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April 8, 2020 by Joel Mintz

Trump's EPA Uses the Coronavirus Crisis to Mask Environmental Deregulation and Suspend Enforcement

Originally published on Expert Forum, a blog of the American Constitution Society. Reprinted with permission.

It has often been observed that natural disasters bring out the best and worst in people. Sadly, with regard to environmental protection, the coronavirus pandemic has brought out the worst in the Trump administration. Using the pandemic as a pretext, Trump's EPA has continued to propose and implement substantial rollbacks in important safeguards to our health and the environment while issuing an unduly lax enforcement policy.

For example, the administration recently issued a final rule rolling back automobile fuel efficiency standards. Its new regulation effectively undoes the federal government's program to limit greenhouse gas emissions. In a severe blow to global efforts to address the climate crisis, the regulation allows motor vehicles driven in the United States to emit almost 1 billion tons more carbon dioxide than would have been permitted under the previously effective requirements.

Moreover, EPA is now in the process of rushing through a so-called "transparency rule" that would greatly limit the scientific studies that the agency may use when proposing or revising its regulations. This dramatic regulatory change will be used to curb important, much needed scientific and medical research, and …

Feb. 24, 2020 by Joel Mintz
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Originally published in The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0.

In recent months the Trump administration has intensified its assault on federal environmental safeguards on several fronts. It has proposed drastic reductions in the scope of protections against water and air pollution, lagged in the cleanup of hazardous waste contamination, allowed the continued marketing of toxic herbicides, narrowed the scope of needed environmental impact reviews, ignored and undermined legitimate scientific studies and findings, and dismantled government attempts to mitigate and adapt to the climate crisis.

Every bit as disturbing, but much less discussed, is a discouraging deterioration in the rigor of EPA’s once-effective enforcement program, which identifies and punishes polluters that skirt federal regulations.

The agency’s latest enforcement statistics reflect a dramatic decline in injunctive relief — the amount of money EPA-enforcement activities compelled polluters to commit to spending to correct their environmental …

Jan. 27, 2020 by Joel Mintz
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From time to time, a judicial decision from a federal court has the potential to have a profound impact on American society and government policy. Such a case is Juliana v. United States, in which a group of 21 young people, together with an environmental organization and "a representative of future generations," brought suit against numerous federal agencies and officials seeking a judicially mandated plan to phase out fossil fuel emissions and a drawdown of excess atmospheric carbon.

Though it could result in needed, far-reaching changes in our nation's climate change policies, this lawsuit recently ran into a legal obstacle before a three-judge panel of the United States Court of Appeals for the Ninth Circuit. By a two-to-one vote, the judges clearly acknowledged the grave and growing peril posed by an ongoing buildup of greenhouse gases in the atmosphere. At the same time, however, the panel …

Sept. 16, 2019 by Joel Mintz
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Late last month, the U.S. Department of Justice (DOJ) quietly took a major step to undercut the enforcement of our federal pollution control laws. In a publicly released but little publicized memorandum, DOJ’s Associate Attorney General for Environment and Natural Resources, Jeffrey Bossert Clark, announced that the agency will no longer approve enforcement case settlements with local governments that include Supplemental Environmental Projects (SEPs) – a long-standing feature of negotiated resolutions of environmental enforcement cases.

SEPs allow a non-complying company, state, or local government to develop an environmentally beneficial project, not otherwise required by law, in lieu of paying part of its fine. To implement its SEP program, EPA carefully crafted a Policy on Supplemental Environmental Projects with the intention of ensuring that SEPs are limited to projects that improve public health or the environment while not directly benefitting a violator or third parties. Under EPA …

July 22, 2019 by Joel Mintz
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Originally published by The Regulatory Review. Reprinted with permission.

When it comes to the need for federal regulation, the American political system is currently deeply divided along ideological and partisan lines. This division has a number of causes, but a good part of the division can unquestionably be attributed to what Professor Thomas McGarity has referred to as the anti-regulatory "idea infrastructure" and the "influence infrastructure" constructed by conservatives in the early 1970s and continued thereafter—ideas intended to block and roll back public protections along with tactics for implementing those anti-regulatory ideas.

That conservative effort has succeeded for many years, but the country has paid a steep price in terms of increased risks from the unbridled pursuit of profit. The 2018 congressional election may portend a looming backlash against the political right, with its own intransigent opposition to common sense public protections leading to its demise …

July 17, 2019 by Joel Mintz
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This op-ed was originally published in The Hill.

