The Senate narrowly confirmed Andrew Wheeler as Administrator of the Environmental Protection Agency on Thursday, February 28, 2019, by a vote of 52-47. No Democrats supported the nomination and one Republican also opposed. (The Hill). Interestingly, Senator Joe Manchin (D-W.Va.) voted against Wheeler after having been the only Democrat to support his earlier nomination as Deputy Administrator. Manchin explained that Wheeler has not demonstrated a desire or will to make progress in standards for drinking water and has worked to roll back certain clean air standards, both of which Manchin believes will have adverse effects on citizens in his State. Similarly, Susan Collins (R-Maine) also cited Wheeler’s support for rollback in air standards as a reason for her opposition. (Collins Explains Vote).
Wheeler’s confirmation comes amid a Congressional inquiry into recent reports of a significant reduction in EPA enforcement efforts. Last month, we posted information about an early February report indicating that EPA’s enforcement activities were down in the last fiscal year by approximately 85%. (Blog, February 4). In testimony before Congress this week, Susan Bodine, EPA Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), explained that, while both the amount of the civil penalties and the number of site inspections it conducted in the 2018 fiscal year were the lowest in at least 10 years for both measures, results are being achieved through a focus on compliance as opposed to enforcement. (New York Times). Information also came out during the hearing that the OECA has lost almost 18% of its staff over the last 2 years. Notwithstanding these enforcement figures, as we pointed out in our blog, primary enforcement is handled in most places by State rather than EPA authorities. This is in accordance with provisions for federal/State partnerships established in the primary federal environmental statutes. Generally speaking, so long as funds continue to be provided by EPA for this State enforcement activity, the regulated community should expect these primary enforcement activities to continue at about the same levels as in the past.
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