Deep Dive Episode 272 – Environmental Enforcement: Policies, Priorities, and the Rule of Law

[Music]

 

Steven Schaefer:  We have a fantastic panel that we’d like to get to, and first, I’d like to introduce our moderator, Michael Buschbacher. Michael is a partner at Boyden Gray & Associates and the chairman of the Regulatory Transparency Project’s working group on agency coercion and enforcement. Previously, Mr. Buschbacher served at the Justice Department as counsel to the Assistant Attorney General for the Environment and Natural Resources Division. 

 

In this role, Michael was the principle drafter of several policy memos about the proper scope and procedure for the enforcement of federal environmental law. He also co-led the team that negotiated the $1.5 billion diesel defeat device settlement against Mercedes-Benz, which included the second largest civil penalty ever obtained under the Clean Air Act. Michael graduated magna summa laude from Notre Dame Law School and clerked for Justice Alice M. Batchelder on the Sixth Circuit. Michael, I’ll turn it over to you. 

 

Michael Buschbacher:  Thanks, Steven. And thank you, Senator Sullivan, especially for the kind words about Boyden, who was a wonderful colleague and as you pointed out a great supporter of The Federalist Society. So let me just go very quickly through the introductions. If you want to know more, you should just hop on Google and look up our fantastic panelists there. 

 

The problem with environmental enforcement as I see it is as follows. We’ve got two competing sets of goods. We all want clean air, clean water, clean land, and responsible environmental stewardship. And we also want to live under the rule of law. Having a frank conversation about balancing these two things is very difficult, and often I think we devolve into caricatures of our political opponents. 

 

All of these issues are now in flux more than ever, I think, because we’ve got a newly formless Supreme Court, an Executive Branch that has made environmental policy a cornerstone of its domestic agenda, and a new focus on the intersection of environmental policy and race and all this happening in a political environment that’s the most polarized it’s been in living memory. My goal for the conversation here today is that we have a spirited good faith, cross-partisan debate and discussion about these fundamentals. And since this is a Federalist Society event after all, there is no echo chamber here. And I think today’s panel well exemplifies this commitment. We’re going to be hearing from a wide range of viewpoints delivered by truly leading experts. 

 

Our opening speaker will be Professor David Uhlmann. Professor Uhlmann is the President’s nominee to be the Assistant Administrator for the Office of Enforcement and Compliance Assurance at EPA, OECA — only a slightly Orwellian name for a place. It’s a good place. He currently serves in OECA as the deputy assistant administrator. He’s on leave from the University of Michigan. Before joining the academy, Professor Uhlmann served as Section Chief of the Environmental Crime Section of the Justice Department. 

 

The next speaker is going to be my friend Susan Bodine. Susan’s a partner at Earth & Water Law here in D.C. During the Trump Administration, Susan was assistant administrator of OECA. And previously, she worked as chief counsel for the Senate Committee on Environment and Public Works and is a truly preeminent Republican voice on environmental enforcement policy. Just a few weeks ago her scholarship on the Clean Water Act was cited in Justice Thomas’s concurring opinion in Sackett. 

 

After Susan, we’ll hear from Eric Schaeffer. Eric’s the executive director of the Environmental Integrity Project, which he cofounded back in 2002. Previously, he served with distinction as the director of EPA’s Office of Civil Enforcement. And prior to his service at EPA, he worked at Morgan Lewis and spent, I think, six years on the Hill. 

 

And last we’ll hear from another one of my friends, Jeff Wood, now in his twentieth year of practicing environmental law. Jeff’s a partner at Baker Botts. During the Trump Administration, he served opposite to Susan. He served as acting administrator — I’m sorry, acting assistant attorney general at ENRD, which is the top environmental job at the Justice Department. And despite the acting title, this was a position Jeff held for I think nearly two years, which I believe is a record. Prior to his service at DOJ, Jeff worked on the Hill as environmental counsel to Senator Sessions and on the staff of the U.S. Senate Committee on Environment and Public Works. 

 

I’ve been told that we do have until 2:30, so we’ve got a little bit more space, which is great. I’m going to ask each of the speakers to give short opening remarks with a little extra time for Professor Uhlmann. And then we’ll have a moderated discussion and some time for Q&A at the end, including questions from the audience. So with that, David, please go ahead. 

 

David M. Uhlmann:  Well, thank you, Michael, and thank you, everybody, for joining us today. It’s good to know the professor has extra time since most professors need extra time. I also want to thank you for the invitation to appear before you today with Susan Bodine, Eric Schaeffer, and Jeff Wood. I very much look forward to our panel discussion. 

 

Let me start by addressing an elephant in the room, which is why someone whom President Biden nominated to lead enforcement at EPA is appearing at a Federalist Society event. I am not here under duress. I wanted to be here because I want to make the case that we can bridge our partisan divides and find common ground around the need to provide a sustainable future for our children and our grandchildren and because I believe that the enforcement of environmental laws must be a nonpartisan venture that never succumbs to political or other outside influence. 

 

This is a profound moment for environmental protection efforts in this country. We’ve achieved significant success over the last 50 years during both Republican and Democratic administrations, addressing many of the challenges that led to the enactment of our environmental laws during the 1970s. We have cleaner air, healthier rivers and streams, and fewer hazardous waste sites than in any time in our lifetimes. We have achieved those successes because of the efforts of companies across America to meet their environmental obligations and the efforts of EPA and the Justice Department to enforce against companies that break the law and put profits before the health of our communities. 

 

Despite those successes, we face numerous challenges, starting with the existential threat of climate disruption, the scourge of PFAS contamination, and the reality that for too long the worst effects of pollution have been visited upon overburdened communities. A changing climate with searing heat, wildfires, worsening storms and increasing drought does not care whether we are conservatives or progressives, Republicans or Democrats. The obligation to protect military families and farming communities from PFAS contamination should not be a partisan issue. And in 2023 in the United States of America, the richest country in the world, we should be able to assure parents that when they turn on the tap in the morning the water will be safe for their children to drink. Those same parents should know that when they take their kids to school in the morning the air will be safe for their children to breath. 

 

I’m equally certain that how we enforce the environmental laws in the United States should not be a partisan issue. I served for 17 years as a prosecutor at the Justice Department in both Republican and Democratic administrations where we made decisions about what cases to bring based solely on the law, the facts, and the obligation to do justice in our cases. There simply is no room for political influence or bias in the enforcement of any of our laws. 

