New enforcement polices announced by the EPA and the DOJ presage possible changes in the way environmental enforcement will be conducted at the federal level. Consistent with the overall themes of the Trump administration of cooperative federalism and a focus on compliance, new EPA policies state that the agency will defer to the states as the primary enforcing entities, and will encourage the use of more informal enforcement approaches to bring about compliance. In addition to these EPA-specific polices, the DOJ announced a policy limiting the use of agency guidance in affirmative civil enforcement cases. The new DOJ policy, while not limited to environmental cases, is expected to be especially relevant to enforcement in the environment and natural resources area.

EPA Enforcement Policies

The document from the EPA that sets out the deference to state enforcement is in the form of guidance from Susan Parker Bodine, the EPA Assistant Administrator of the Office of Enforcement and Compliance Assurance (“OECA”) to the EPA Regional Administrators, entitled Interim OECA Guidance on Enhancing Region-State Planning and Communication on Compliance Assurance Work in Authorized States (U.S. EPA January 22, 2018) (“OECA Guidance”). As stated in the OECA Guidance, the “EPA will generally defer to authorized States as the primary day-to-day implementer of their authorized/delegated programs, except in specific situations.” OECA Guidance at 2. The specific situations that could warrant EPA involvement include the following:

a) Program audits indicate a need for the EPA to fill a gap until the State program deficiency is addressed.

b) Emergency situations or situations where there is significant risk to public health and the environment.

c) Significant noncompliance that the State has not timely or appropriately addressed.

d) Actions that require specialized EPA equipment (e.g., infrared camera) and/or expertise.

e) Federal and State owned/operated facilities.

f) Actions to consistently address widespread noncompliance problems in a sector/program (such as the National Enforcement Initiatives), to address companies with facilities in multiple States, or where there are cross-boundary impacts affecting other States, tribes, or nations.

g) Program oversight inspections.

h) Responses to State requests for assistance in a specific situation, or broader work-sharing arrangements in which the EPA takes the lead in particular sub-programs, sectors, or geographic areas.

i) Serious violations that need to be investigated and addressed by the EPA's criminal enforcement program.

OECA Guidance at 3. These criteria do not appear to signal major policy shifts in the types of cases that could result in a federal role in enforcement, but there are still significant questions regarding the resources that may be available to the EPA to pursue enforcement cases.

In addition to the OECA Policy, the EPA has announced a pilot project to look at more informal enforcement actions. In a January 30, 2018 public presentation, as reported in the trade press, Susan Bodine indicated that the EPA is planning to implement pilot projects to allow EPA inspectors to immediately address compliance issues with regulated entities that arise during EPA site visits, as opposed to the more formal enforcement process of notices of violation and administrative or civil enforcement. (Presumably non-compliance that rises to the level of a potential criminal violation would not be part of this program.) As the EPA has indicated, this approach will initially be implemented through pilot programs; the specifics of this approach are still being studied by the EPA. Assistant Administrator Bodine did concede in her reported remarks that informal enforcement would likely not generate the kind of formal activities, e.g., administrative penalty orders or cases referred to the DOJ, that are usually used as benchmarks for the level of enforcement activity, raising the possibility of criticism of EPA’s enforcement efforts. Despite this potential drawback in public perception, the EPA believes that the undertaking could be a way of securing quick compliance without the need for commitment of a significant amount of resources.

DOJ Policy on Agency Guidance

Earlier this year, the DOJ issued a policy to the heads of all the civil litigating components of the DOJ and all the United States Attorneys regarding the use of agency guidance documents in affirmative civil enforcement cases brought by the DOJ on behalf of its client agencies. Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases (Office of the Associate Attorney General, January 25, 2018) (“DOJ Policy”). While the policy applies to all affirmative civil enforcement undertaken by the DOJ, not just environmental cases, the policy has clear implications for the conduct of civil judicial enforcement brought on behalf of the EPA and other federal environmental agencies by the DOJ. Very succinctly, the policy states the DOJ “may not use its enforcement authority to effectively convert agency guidance documents into binding rules.” DOJ Policy at 2. In addition, the DOJ “may not use noncompliance with guidance documents as a basis for proving violations of applicable laws.” Id.

While the reach of the DOJ Policy on environmental enforcement is still unfolding, it would appear that Clean Air Act enforcement could be significantly affected. For example, in the past the enforcement of New Source Review requirements regarding what constitutes a “good air pollution control practice” has relied heavily on EPA guidance. The use of guidance documents which are routinely incorporated into consent decrees, particularly decrees under the Superfund law, may also be limited, although it is not clear that the policy would restrict parties from agreeing to be bound by an EPA policy in a voluntary settlement. While the scope of the limitation on guidance is still unfolding, parties to government enforcement should be cognizant of this DOJ Policy and resist any attempts to create obligations not set forth in statutes or regulations. It should be noted, however, that the DOJ Policy also contains the standard disclaimer found on all government policies, i.e., it is not intended to create rights enforceable by any party to a government enforcement action. Therefore, parties who believe the DOJ Policy has not been followed will likely need to look to DOJ management to police the policy, rather than a legal defense in litigation.