At COP28, the U.S. proposed new rules for a major greenhouse gas. Can the Biden administration and EPA enforce it? - Reckon

At COP28, the U.S. proposed new rules for a major greenhouse gas. Can the Biden administration and EPA enforce it? - Reckon

With the world’s eyes fixed on events at the UN’s Climate Conference in the United Arab Emirates, the U.S.’s top environmental administrator, Michael Regan, took to the stage in Dubai to announce a new rule that targets the vast methane emissions from U.S.-based oil and gas facilities.

The rule, which began its journey under President Obama and collected over 1 million public comments, is part of a global agreement that would cut methane emissions from 2020 levels by 30% over the next seven years. Methane is one of the most potent greenhouse gases, about 80 times more potent than carbon dioxide (Co2) at trapping heat in the atmosphere. Although it’s less abundant than CO2, it’s a major driver of global warming and climate change.

The rule is one of over 100 actions the Biden administration has taken to cut methane emissions since he took office in Jan 2021 and part of a broader pro-climate agenda.

The Environmental Protection Agency’s administrator, Regan, told onlookers in Dubai that the new standards would help the U.S. “aggressively tackle” climate change while improving air quality in communities nationwide.

Read More: New EPA rule could eliminate up to 6,000 tons of cancer-causing air pollution annually

While the new rule is a significant victory for environmentalists and furthers Biden’s green legacy, questions have been raised about how effective the EPA has been in enforcing rules during the current administration and in the past.

“There’s no point in establishing environmental regulations if they aren’t going to be enforced,” Lisa Evans, senior counsel for Earth Justice, told Reckon during a June interview.

Low-income communities have yet to see the benefits of various rule changes, with major industrial construction proceeding in various communities throughout the country.

Dr. Stan Meiburg was acting deputy administrator for the EPA between 2014 to 2017, capping a 39-year career with the agency. During his tenure, Meibug led efforts to protect the nation’s air and water, clean up hazardous and toxic waste sites, build collaborative relationships with state and tribal environmental programs, and promote sound management in EPA.

He is currently the executive director of the Andrew Sabin Family Center for Environment and Sustainability at Wake Forest University in North Carolina.

Meiburg talked to Reckon about the EPA’s enforcement of its rules.

Since President Biden took office, the EPA has passed a series of rules aimed at a few different things, including reducing methane emissions and helping communities of color that have historically been victims of environmental injustice. I report in some of these communities, and the people there say the benefits of these EPA changes have not reached them yet.

The current EPA administrator went down to Cancer Alley in Louisiana and made a bunch of speeches that rallied the community, but nothing came of it. Why is that the case when the wrongdoing and the impact on the community are so clear and obvious?

Because of various factors, those cases are challenging to establish. I’ll use the Baton Rouge to New Orleans industrial corridor as an example. The simple location of several of these facilities, whether refineries or chemical plants, does not violate environmental law.

Are there emission standards, effluent standards, reporting, or record-keeping requirements that individual facilities have failed to meet? That would be the basis of the enforcement case. And when Administrator Regan was down there, I think his point was that EPA would pay particular attention to cases that could impact specific communities disproportionately.

But that commitment is only that the EPA would scrutinize the records of the particular facilities to see if there was any evidence that one of the emissions or effluent standards to which that facility was subject had been violated. So he can’t go down there and promise anything other than the EPA will look at facilities that potentially affect these communities to see if they can find evidence of violations of existing environmental standards.

Could it be the case that these standards are maybe a little too weak in some cases?

I’ll speak about the Clean Air Act because I’m most familiar with that. There are maximum achievable control technology standards that the agency promulgates to regulate emissions of toxic pollutants from those facilities. So, the question of whether they comply with the existing standard is different from whether the standard is stringent enough. It has to go through all the usual federal rulemaking processes to make it applicable.

Is that a Congressional issue?

The EPA is under some requirement to review the standards periodically, every eight years if memory serves. But that can be affected by resources. The EPA may not have the resources to review the standards on time. In theory, citizens can bring a lawsuit against the EPA if it hasn’t revised the standards as often as it should. Then you go through the negotiation, and they usually settle on an agreement to review.

Does the EPA have a problem enforcing its own rules, or is it more complex than that?