 

I am committed to upholding those principles at EPA. We should promote the efforts of companies with strong ethics and integrity in environmental stewardship programs who meet or exceed their obligations under the environmental laws. Companies who are good corporate citizens who make the investment and effort necessary to comply with environmental laws should not be at a competitive disadvantage with companies who break the law and expose our communities to harm. Upholding the rule of law and providing a level playing field for law abiding companies are fundamental American values that have served us well in the United States across administrations. We must always remain true to those values. 

 

It’s no secret that I serve an administration that has a different approach to environmental protection than the last administration, which understandably has an impact on the priorities we are pursuing. We currently are in the process of developing national enforcement and compliance initiatives, which will go into effect on October 1 and continue for the next four years. We’ve proposed to include climate mitigation and PFAS initiatives. We also have asked for public comment about whether we should pursue coal ash and lead initiatives, and we intend to include environmental justice in all of our initiatives. 

 

Each of those proposed initiatives represents a heightened emphasis on tackling 21st century environmental problems. That said, we also have proposed continuing an initiative under Section 112 of the Clean Air Act to prevent accidents at chemical plants that began under the Obama Administration and continued during the last administration. We have proposed continuing a drinking water initiative begun during the last administration, as well as initiatives focused on clean air for healthy communities and to address significant noncompliance under the Clean Water Act. 

 

We may not include all of them, but the fact that we are considering them hopefully belies the notion that environmental enforcement priorities careen wildly between administrations. We will make final decisions this summer about our initiatives, but what I’ve described in terms of similarities and differences across administrations reflects a consistency in our environmental enforcement approaches that should be reassuring. Each administration should have the ability to make choices about what it sees as the most significant environmental enforcement priorities while remaining open to the idea that there are going to be priorities from prior administrations that should remain in place. 

 

Of course, there are differences in enforcement philosophy across administrations. The last administration took a more deferential approach to state agencies than the current administration. The last administration did not allow the use of supplemental environmental projects, which have resumed under the current administration. 

 

But even in these areas, there historically has been significant common ground. Both Democratic and Republican administrations seek strong partnership with state environmental protection agencies. And while the last administration was an exception, both Democratic and Republican administrations historically have endorsed the use of supplemental environmental projects and community service to address the generalized harm to communities caused by unlawful pollution that cannot otherwise be addressed through a mitigation and restitution. 

 

Abraham Lincoln once said “Law without enforcement is only good advice.” I’m committed to leading strong enforcement and compliance programs at EPA. For that reason, I have advocated for more enforcement resources after a decade of budget cuts, which cost EPA approximately 950 enforcement positions nationwide or 30 percent of our enforcement and compliance workforce. In this fiscal year, over 200 of those positions will be restored. So we expect to see more robust enforcement and compliance efforts at EPA going forward. 

 

Increased attention to enforcement and compliance is necessary to meet the 21st century environmental challenges of climate disruption, promoting environmental justice, addressing PFAS contamination, and making sure that everyone living in the United States can breathe clean air and drink safe water. We must be vigilant about the principle that politics play no role in enforcement matters at EPA. We uphold the rule of law. We provide a level playing field for American businesses. We do everything we can to protect the environment and our communities from harmful pollution. We make decisions based on the law, the facts, and a commitment to fairness and fair play. 

 

Our nation’s environmental laws provide exceptional tools for improving the lives of hard working Americans and meeting our obligations as stewards of the environment for future generations. A healthy environment and a sustainable future are values that we all share. Everyone living in this country should be able to breath clean air, drink safe water, and live in a community free of the harmful effects of toxic pollutants. We intend to do everything possible to make good on those profoundly human values to deliver on the promise of America’s environmental laws and to provide a sustainable future for our children and our grandchildren. Thank you very much. 

 

Michael Buschbacher:  Thank you. Susan?

 

Susan Bodine:  Thank you, Michael. You are going to hear a lot of high level agreement. I don’t think there’s anyone in this room that doesn’t value a clean environment. And I also don’t think there’s anyone in this room who doesn’t understand and appreciate that compliance with environmental laws is key to achieving a clean environment and the role that enforcement plays in compliance. 

 

You have to have enforcement, first, to deter noncompliance and of course then where noncompliance occurs to bring people back into compliance. But there are obviously as David mentioned differences in approaches. And so I just want to tee up some possible discussion items on differences, so I’m going to talk about targeting, measuring, and injunctive relief. 

 

Targeting is focusing your resources where it has the most impact. There are more violations out there than states and EPA collectively have the resources to pursue. So coordinating and allocating resources is critical. Now, I personally believe we should be targeting based on likely violations, and this is really targeting inspections and risk to exposed populations. I don’t think we should target specific industry sectors. 

 

And the reason is when EPA targets an industry sector instead of pollution it gives the perception—and I use that word widely—the perception that enforcement is being weaponized to achieve a political, not a public health, goal. That may not be the reality at all, but I think that the perception of what’s going on is as important as the reality. You might end of pursuing the same kind of facilities under either approach. For example, if one of your priorities is to help the Air Office reduce the number of areas that are in nonattainment, for example ozone nonattainment, you might target oil and gas facilities in, for example, the Uintah Basin in Colorado and Utah if they’re violating the state SIP and they’re contributing to the nonattainment. But you’re targeting them because of the fact that they are causing the pollution as your reason, not per se because they’re oil and gas facilities. 

 

Targeting a sector also does lead to scrapping the bottom of the barrel, trying to achieve that goal and get that last refinery or that last power plant or even municipal waste water treatment plant under a CD, a consent decree. And again, that’s a misallocation of resources. It also actually could encourage the EPA staff to find creative ways to bring those last few facilities under a CD, going beyond perhaps what the program office has articulated in regulation or guidance, again, to achieve an enforcement goal. So you have to be careful how you target about what kind of incentives you’re creating for the staff. 

 

If you target based on exposures, you’re going to end up targeting a lot of facilities in environmental justice areas. That’s what the data shows, and EPA has reported its data on the number of actions it’s taken in environmental justice communities over the years, although the last report I saw published on the website was in 2020. But nonetheless, the data are robust. Large, large numbers — large percentages of the actions are in EJ areas. 

 

So that leads me to measuring. EPA staff like targets. They like numeric targets. I literally had an enforcement director tell me just give me a number and I’ll meet it. I was like no, no, no, no, no, that’s not what we’re talking about here. Trade press likes to focus on numbers, too. The problem with end of year results is that each case counts as if it’s equal whether it took 10 years or 10 days. 

