What happened to all the big changes at Trump’s EPA?

by Snell & Wilmer

Following the presidential election, much was made of the enormous changes that the new president intended to make at the EPA, and his choice for Director, Scott Pruitt, resulted in heated opposition and a frenzied uproar from those who foresaw the dismantling of environmental protections.

The funny thing is, aside from much recent ado regarding Mr. Pruitt’s travel proclivities, not all that much has really changed.  While the withdrawal of the highly contentious jurisdictional rule under the Clean Water Act was obviously very significant (although this administration seems to be in no hurry to devise a replacement) and the repeal of the Clean Power Plan has resulted in massive regulatory relief (and engendered large quantities of litigation at State and local levels), these two very significant actions are really high level political positions fulfilling the President’s campaign promises.

But in terms of the actual day-to-day functioning of the EPA, it does not appear that very much has changed at all. Operationally, the biggest change announced by Mr. Pruitt was a focus on making CERCLA (the so-called Superfund program) the priority of the EPA. His goal was reduce the National Priorities List and move along cases that had been languishing for years, by becoming personally involved in any remedies projected to exceed $50,000,000, and by an expanded use of Unilateral Orders to force cleanups. But aside from a ballyhooed remedial decision at a site in Missouri, there has been no indication of Mr. Pruitt’s involvement in speeding up remedial selections. Additionally, there has been no reduction in sites listed on the NPL, and in fact, the EPA has been adding more sites.

While certain people have criticized the EPA for being less active in enforcement, the statistics they seek to use to demonstrate that are strained to say the least, comparing the amount of penalties collected under Mr. Trump’s first year with that of Mr. Obama’s first year. In fact, it appears that enforcement appears to be robust, both in terms of the number of cases being pursued and the relief sought.

So what happened to all the big changes? It appears to this writer, that there are several reasons why the EPA has not changed much. First, it is difficult to make sudden drastic changes within any large bureaucracy. It is entirely possible that big changes are being sought at a high level, but translating that down to thousands of long-term employees cannot possibly happen as quickly as may have been dreamt. Second, this administration clearly over-estimated the appeal of drastic changes to the EPA. While Mr. Trump has submitted budgets calling for the slashing of many programs, the Congress has simply refused, and authorized budgets with only minor reductions. In turn, this is likely to have occurred because those elected representatives know that the American public highly values environmental protections. The EPA has the highest public approval ratings of any government agency – by far – and voting to dismantle protections does not play well with most voters. Third, the administration itself may be having second thoughts. Most of corporate America does not support disemboweling the EPA, it only wants it to run more fairly and more quickly. The wholesale slashing of  its budget and employees is unlikely to make anything faster or more efficient. Changes need to be more targeted. Trump may recognize this, and while he plays to his core supporters by announcing drastic budget cuts, behind the scenes he is unlikely to be pushing very strongly for them. Fourth, making wholesale changes to the way EPA operates its programs will certainly engender even more litigation, as NGOs, States and Cities are rising up in response to the actions taken to date and will no doubt challenge future actions they believe reduce protections to human health or the environment. Allowing judicial decisions to steer the direction of environmental policies is unlikely to be something this administration feels good about.

So while Trump’s election may have been extremely helpful to the fundraising efforts of NGOs eager to point to an impending environmental disaster, the reality appears to be that the EPA is chugging along without much change in its direction or approach. Administrations come and go, but this governmental bureaucracy seems fairly impervious to changes to its approach to its core mission.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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