Environmental enforcement is alive and well in the Trump administration. In fact, some of the changes the Environmental Protection Agency is making could strengthen oversight of polluters, a former top agency enforcement official says.
Chief among those changes is the EPA’s updated approach to working with state environmental cops bringing cases against polluters, said Patrick Traylor, who until recently, was the EPA’s No. 2 enforcement official.
Traylor also said he and EPA enforcement chief Susan Bodine emphasized compliance as the underlying goal of the enforcement program. It was a step that led to increased use of more informal tools such as self-disclosure and audits to help bring companies into compliance with pollution protections. That tactic has led environmental groups to slam the Trump administration for a collapse in enforcement, claims they say are bolstered by declining numbers.
But Traylor, in a sit-down interview with the Washington Examiner, said changes in tactics don’t at all mean the EPA enforcement office is off the job.
Those claiming the EPA is slacking on enforcement because officials are focusing on compliance “don’t understand how EPA enforcement works,” said Traylor, just two months out of the agency. “It’s not an either-or.” He added that just because the EPA has changed the name of its National Enforcement Initiatives to National Compliance Initiatives doesn’t mean “that EPA is just going to go shake hands with industry and let them off the hook and play footsies with them.”
Traylor, a Houston native, was deputy assistant administrator in the EPA’s Office of Enforcement and Compliance Assurance. He was the first Trump appointee in the EPA’s enforcement shop, arriving in June 2017 when the only Senate-confirmed official was former Administrator Scott Pruitt.
“It was very exciting when I got there because it was kind of the whole enchilada,” he said. “Folks were looking to me to begin to manage the enforcement program.”
Traylor left the EPA in October to return to private practice, joining Vinson and Elkins in its Washington office. Before his stint at the EPA, he worked for Hogan Lovells, where he represented a variety of energy companies, including utilities such as Southern California Edison, natural gas exporters such as Venture Global LNG, and refiners such as Koch subsidiary Flint Hill Resources.
He graduated in 1991 from Texas A&M University, where he met his wife. Traylor earned his law degree from South Texas College of Law in 1994 and his master of laws in environmental law from George Washington University in 1996.
Overall, Traylor is adamant that the Trump administration isn’t letting up on enforcement.
Environmental groups say the numbers tell a different story.
Fiscal year 2019 saw the lowest level of pollution crimes prosecution in 25 years, according to data compiled by Syracuse University’s Transactional Records Access Clearinghouse. The data found just 75 criminal prosecutions initiated by the EPA that year.
“By any recognized metric, the odds of corporate polluters facing criminal consequences have reached a modern low,” Tim Whitehouse, a former EPA enforcement attorney and executive director of the group Public Employees for Environmental Responsibility, said in a statement last month. “Every year under Trump has seen a further enforcement decline.”
Traylor, though, told the Washington Examiner that while enforcement numbers are essential, they don’t tell the whole story, echoing recent comments from Bodine and top Justice Department environmental lawyer Jeffrey Bossert Clark.
As an example, Traylor pointed to the fact that critics’ claims that enforcement was declining under the Trump administration started with fiscal year 2017 numbers, when the Trump administration had only been on the job eight months. Traylor said he’d only been at the agency three months when those numbers came out.
There was an outcry that the numbers had dropped. Still, Traylor said much of what the Trump administration did at that point was “more of a function of what was already in the pipeline” from the Obama administration and career employees.
“Getting things restarted in a new administration to make sure things continued to move, that does take a little bit of time, but it wasn’t as though the brakes had been thrown on by the administration as a policy objective,” Traylor said.
Traylor also said there are often explanations buried in the numbers that tell a complete story. For example, he said the value of injunctive relief the EPA has obtained from polluters has declined in recent years, but that’s in large part because the agency and states successfully made a dent in holding cities accountable for leaking sewage into water bodies.
“Those problems are very expensive to solve, so the value of injunctive remedies in those resolutions were very high,” Traylor said, adding the EPA handled the majority of those cases.
Nonetheless, environmental groups such as PEER say that EPA enforcement numbers are declining predominantly because EPA enforcement staff is also getting depleted.
The group said its data shows EPA has 145 agents in its Criminal Investigation Division, compared to 175 agents in 2012.
“As evidenced by the trend under Trump, unless more resources are devoted to enforcement, pollution prosecutions will diminish further,” said Whitehouse.
Even EPA enforcement officials have acknowledged that the decline in staff has an impact on how much work they’re able to do.
“We are a much smaller agency. There’s no doubt about that,” said Rosemarie Kelley, the EPA’s civil enforcement director, at a conference hosted by the American Bar Association last month. In the last few years, the EPA has shrunk from 18,000 employees to fewer than 14,000. More than 1,000 employees have left the EPA during the Trump administration alone.
“There’s no way to say that doesn’t impact what we do,” Kelley added.
Traylor, though, said there are parts of the enforcement program the Trump administration is reinvigorating. He said the criminal enforcement program had been in decline for the last eight years, evidenced by the number of special agents and cases.
“We worked to staff that office back up,” Traylor said, suggesting the Trump administration had beefed the program up by around 40 agents.
Traylor also said the Trump administration reenergized the EPA’s cooperation with state enforcement authorities, which handle a bulk of the day-to-day enforcement under air, water, chemical, and other pollution protections. He spearheaded a workgroup with states and officials from the EPA’s 10 regions that talked through how to update the agency’s policy for dealing with states, allowing the agency to defer more to states if a state agency is handling an enforcement case.
Critics suggested that policy, codified in a memo by Traylor and Bodine, indicates the EPA is abdicating its enforcement responsibilities to the states, which don’t have as many resources as the federal agency.
Traylor, though, said all the state officials he worked with generally appeared happy with how the policy discussions shaped up. It was the first time the EPA had updated its enforcement relationship with the states since the Reagan administration, he said.
He dismissed the idea that the policy was a “gimme to the states or to industries that are close to state regulators.” He also suggested that the policy would evolve as states and the EPA enforcement lawyers worked out tweaks.
“The proof will be in the pudding,” Traylor said. “I think you’ll get better enforcement, you’ll get more widespread enforcement, and you’ll get less of the friction that comes from poor communication and poor planning.”