 

I know how EPA can get its enforcement numbers up. Just tell the regions to produce numbers, and they will. And you’ll get a lot of really small cases that don’t really have much impact. I also know how you can get your inspection numbers up. You can tell the regions that they can count online file reviews by a summer intern. You can let them count every file they look at at a central office with underground injection control records as an individual inspection, even though they never went to the well field. And you can actually let them count helicopter fly overs of a facility as an inspection. And I won’t comment on whether those are real examples or not, but EPA does now have a definition of inspection and regional consistency because there is a definition in place. 

 

Injunctive relief, in my view, compliance is a must. Mitigation and SEPs, supplemental environmental projects, might be okay depending on the circumstances of the case. When setting a penalty, EPA has always taken the actions of the defendant into account. That’s what SEPs are. Supplemental environmental projects are part of a penalty calculation. And they are not injunctive relief. 

 

I don’t have a problem with SEPs actually as long as the 2015 EPA memo — EPA SEP policy is complied with. That policy prohibits third party payments. I am concerned about injunctive relief that imposes additional requirements that have never been adopted by the program office through notice and comment rulemaking. In my view, that is regulating through enforcement. And in my view, that’s never okay. So I hope I’ve teed up a few issues for discussion, and I’ll turn it over. 

 

Eric Schaeffer:  Wow. That was great and very interesting. And there are some things we agree on at the high level. But since I’m here for the loyal opposition, I’m going to focus on the things we don’t agree on. 

 

So rule of law, what is that thing? It’s not the outcome that you like. In other words, it’s not — the rule of law doesn’t belong to the winners in litigation. It has to mean something more or it doesn’t mean anything at all. More than 200 years ago Justice Marshall said in Marbury v. Madison that legislatures legislate. They make the laws. It’s emphatically the duty of courts to interpret those laws. They have the final say. 

 

That’s held for more than 200 years. I would respectfully suggest that firing federal judges through a legislative act—and I know that’s a metaphor. We’re talking about the Mountain Valley Pipeline case—because you don’t like their decision is not consistent with the rule of law. I think legislation that prohibits judges from reviewing permits to determine if they were lawfully issued is not consistent with the rule of law. 

 

So I’m laying this out because I really hope that you understand, and I think you do, that we have profound disagreements on what the law is, what it requires, what it prohibits. At least outside this room we have profound disagreements. And those are going to play out in courts, and they’re going to play out in politics. And separating the signal from the noise is going to be important when you hear concepts like rule of law thrown around. 

 

I will say that enforcement is always informed by litigation risk, and it should be. But you enforce the law that you’re given. You don’t enforce based on what you think Justice Alito might get five Supreme Court justices to agree on one day. That’s just not going to work. That’s not your job as an enforcer. So if the five justices decide that adjacent doesn’t mean next to and that’s just as plain as day and everybody should have known that all along, that doesn’t mean that enforcing based on a contrary interpretation, basically Rapanos, makes you a scofflaw or somebody who has contempt for the rule of law. We have to agree on the rules of engagement is what I’m trying to suggest and not be constantly attacking the motives of people on either side of the argument. 

 

So I’ll just leave that for you to think about. I do think these days it’s a tougher job in the enforcement world because—and I’ll just say it—I don’t think precedent means what it used to mean. You can’t look at the cases, rack them up, and say well, I know how this is going to turn out. We have—I’m just going to say it—some very activist judges who will look beyond the case in controversy in front of it and try to knock out a regulation or statute if they can. Just call it a major question, for example. And you don’t even need an actual case. You can go beyond it. You can go beyond the case. You need a case to get to you, but once it’s there, you don’t have to stop by making a decision in that case. You can reach further. And so navigating that is going to be very difficult. 

 

So federal and state enforcement is critical. There aren’t enough resources to cover the terrain. Those issues should be worked out. They have to be as cooperatively as you can. There are times, though, when a state just isn’t doing what it’s supposed to do, and the federal government has to be willing to go in in those situations. 

 

And this is just a reminder that the statute says — it has important words about cooperative federalism. It also very explicitly says once you delegate a program to a state for implementation, the Clean Water Act program, federal enforcement authority is not surrendered. It’s retained. So the feds always have the authority to enforce, even after a program is delegated. They should do that smartly and choose their targets wisely. But they have that authority. That has to mean something. 

 

I will flag that we’re worried about citizen suit standing. I think the current crop of judges, the newly appointed judges, many of them are out to knock out citizen suit standing or shrink it. Exxon v. Baytown is a case to watch. I was at the argument. I don’t think it’s going to go very well. I think the environmentalist need to be nimble and need to be smart about what’s going on. They need to — if you are bringing a citizen suit, you want to nail down as many affidavits as you can. They better be good. You better be ready. 

 

But I also think when it comes to enforcement in general, nonprofit organizations need to do a couple things. One is they need to take the long view, which is just what The Federalist Society has done, and not just react to the immediate crisis or the immediate case. I don’t think we’re very good at that. There needs to be a real thoughtful, sustained effort to hold ground and in some areas regain ground and maybe in others to concede that some of the arguments you’re raising has useful points and that we need to adapt. But a long view is needed. 

 

I also want to point to one thing that encourages me, which is that the technology for finding violations or at least seeing air quality excursions or tracking spills is getting better and better. You can monitor benzene concentrations with a tool that’s about this big, and for $100 you’ll get a two week average of the benzene in the air. And another less than 100 will buy you results from the lab that reads that data. That monitoring is going to expand. And it’s going to change things. It’s going to shake things up. It’s not going to be just whatever the government has on paper or what you can access on public websites. 

 

On this issue of well, don’t go beyond what regulators have done when you ask for injunctive relief, I think Susan’s agreed that mitigation can come into play. Mitigation of course does go beyond what you’re already required to do or what would be the point. And I just ask you to remember if you’ve got somebody that’s blowing a lot of gas illegally into a community for five or ten years, you’re not — returning to compliance you’re not going to get that pollution back. People have already breathed it in. 

 

So you could nail the violator for penalties that aren’t what averages out to be two or three cents on the dollar, if you look at the statutory maximum. I’d be fine with that. I actually think sometimes the government ought to do that: go in, sock the violator with a big penalty, leave them alone on injunctive relief, and then come back tomorrow. And they’ll get the message. That’s kind of a market incentive if you want to think of it that way. But most companies are bargaining to try not to have to pay those penalties. 

 

And that’s where you get SEPs and mitigation projects agreed to. Well, they’d just rather not write a big check to Treasury. It’s embarrassing. And they’d rather do something that they can show makes up for the violation or does something for the community. 

