October 19, 2010

Convictions for Violations of the Clean Water Act Continue to Ebb

According to the latest data published by TRAC Reports, the number of federal convictions obtained for violations of the Clean Water Act during fiscal year 2010 has continued to follow a recent downward trajectory. Since reaching a high of nearly 70 in FY 1998, the number of convictions has continued to decline toward what may be its lowest level since the early 1990s. During the first ten months of FY 2010, the Department of Justice reported 23 convictions, a pace that would produce 28 convictions for the entire fiscal year—a decline of  60 percent since FY 1998.

This is a disturbing trend since vigorous enforcement activity is a critical component of any credible environmental protection program. Convictions alone, however, do not necessarily reveal how effective a criminal enforcement program may be. A strategic decision to pursue tougher, higher quality cases rather than run-of-the-mill cases would likely produce fewer convictions in any given year. However, a quick look at some other key statistics reveals that criminal enforcement of the Clean Water Act has been trending downhill since the 1990s. The number of cases opened, defendants charged, and sentences obtained have all been falling as a general rule since 1998. In FY 1998, 636 cases were opened, 350 defendants were charged, and 173 years of prison time were obtained. Compare that with 319 cases opened, 176 defendants charged, and 57 years of prison time obtained in FY 2008. This drop in criminal enforcement activity was mirrored by a 27 percent cumulative cut in EPA’s overall budget during the eight years of the Bush administration. 

While one might speculate that the number of CWA cases meriting criminal enforcement has fallen in recent years, it is not likely. The number of major sources in significant noncompliance has actually risen in recent years, to 24 percent, and the number of smaller facilities experiencing serious noncompliance issues may be as high as 45 percent. According to the New York Times, the total number of facilities violating the Clean Water Act increased more than 16 percent between 2004 and 2007. Although most of those violations are certainly more appropriate candidates for administrative or civil enforcement, it would be difficult to conclude that there is not plenty of work for EPA’s criminal enforcement program to do. 

The downward trend in criminal enforcement was reversed to some extent during FY 2009. In that year, 387 criminal cases were opened, 200 defendants were charged (146 individuals and 54 businesses or corporations), and 76 years of prison time were obtained. The number of convictions (under the Clean Water Act) in FY 2009 (32 according to TRAC Reports) continued their general decline from earlier levels (Update: new data provided by EPA to Greenwire puts the number at 42), however, and the number of convictions will most likely continue to decline in FY 2010. This may reflect both the number as well as the quality of some of the cases that were opened in prior years. But it is ample reason to keep a close eye on EPA’s efforts to rejuvenate criminal enforcement of the Clean Water Act.

[Ed note: This post has been updated]

William Andreen, CPR Member Scholar; Clarkson Professor of Law, University of Alabama School of Law. Bio.

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