October 26, 2010

Update: EPA Releases Full FY 2010 Stats on CWA Convictions

Since my post last week ("Convictions for Violations of the Clean Water Act Continue to Ebb"), a number of significant things have occurred. On October 20, the EPA’s Assistant Administrator for Enforcement and Compliance Assurance, Cynthia Giles, announced that the Director of the Office of Criminal Enforcement, Forensics and Training was retiring and that the Director of the Criminal Investigation Division had decided to pursue new challenges within the agency. In addition to this personnel shake-up, Assistant Administrator Giles has pledged to hire 40 more criminal investigators at EPA. The number of investigators had fallen from 205 in 2003 to approximately 160. The agency appears, therefore, to be committed to reinvigorating what seems to have been, at least until recently, a lagging criminal enforcement effort. 

In response to a reporter’s inquiry prompted by my post, EPA disputed TRAC Reports' projection of convictions that would be obtained for violations of the Clean Water Act during fiscal year 2010. EPA provided statistics on the total number of CWA convictions since 1990. Instead of 28 CWA convictions (as projected by TRAC Reports), the statistics provided by EPA indicate that 32 convictions were actually obtained in FY 2010 (Greenwire, via NYTimes.com). Although the total number of convictions was somewhat higher than those originally projected by TRAC Reports, the trend remains a matter of concern. The total of 32 convictions is the lowest, according to these EPA figures, since FY 1994 and is approximately 50 percent lower than the number in FY 2000 and nearly 25 percent lower than in FY 2009, when 42 convictions were obtained. 

On the other hand, the agency statistics indicate that total convictions under all of the environmental statutes increased by about 10 percent in FY 2010 over FY 2009 levels, a year in which the downward trend of the first decade of the new century reached its nadir (140 total convictions).  This rise in convictions may well reflect the fact that the total number of criminal cases opened in FY 2009 and total number of defendants charged had increased from the depths reached in FY 2008.    

One would hope that, with new leadership and added resources, the criminal enforcement program at EPA will continue to rebound and that renewed emphasis will be placed upon Clean Water Act enforcement. One would also hope that EPA will undertake in the future to publish more detailed, timely, and comprehensive statistics on enforcement trends, including comprehensive figures on state criminal, civil and administrative enforcement as well as civil actions filed under the various citizen suit provisions.

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

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