 

The last thing I want to say is yes, compliance is the ultimate goal. It’s not the only goal. There’s also this thing called justice. People want justice. They want to see polluters pay penalties. There’s no amount of law review articles or debates in the academy that are going to change that. People intuitively want to see polluters pay. 

 

And I would just ask you — and this is a crude analogy. If you hear a noise in the middle of the night and a burglar is breaking into your house, you call the police station. What you don’t want to hear is thanks for calling. We’ll be out in a couple days with a PowerPoint that shows you how much better the compliance rates are citywide. That’s not what you want to hear. You want somebody to get on the person who’s breaking into your house, deal with it, put them in jail, make them pay a penalty or whatever. That’s the dilemma. So sure, getting better compliance rates is a goal. Don’t forget justice. Thank you. 

 

Michael Buschbacher:  Thank you. Jeff? 

 

Jeffrey Wood:  Thank you. Thank you, Michael. Thank you, Eric. I really appreciate your comments, Susan. Good to see you again. And Professor Uhlmann, it’s good to be back here with you. 

 

This even is titled “Environmental Enforcement: Policies, Priorities, and the Rule of Law.” Policies and priorities are important, and we’ve heard about some of those today. I’d like to focus my opening remarks on the principles of environmental enforcement, at least as far as I see them. 

 

Policies and priorities change from one administration to the next, and I think that’s the way it should be. That’s perfectly consistent with our structure of government. Elections matter. New officials come in. They have different perspectives, and those policies and those priorities as Professor Uhlmann has outlined for his time at EPA — I know Susan had her priorities as well. That’s perfectly fine. 

 

I do think the neutral principles of federal law enforcement in the environmental arena as in all areas of law should be consistent as much as possible from one leader to the next, from one administration to the next, and we should be aiming and targeting towards that end of having those consistent neutral principles built upon the rule of law and built on justice to ensure that we’re doing this the right way. The consequences if we do it poorly are severe, not just for the environment but also for those who are on the other end. 

 

Let me say this. As the head of the Environment Division at DOJ, ENRD as it’s usually referred to, I just came to appreciate what a powerful force for good ENRD is in this country. No institution is perfect. I think our institutions matter a great deal. DOJ matters a great deal. EPA matters a great deal. The people that work there matter and do vital work every day to make this country work and to be what our founders intended. 

 

We don’t do it perfectly, though, and in some ways we need to take a hard look and see where can we do things better. If you’re sitting here in Washington, D.C., as those of you in this room are, if you’re watching online in many communities around the country, it’s undeniable that you’re breathing cleaner air, drinking cleaner water in significant respects because of the work of DOJ’s Environment Division. We can say the same thing for the work of state agencies who are out there every day in greater numbers and in more places doing the exact same work. And their work is incredibly crucial as well. And I think Susan and David, yes, even EPA gets some credit for some of the progress that’s happening out there. 

 

But I do think that it’s true that DOJ and EPA in our zealous law enforcement work have overreached in some cases. And there is a need from time and time, and it’s perfectly fine and right and good for this to happen, for there to be course corrections. And so I think in 2018 when I was leading the division when the attorney general and the associate attorney general said hey, what are the policies and priorities of the environment division? What are you up to? We felt like it was important to be transparent. I think transparency feeds into accountability. And we were able to say, okay, what are the policies that are going to govern our work? What are the principles that are going to govern our work? And so we went about that task. 

 

Within DOJ in the Environment Division there really isn’t a history of doing that. EPA has their national enforcement initiatives or national compliance initiatives. But there really wasn’t this practice previously of trying to pronounce what these are. So we went about that task working with our senior career and appointees to develop what those principles should be. So let me just share a few of those today because I think that helps inform at least my perspective and the perspective of those who view environmental enforcement from my side of the aisle, what we think about. 

 

Number one, impartial rule of law — adherence to the impartial rule of law. This means that when making enforcement decisions federal environmental enforcement attorneys must enforce the law as Congress has written it and within the limits that Congress has established. And just to Eric’s point which I think is a fair point to make about Mountain Valley, it’s Congress’s prerogative to decide what the law is. And the agencies follow suit. The agencies don’t have constitutional authority over property of the United States. Congress has constitutional authority over the property of the United States and has the right to come in and say when and where pipelines can and should be built. 

 

I think it’s one of the basic points of the Supreme Court’s recent jurisprudence in cases like Sackett and West Virginia v. EPA, really reinforcing this notion that federal actions, agency actions including enforcement should not be premised on novel liability theories. There’s a temptation when you have the power of enforcement to develop theories that might advance your case. But it’s crucial that everyone working in those cases always remains mindful of the limits of federal power as enacted by Congress. 

 

I do want to caveat and just say about Sackett it’s an important decision. I support the decision. I think it’s right. But out there in the public we need to be aware and if you’re advising clients, I think it’s important to remind them that the rule of law matters, including in the protection of water resources. I’m worried that the perception may be out there that in light of Sackett it’s now okay to develop without getting permits or without consulting with the Army Corp or other agencies that are involved at the federal and state level. And it’s important that the public be aware that just because Sackett came out doesn’t mean it’s free reign on wetlands. We need to continue to protect wetlands and ensure that those that are properly subject to protection under the Clean Water Act remain so. 

 

This impartial rule of law also means that civil or criminal charges must be premised on the violation of federal statutes and regulations, not upon mere agency guidance documents or informal agency pronouncements. Under Attorney General Sessions the Justice Department expressly prohibited DOJ attorneys from using civil enforcement authority to convert agency guidance documents into something more like binding rules. I also think on the back end of the enforcement process settlements and consent decrees must align with statutory authorities in controlling law. So in fashioning settlements, Attorney General Sessions said, look, we’re not going to do third party payments at all, unless it’s a payment that directly remedies environmental harm at issue in the case, not this notion of generalized harm, but specific remedies of direct harm that’s at issue in the case. And I think that’s an important sort of follow on from the notion of the rule of law. 

 

And while mitigation can be an important remedy obtained in some environmental cases, it’s not a penalty and not always allowed under every statute. So it needs to be looked at statute by statute to see if it’s appropriate in that case. And where it is allowed, mitigation should be calculated to address the extent of actual harm. In the past, I think there may have been a practice to just sort of get an approximate or maybe close enough for government work. But no, you actually need to say what is the extent of actual harm, and it can’t be done more than that. Otherwise, it turns mitigation into another penalty which Congress hasn’t authorized. 

