EPA’s collaboration with Authorized States in preparation for and during environmental inspections and enforcements.

Unlike the EPA’s strategy under the prior administration (National Strategy For Improving Oversight of State Enforcement Performance), which emphasized collaboration at the staff and mid-tier level and contained a clear imperative for the EPA to ensure that the states pursued “vigorous enforcement,” the current guidance emphasizes a spirit of “cooperative federalism” under which the EPA lays out specific actions for joint work planning and purports to defer to Authorized States.

While the EPA has stated that it “will generally defer to Authorized States as the primary day-to-day implementer” of delegated programs for inspections and enforcement, the guidance lists nine instances in which the EPA may heavily manage or directly control compliance assessments and enforcements. Most notably, the EPA has provided a list of situations where it considers direct the EPA involvement appropriate. The current list is fairly broad, and the EPA has stated that the list is not exhaustive. Thus, the EPA could deem direct involvement appropriate in a greater number of situations than those currently listed.

The joint working sessions appear to allow a greater amount of high-level political influence when deciding which compliance matters to pursue. Despite the EPA’s assertion that it will defer to Authorized States, the current list of scenarios where the EPA considers involvement appropriate potentially opens the door for direct the EPA involvement in most compliance matters. While the Trump Administration’s philosophy is to defer more to states than the prior administration, it is not yet clear how the Regions will balance the apparent competing principles outlined in this guidance.

Finally, the U.S. Department of Justice (DOJ) issued recent memoranda eliminating the use of guidance documents in a manner that would create binding rights, obligations, or standards for people or entities outside of the Executive Branch. In the most recent memorandum, the DOJ barred use of guidance documents from other agencies, including the EPA, which would create binding standards in enforcement actions. This announcement curtails enforcement actions where the alleged offense was not based on a statutory infraction, but instead on noncompliance with a guidance document, and thus limits the use of guidance documents. While it is well-accepted jurisprudence that guidance that has not been the subject of a rulemaking cannot be enforced, DOJ leaders are sending a clear signal that use of guidance as the criterion for a violation in a civil or administrative action will not be allowed.