In a recent speech, President Trump touted what he described as "America's environmental leadership" during his presidency. He claimed that over the past two-and-a-half years, his administration has been "a good steward of public land," reduced emissions of greenhouse gases, and successfully promoted clean air and water. 

His claims are Orwellian in scope and mendacity. Even the most cursory examination of the Trump administration's environmental record reveals an appalling litany of irresponsible, anti-environmental actions.

On the existential issue of global climate change, Trump's actions have made the United States anything but an environmental leader. His decision to abandon the Paris Agreement — a promising beginning to international action to curb greenhouse gas emissions — made the United States the only nation on the planet not currently committed to achieving the accord's goals.

What progress we've made as a nation reducing …

March 11, 2019 by Joel Mintz
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This post is adapted from a recent law review article published in the University of Missouri—Kansas City Law Review.

In myriad ways – from speeches, favoritism toward polluting industries, and ill-advised regulatory rollbacks – the Trump administration has consistently exhibited unrestrained antagonism toward regulatory safeguards for health, safety, and the environment. One of the earliest manifestations of that antagonism – and arguably one of the most pernicious – was an executive order signed by the president only ten days after his term began.

Executive Order 13771, hereafter referred to as the "one-in, two-out" order, contained three directives to all federal departments and agencies. First, it provided that "unless prohibited by law, whenever an executive department or agency…publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed." Second, for fiscal year 2017, the president's order directed …

Feb. 19, 2019 by Joel Mintz
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This op-ed was originally published in The Hill.

The Environmental Protection Agency (EPA) released an annual report Feb. 8 on its enforcement activities in fiscal 2018. After wading through a bushel full of cherry-picked case studies and a basket of bureaucratic happy talk, the report paints a dismal picture of decline in a crucially important EPA program.

EPA's data indicate that it initiated and concluded approximately 1,800 civil judicial enforcement cases in 2018 — fewer than half the number it handled in fiscal 2008, the last year of the George W. Bush administration. The agency required violators to invest $3.95 billion to control their excessive pollution last year, a far cry from the $21.3 billion in pollution control expenditures that resulted from EPA enforcement in 2011. Similarly, the total amount of administrative and civil penalties that EPA extracted from environmental violators was at its lowest …

Oct. 16, 2018 by Joel Mintz
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To serve the cause of justice, law enforcement must be prompt, even-handed, and appropriate to the circumstances of individual cases. In their handling of an important recent pollution case, however, the enforcement activities of the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) have been none of those things.

The case involves the alleged use by Mercedes-Benz of software "defeat devices" in its diesel cars to override pollution control devices. There is considerable evidence that Mercedes' misconduct was intentional, and that over a period of years, its systematic cheating resulted in the emission of many times the allowable amount of nitrogen oxide – a pollutant that harms human health and contributes to climate change, smog, and other air pollution problems. In fact, one Mercedes diesel model's maximum emissions were found to be a whopping 91 times the emission standard.

The Mercedes-Benz defeat device scandal …

Sept. 21, 2018 by Joel Mintz
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This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report.

In August, 2017, Hurricanes Harvey and Irma brought widespread devastation to the southeastern United States, destroying buildings, flooding neighborhoods, and taking lives. Harvey shattered the national rainfall record for a single storm, dropping over 50 inches of rain in a 36-hour period. The Houston area suffered massive flooding, as the U.S. Army Corps of Engineers attempted to balance flooding behind strained older retention dams while releasing water to avoid dam breaches.

However, even before the unprecedented rainfall of Hurricane Harvey, severe problems had been noted at the dams. In 2016, the Army Corps noted that the dams needed repair and that a failure would be catastrophic. The federal government concluded that the dams were in critical condition in 2009. The Army Corps had multiple opportunities to evaluate the state …

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More on CPR's Work & Scholars.
April 8, 2020

Trump's EPA Uses the Coronavirus Crisis to Mask Environmental Deregulation and Suspend Enforcement

Feb. 24, 2020

EPA Enforcement in Distress -- and More Trouble Is Brewing

Jan. 27, 2020

Climate Chaos and the Courts: Disappointment (Despite Some Encouragement) in Juliana v. United States

Sept. 16, 2019

Abolition of Supplemental Environmental Projects: A Damaging Retreat for Environmental Enforcement

July 22, 2019

The Coming Decline of Anti-Regulatory Conservatism

July 17, 2019

The Hill Op-ed: Trump Trashes the Natural World and Calls It 'Environmental Leadership'

March 11, 2019

Due to NEPA, Trump's 'One-In, Two-Out' Order Does Not Apply to Environmentally Protective Regulations