 

So stated differently, the impartial rule of law is about doing justice. And I don’t mean here a fuzzy notion of something like ocean justice. We saw the President announce a week or two ago a new policy on ocean justice. I’m talking about the old-fashioned justice justice. 

 

In Federalist Number 51, Madison wrote, “Justice is the end of government. It’s the end of civil society.” Our Constitution is from the very outset about establishing justice. Justice under the law is what environmental enforcement officials must view as their first principle, and this understanding, I think, is really the first step in building any enforcement case to do all that you can justly and rightly under the law. 

 

Other principles that we emphasized during my time there, and I’ve heard them echoed here today, cooperative federalism — this is about respecting the primary. It’s important to keep in mind Congress has directed that states have the primary role in environmental protection in our country and valuing their perspectives and interests in seeking to achieve shared environmental objectives. And I think it’s very important, I think, for Congress to take a look at ensuring that in light of Sackett, in light of other decisions that states have the resources they need to fully implement and administer these programs and enforce them in the right way. 

 

Third, pragmatic decision making, this is primarily about the people conducting enforcement work. We don’t need automatons who robotically and unthinkingly seek to enforce any and every violation of federal and environmental law, nor should we be ignorant of the real and devastating consequences on communities of some environmental violations. So it’s important that we obtain prompt compliance. I think that was a real key point of Susan’s tenure was focusing on compliance. And I applaud that very much. Compliance achieved today is better than some outcome that happens after 10 years of litigation. 

 

In every respect, every federal law enforcement official as they do their work must do so impartially without special treatment for or animus against any particular person, industry, group, or interest. And they have to be careful to not single out but also not to overlook a particular sector of the economy that may or may not be causing harm. 

 

And last, let me just echo we need strong institutions like DOJ and EPA. They matter a great deal for the quality of the human environment. We’ve heard today a lot about the results of enforcement, the results of environmental compliance and how things have improved. But there is still a lot of work to be done. They need the resources to do that work, and they play a vital role. 

 

I was honored to join — and I would just be remiss if I didn’t say this. I don’t think it’s been said yet on the panel. But I was honored to join many others in supporting Professor Uhlmann in his nomination to serve as the head of EPA OECA. I know he shares these neutral principles of environmental enforcement, and I’m confident that he will carry that with him in this role if he were to be confirmed. And I think those of us on this panel would strongly support his confirmation in a timely way. And I think the work that he has to have before him is super important, so thank you for agreeing to serve. And thank you. 

 

Michael Buschbacher:  Thanks, Jeff. So I want to give you each a chance to respond to your fellow panelists’ remarks, but I do want to kind of frame it a little. I think where the disagreement seems to be at least in part is what to do with statutory silence, things that go beyond what statutes say. So Clean Air Act, the remedial section for government enforcement authorizes injunctive relief to “restrain violations and to require compliance” and then civil penalties. Clean Water Act is similar, “restrain violations, require compliance.” RCRA, similar. I can keep going; right? There’s no mention of mitigation in there. 

 

I suppose you could pick the one phrase out of the Clean Air Act about any other appropriate relief. But the notion with a lot of injunctive relief — and Eric, I was actually delighted that you made the point about penalties because I think there’s a way of reading the statutes that make a lot of sense, even without mitigation relief. This is just one example. But I’m curious for the panelists to kind of explicate where you think EPA and DOJ should be drawing the lines about operating when there is statutory silence. 

 

David M. Uhlmann:  All right. I’ll bite. It’s another hazard of being a law professor. So I guess I’ll push back gently on two assumptions that underlie the question. The first was that there was disagreement because I listened really carefully, and I think it’s instructive how much consistency there is in the views that all four of us expressed. 

 

I mean, I can identify, and I did actually I think anticipate some of the areas where we might differ. And Jeff pointed out correctly, I think, that elections matter, and policy choices can be made differently across administrations. And that’s appropriate. And we might have different philosophies about issues like the role of the states, although I think we all are very much in favor of a strong partnership with the states. And we might have some philosophical differences around how to achieve — which I think goes to your question — how to achieve — how to address the harm that occurs in communities as a result of pollution. 

 

And so that’s where I’ll bite. I think that generalized harm is a major problem under the environmental laws. I was a criminal prosecutor, so when we could seek restitution, which is the criminal law version of mitigation, in a criminal case, we didn’t just choose to do that. Congress actually commanded that we do that. We were required before we sought penalties, before we sought any other financial ramifications we were required to provide restitutions to the victims of crime. 

 

But the problem in the environmental context is so much of what happens to our communities is cumulative. So much of it is generalized. And so much of it involves harms that I don’t know that we can prove by a preponderance of the evidence in a civil context. Well, at sentencing it would be the same in a criminal context. But I don’t know how often we can show that. Sometimes we can and we do and I think we agree on the ability to do it there. I think the question is whether we can go further than that. 

 

And I don’t think — this is the other place I wanted to push back. I don’t think it’s statutory silence. You pointed out that courts do have the ability from Congress to address harm. They also have the ability as courts have equity to address harm. And so I don’t think we are or should be enforcing in areas of statutory or regulatory silence. In fact, I think that’s contrary to the rule of law. 

 

So I would never advocate that we use silence as a basis for action. Congress makes the law. The agencies promulgate regulations. We’re bound to follow those. And if they’re silent on a question, they haven’t spoken to the question. And so we don’t get to insert our judgment in order to operate differently. But I don’t think that’s what’s going on in the restitution space where they’ve clearly spoken, in the mitigation space where I think they’ve clearly spoken, or even in the supplemental environmental project. And on the criminal side it’s called community service — community service space. Where we’re following the policies as Susan pointed out, the 2015 policy on the civil side and my former colleague Ron Tenpas did a policy which I think John Cruden may also have updated — but there have been policies on the criminal side as well. And I think as long as we’re within the contours of those policies we’re operating within the law, not in absence of the law. 

 

Susan Bodine:  Well, I’ll bite also, of course. And actually, I don’t think I disagree with anything you said. But I’ll find some disagreement. So when I said I was concerned about injunctive relief going beyond compliance, this is in the settlement context. And a settlement is a contract. And in the context of a consent decree that’s entered by a court, then there is the inherent power of the court in equity. And that is very powerful.

 

Michael Buschbacher:  Where does that come from?

 

Susan Bodine:  I think it comes from English common law. But be that as it may — and yes, the Clean Air Act does have — and only the Clean Air Act has that extra language about such other relief as may be appropriate. And the other statutes don’t, which is absolutely true, which is why I am concerned where you may have additional relief. 