Firstly, enforcement is a lot of work. There’s an old saying that you only know what a rule means when trying to enforce it. There’s a lot of truth to that because when you write a rule, you write it based on the best information available. But occasionally, you write things in rules and then discover that you maybe didn’t understand it quite as well as you thought.

It takes practice to determine what cases you bring under a new rule will stand up in court and be regarded by a judge as a truly unenforceable violation. And that is no disrespect to the work that goes into crafting a rule, which can take years. EPA staff do everything they can to make them clear, but because they’re so complicated, sometimes you don’t quite anticipate everything that could come up.

How are states involved in these enforcement actions?

As a general matter, most major environmental statutes are delegated to state environmental agencies. If the state is bringing a case, then generally, the EPA will defer unless it is convinced that the degree of enforcement [a] state is seeking, whether injunctive relief or penalties, is inadequate to accomplish the purposes of the rule.

But it can get very complicated depending on the issue.

But the main thing I wanted to convey is that there is occasionally an assumption on the part of the public that the EPA can go in and look quickly and then immediately bring an enforcement action in federal court. And I wanted to make the point that the process is more complicated than that.

When it comes to enforcement, do you often have to drop cases or reduce charges because of staffing constraints?

That’s known as prosecutorial discretion. The EPA basically has to decide whether it is worth the time to pursue. If they decide it’s really not worth pursuing a federal civil case, they might pursue it as an administrative action for a slightly lesser penalty. When confronted with evidence of a violation, companies basically say, “You’re right; we want to negotiate a consent agreement.” That’s a common way of settling enforcement cases through a consent agreement after presenting your evidence.

That makes sense, given that 98% of criminal cases never go to trial. Is it often better to pursue a plea or a settlement in the case of the EPA?

That’s exactly right. They settle. The violator may also not want to move forward because they’ll spend more on lawyers than they would if they settled the case, paid the penalty, and performed whatever injunctive relief they needed to pay. I’m thinking about the BP oil spill, settled in a civil case for billions of dollars. The Volkswagen emissions case is another that settled for billions of dollars in penalties and injunctive relief. Pursuing that is a better use of time and achieves the same goals.

Does that lead to scenarios where large corporations with deeper pockets can weigh their options, pay a fine, and be done with it, while a smaller company has to accept its fate?

I’m sure that happens to some degree. Large companies that have sizable legal staff have more ability to pursue all the different lines of inquiry to challenge violations. For example, you may start questioning the EPA’s measurement methodology, how the evidence was collected and argue procedural errors on the part of the government in preparing its case.

And that’s possible if the companies have extensive legal resources behind them. On the other hand, that costs a lot of money and becomes a much more sophisticated version of the same choice facing the smaller violator. Is it worth it to fight in court or to go ahead and comply?

The recent Sackett decision, for example, in the Supreme Court, was a pretty small landowner. They were strongly backed by various organizations that funded their legal defense to take the case to the Supreme Court. They won.

Paying large fines reminds me of when I reported on banks. They’d set aside billions in their budgets to pay fines and legal fees before any action was taken against them. They just knew it coming eventually.

I realize that just as a matter of due diligence and contingency planning, large companies set aside money for that purpose. The EPA tries as hard as possible to recover the full economic benefit when it brings a case. So if the violator saves $10 million in costs by not complying, the EPA wants to recover more than that in civil penalties. The basic principle is we want everyone to know that crime doesn’t actually pay.

During the Trump administration, there seemed to be a concerted effort to slow down the EPA, freeze hiring, and generally bring chaos to the agency. Was that frustrating based on what you saw?

Yes, there was an effort not to act quickly, even to fill all the positions that EPA could hire. The Trump administration opposed giving the EPA additional resources to hire contractors to help do compliance inspections or investigate particular complaints. And so, after the Biden administration came in, the EPA requested significantly more money for enforcement. The first year, they didn’t get a whole lot of it. The second year, they got some more. And so they’re in better shape now than they were.

But it takes time to hire people, bring consultants on board, and deploy the expertise that those additional resources bring.

Of course, the labor market is very tight right now.

It definitely presents challenges because you need particular expertise to do certain jobs. If you need people to inspect a chemical plant, it’s helpful to have inspectors who know how chemical facilities work. It’s crucial, and these issues, everything we’ve spoken about, are pivotal in how effective the EPA can be.