 

Well, here’s my very specific example. The Air Office has promulgated a rule for refineries that requires fence line monitoring. They have not — and maybe the rule finally went final for certain categories of chemical plants, but that was very recent. But they haven’t done it across the board. And so where you have a — the Air Office has very specifically regulated with respect to one sector. And it’s a compliance requirement. I don’t think it’s OECA’s job to do the work of the Air Office where they have chosen not to change their rules and insert that additional requirement and say, no, we’re going to do this as a matter of enforcement in the settlement context. And again, it’s because you have notice and comment rulemaking for a reason. 

 

So I think that if we’re going to get differences, it’s going to be at that kind of granular level, like what is this specific injunctive relief and what is the authority for it? If you can get somebody to agree to it and you can get a judge to enter it, what’s really terrifying is that you can do almost anything. That doesn’t necessarily make it right, but you can extract a lot of actions from a defendant who simply — yeah, because they want to settle the matter and want to move beyond. 

 

So the enforcement office is very powerful. DOJ is very powerful. And so I think that it’s inherent in those two offices to be judicious and careful and stay within their lanes and stay in terms of making sure that people do come into compliance with what the law actually says. As I said before and Eric picked up on, I don’t have any problem with mitigation, mitigating for past harm. SEPs aren’t mitigation. Penalties aren’t mitigation, and basic core injunctive relief is not mitigating for past harm. It’s bringing back into compliance. 

 

Now, mitigation is a component of injunctive relief. But it’s different. And it’s important not to mix these up. I can’t tell you how many times I’ve had SEPs be characterized as third party payments. They simply aren’t — or SEPs characterized as injunctive relief and it simply isn’t. It’s part of the penalty. So perhaps it’s confusing, I supposed, but I do think it’s important for enforcement officials to be very careful about how they exercise the enormous power that they have. 

 

Michael Buschbacher:  So Eric, you wanted to jump in?

 

Eric Schaeffer:  I do. So EPA has a 2012 policy that defines mitigation pretty well as something you could ask the court for. So if you can ask the court for it, I don’t see why you couldn’t agree to it in settlement if the other side is willing. I do want to remind people that people who are being subject to fence line monitoring are pretty broad shouldered defendants. 

 

We are not talking about the Little Sisters of Mercy here. We’re talking about Shell. These are big boys and girls, big men and women. They can negotiate. They would rather not pay a significantly larger penalty. If you put the choice to them, they might elect to do something like fence line monitoring. The reason that requirement has been negotiated into consent decrees is so much of the emissions from petrochemical plants are in the form of fugitives. 

 

EPA goes onsite. They find stuff leaking all over the place. Okay? The concentrations you see at the fence line when you do the monitoring are much higher than you would ever expect to see from the emissions. So you are under reporting your emissions because the way EPA models risk right now or what they have done for years, they’ll take the report of emissions, the annual inventory. They’ll plug it into their model. That will spit out what the downwind exposures are. When the actual monitoring is done, the concentrations are much, much higher. 

 

Just to give one example, for the refinery rule, EPA said we expect based on the emission inventories one refinery to have an annual concentration as high as nine micrograms. Well, 30 refineries have crossed that mark in the four years since that rule’s been implemented. And we’re finding similar things at other refineries — I’m sorry, at other chemical plants. And so I think to negotiate something that frankly compensates for the lack of accurate monitoring — and another option would be, you know what, you’re going to have to monitor your leaks once a week. Okay? That would be injunctive relief that would be mitigation because clearly you don’t have a handle on what’s coming out of your plant. That’s what EPA is finding. So these are responses. 

 

I’m just going to filibuster with one more example. You go onsite. You run a test. Flares are supposed to destroy 98 percent of organics. You find that they’re only destroying 85 percent. Why? Because you’re blowing too much steam into the process and you’re driving the heat value down. You’re not getting good combustion. 

 

Why can’t EPA say you need to work this out? We need you to manage your steam addition rate in a way that gets you 98 percent? I do not think you have to write a special rule for every violator when you run into a problem like that. That’s just not practical. Companies are willing to do it. The alternative would be you blew your limit. We’re going to penalize you for all the days you’re out of compliance, and we’ll see you tomorrow. And we’ll do the same thing. Is that a good answer? I don’t think that ultimately is very rational. It doesn’t do much for the environment. It just creates this perpetual enforcement treadmill. So that’s my speech on that. 

 

Michael Buschbacher:  Yeah. Go ahead, Jeff. 

 

Jeffrey Wood:  I think there are some differences here on the panel on the categories of how you resolve the proper structures of settlements. We were very clear during Attorney General Session’s era that if you’re going to do an environmental settlement, have a consent decree, you’re not going to use a consent decree as a way to regulate an entire industry. You’re not going to use a consent decree as a way to get mitigation that far exceeds the facts that were at issue in the case. And I think it’s a matter of working with the enforcement teams to make sure that they have a basis to justify what was the actual extent of harm and what are you doing that’s cost effective and reasonable to mitigate that harm within the confines of that case? 

 

I sort of question the notion that federal courts have unlimited authority or ability to fashion whatever remedy they want. They’re presented with this. And there is this awkward dynamic of forcing — I guess the phrase would be encouraging defendants to propose ways to mitigate. It’s a hard context, I think, for them to be in. And you’re forced to — you’re at the mercies of the federal prosecutors at that point. And so I’d like to see in the enforcement context more careful consideration of what was the actual extent of violations. 

 

With regard to generalized harm, Congress has created significant amounts — significant programs. They’re spending significant resources on addressing generalized harms. And so I think the courts who have to look at a consent decree and say is this fair, just, and reasonable should have the data in front of them to know, okay, is this mitigating for actual harm or is it something else. 

 

Susan Bodine:  Could I? I’d like to jump in again. 

 

Michael Buschbacher:  Go ahead. 

 

Susan Bodine:  It looks like David might want to also, which is good. This is what you want. 

 

Michael Buschbacher:  Yeah. That’s what we’re here for. 

 

Susan Bodine:  Yes. So at the high level Eric’s remarks about isn’t this a better way of doing things, isn’t it better if you have an issue with leaks — the problem and reason I’m pushing back on it is that the Air Office has written a rule, the leak detection repair rule, that has a process. And someone could argue that that isn’t a terribly efficient process and isn’t there a better way? And there might be a better way. But the question is is it the role of the enforcement office to create and implement that better way, or is it the role of the program office? And I would say it’s the program office. 

 

And then I’ll tell an anecdote. I spent a lot of years working on Capitol Hill, so if you want to talk to me about does Congress have authority over the Executive Branch, I’m always going to land on Congress’s side because that’s where I’ve spent a lot of my career. I remember being briefed by — and this was a very long time ago because I’m very old — but being briefed by somebody from EPA’s Water Office on a rule that they wanted to proposed. And I looked at them as a Hill staffer, House Transportation Infrastructure Committee, and said but you don’t have authority for that. 

 

And the staffer looked at me and said, but isn’t it the right thing to do? And I was like just because somebody thinks it’s the right thing to do doesn’t mean, one, that they have authority to do it. And either it should be the program office who implements that good thing, or in the case of lack of statutory authority it should be Congress that implements that good thing. So what I’m questioning is whether it’s the role of enforcement. 

 

David M. Uhlmann:  All right. Just two quick points because otherwise this is going to be a keynote, four panel speeches, and one question. So one is on the question of what gives federal courts the ability to sit in equity. I think that is an originalist concept, and I know there’s a strong commitment in this room and in many other settings to originalist ideas. The reality is that courts at the beginning of this country almost sat exclusively in equity. 

 

We’ve only really in the last several decades become awash in statutory law so that courts now are governed often by laws passed by Congress as opposed to sitting in equity. But their equitable powers are only reduced if Congress reduces their equitable powers. So I think that the power of the federal court to fashion remedies in equity is not only historical originalist but serves the greater good in the country often and is not something we should take lightly. 

 

I’ll also offer just on generalized harm I realized I probably should’ve given an example. And one of the best in terms of we tend to remember our own cases better than the hundreds of others that pass in front of us in these types of roles, but in the 1990s when my friend Steve Solow was an assistant chief in the environmental crime section and I was a senior trial attorney, I prosecuted a case in South Dakota against John Morell and Company and senior officials of the company who routinely violated the Clean Water Act to the point where the senior vice president of the company, top official at John Morell, the largest employer in the state, when discharge monitoring reports were brought to him each month — and by the way, this is from the era when discharge monitoring reports were this thing on paper as opposed to something electronic. He used to say who’s going to jail this month because their discharge monitoring reports were lies every single month. This conduct went on for years. They polluted the Big Sioux River for years. 

 

So how to you address that harm? There wasn’t a way for us eight years later to show what the harm to that river was, what the harm to communities along the river was. The way we did it was through the criminal law analog to supplemental environmental projects. We did it through a community service project. And I’d be the first to say those projects need to be limited to the proper circumstances. There needs to be a clear nexus to the violation. They can’t be somebody’s favorite charity, which frankly they were often in the inception of this program. That was something I pushed back hard against when I became the chief of the environmental crime section. And they can’t — first and foremost, we have to bring penalty actions. We can’t have community service projects or SEPs define our sentences or our settlements on the civil side. 

 

But I do think there’s a really important role, and I will say — Eric came close to saying this, so I’ll go the rest of the way and say we do have to be mindful of the people harmed by environmental violations. We need to be mindful of the communities that are affected. We need to be mindful of the fact that real people’s lives are changed every day by pollution in this country. And I think what we’re talking about — although, I agree. We have different approaches, but I think we’re talking about how do we address that. How do we do right by those communities? It’s a challenging area for federal environmental enforcement. It’s a really important area. 

 

Michael Buschbacher:  Let me have a very quick follow up for you on two of those points. One, in the case is called Meghrig back in the 80s, early 90s, the court looking at equitable authority — I think it was a RCRA case — said that — quoted the Sea Clammers sort of classic provision that we will be cherry about reading into statutes authority to remedy something that’s not there. And that was a case about I think it was reimbursements for some kind of mitigation pre lawsuit or something like that. Anyway, the question I have is it seems a little odd to say that equitable authority is there until Congress takes it away. Wouldn’t it be something that Congress gives in an individual statute and sets the limits on just like with every other remedial thing?

 

David M. Uhlmann:  So you took me deep on the case. 

 

Michael Buschbacher:  I’m sorry. 

 

David M. Uhlmann:  Nice. And I won’t comment on a case I haven’t read because that would make a bad lawyer. But look, I’m just saying that courts sit in equity. That is a 1789 concept, and we hear a lot about 1789 concepts. We heard the senator talk about Justice Scalia today and about Justice Scalia’s contribution. He was the consummate originalist. So if we’re going to rely on originalist theory — and I think originalist theory has its place. 

 

I think it helps inform us on what the drafters of the Constitution meant at the time they drafted it. We can disagree, debate — probably a different panel discussion and I’m probably not in government when this happens. But we can disagree and debate about whether we end there or whether we take into account other factors. But I just think it’s a fundamental concept. And nowhere does it say that equitable powers depend on Congress providing that. And that’s actually an anti-originalist idea. 

 

Eric Schaeffer:  So we had a big drinking water case in the 90s—it was civil, but you might remember it—against the city of Boston. We said you have to filter your water here, your public water supply. That’s what the statute says. The city wanted to do upstream watershed protection instead and get clean water that way. We said we don’t think we have the power to okay that in the statute. It went to the judge. What do you think the judge did? The judge said I’m not going to require them to filter the water. Why? Because it’s stupid and it would be much better to have this sort of upstream watershed protection instead. Was that rightly decided? I will ask you that question. 

 

Michael Buschbacher:  I’m having a lot of fun now. 

 

David M. Uhlmann:  He’s the moderator. 

 

Eric Schaeffer:  Yeah, I know. 

 

Susan Bodine:  New York City watershed, yes?

 

Michael Buschbacher:  No, probably not. 

 

Eric Schaeffer:  No, it was in Boston. There was a New York City case as well. But I think that might’ve — I thought the decision came in Boston first. 

 

Susan Bodine:  Okay. 

 

Eric Schaeffer:  But the same issue. 

 

Michael Buschbacher:  I think probably not. This is a Clean Water Act case?

 

Jeffrey Wood:  Safe Drinking Water. 

 

David M. Uhlmann:  I mean, did Congress take away the authority when they — because the judge clearly had the authority. 

 

Eric Schaeffer:  The judge said I sit in equity. That’s why I can do this. 

 

Michael Buschbacher:  My view is equity is something that — just like all powers that a court has to do something, they don’t just sit and magically have power. Congress has to enable them to do things. 

 

Eric Schaeffer:  He didn’t look to Congress. He said —

 

Michael Buschbacher:  Yeah. That’s why I think it’s wrong. 

 

Eric Schaeffer:  — I’m sitting in equity. That’s my right as a judge, and I’m making the decision. 

 

David M. Uhlmann:  When the Constitution was passed, there were no laws. Courts sat in equity. 

 

Michael Buschbacher:  They did in most diversity cases and yeah. And if you’re saying diversity, there’d be some interesting eerie questions there about the scope of that authority. But I tend to think that your remedial authority has to come from the statute that you’re dealing with. I don’t think it just exists there that lets you sort of be some Solomonic arbiter to come up with the best solution for — I’m not saying it’s a bad solution. But I think in a separated powers kind of system Congress makes the laws and then the courts say what the law is. And if the law doesn’t include some equitable grant of authority, I just think it’s not there. 

 

Eric Schaeffer:  This is one of these areas where I don’t think the issue is the rule of law. I think the issue is we don’t agree on basically what the —

 

Michael Buschbacher:  Yeah. And that’s the fun of it; right? 

 

Eric Schaeffer:  — law is and what courts are allowed to do.

 

Jeffrey Wood:  Can I just — in terms of where the rubber hits the road, I think, in the differences — and this was part of the backdrop when Attorney General Sessions issued the third party payment prohibition. It sort of bled over with the SEP issue. They’re different. I agree. But there’s this common concern that you can fashion remedies and direct funds and resources to things that you care about because of your particular political constituency. 

 

And that was frankly, I think, a concern that was raised during the Volkswagen settlement with the zero emission vehicle program, multibillion dollar payment required for something that was not directly connected to the violations at issue in that case. And I think that’s one of the settlements that spurred this conversation to happen. And I think we’ve moved passed that. Frankly, there were some settlements that we inherited that were changed because of that concern of payments were being directed to particular groups. 

 

And the courts accommodated that. One example I’m thinking of is one where a payment from a settlement for a Clean Air Act violation was being made to a special interest association. The court ultimately agreed to having that proposed consent decree pulled back and that payment taken out and renegotiated and reapproved by the court. But I think that’s what you’re seeing —

 

Eric Schaeffer:  Were there higher penalties in that case? 

 

Jeffrey Wood:  Well, the penalty — and that’s the key; right? You cannot calculate penalties based on whether somebody makes a payment or not. Then you end up in a Miscellaneous Receipts Act problem because you’re taking money from Congress —

 

Eric Schaeffer:  Well, but you —

 

Jeffrey Wood:  — and the purses that they have —

 

Eric Schaeffer:  — accept Miscellaneous Receipts problem eliminated. So did you get a penalty –a higher penalty?

 

Jeffrey Wood:  I’d have to go back and look at that one. I don’t think we renegotiated the penalty. I don’t think we renegotiated the penalty. I think that’d raise other concerns about connecting them. 

 

Michael Buschbacher:  I could talk about that all day long as Susan especially knows. But why don’t we — we’ve still got about 15 minutes left. So why don’t we take some questions if anyone has questions for the panel? There are microphones there and there. Aha.

 

Brent Fewell:  Great panel. Thank you for your perspectives, and it’s great to see more agreement than disagreement on the panel, even though there is disagreement. Brent Fewell with Conserve America Earth and Water. There hasn’t been a whole lot of talk about fairness, and maybe that’s a different discussion. Maybe equity is part of that. But the Sacketts have been before the Supreme Court twice. And both cases won 9-0. And even the liberal justices the first time were aghast at EPA’s decisions and enforcement action in that case. And I wonder at what point does the agency — David, I direct this to you — does the agency say yeah, we have the authority, but is this the right thing to do? Is it the fair thing to do to go after individuals in that case? And maybe that’s an outlier, but thanks. 

 

Michael Buschbacher:  Before you answer, David, I do want to thank Conserve America for cosponsoring this event. In my rush to get into the substance, I inexcusably jumped over that. So thank you very much. Go ahead, David. 

 

David M. Uhlmann:  So I’m constrained on Sackett by the fact that the Supreme Court just ruled a few weeks ago and the agency has not yet made any public statement about what its position about Sackett will be. So I need to respect that and leave that to my — well, we’ll leave that to the administrator. So I’m afraid there’s a real limit to what I can say here. 

 

Fairness does matter, and in fact in my remarks I stressed it. I said commitment to following the rule of law, making decisions based on the facts, based on the law, and based on principles of fairness and fair play. And I said fairness and fair play because fairness is a broader arguably equitable comment, but I’m not taking us back to our geeking out about the meaning of — or the role of courts of equity. And fair play is about the fact that I think the government has an obligation to always treat people in a way that recognizes their dignity and recognizes the fact that we ultimately serve on behalf of the people. So your question does go to fairness and fair play. What was fair in the case but also how should those folks have been treated? 

 

And I guess the only other — I wasn’t part of the decision. My guess, Susan would I think probably have the same instinct is that we’re talking about a case that originated in the region. It probably wasn’t subject to any significant review. I think the history of the case is clear that the agency tried to go in different directions. That’s a two way street. The litigants involved didn’t want to, so I don’t know that — and others will proclaim what our position is post-Sackett, how we’re going to proceed post-Sackett. But the Pacific Legal Foundation and others involved in representing the Sacketts wanted to continue the litigation. So I think the question can be asked there. I don’t think there was any concerted effort at the agency. Susan can speak to the four years that preceded my arrival, but I don’t think there was a concerted effort at the agency to push the Sackett case. 

 

Susan Bodine:  And I can’t speak to it because there’s enforcement confidentiality issues that live on. 

 

Jeffrey Wood:  Can I comment? Just generally I do think it’s important that when you have a court decision like Sackett that we are honest about sort of how we got to where we are. And it is important that in the law enforcement function at DOJ within the Environment Division at EPA that you’re taking into account litigation risks but also the reality of what the statute says in front of you. And a little legal humility can help go a long way in preventing cases like that from becoming what it did ultimately become. And it would be nice for agencies to take a step back and say, hey, how can we do things a little differently next time? Why don’t we focus more on what’s main and plain in our statutes instead of litigating for, what is it, 15 years over a wetland in the middle of the country?

 

Susan Bodine:  And not on a specific case but EPA and DOJ always have enforcement discretion. Yeah, you’re not compelled to go after every violation obviously. 

 

Michael Buschbacher:  Excellent. Any other folks have a question? Andrew?

 

Andrew:  Thank you. I’m very interested in the discussion today and especially what some of you had to say about SEPs and statutory authority or working in legislative silence or not. So I guess my question is — and this is mostly directed I think at David and Susan because I think David, if I heard him correctly, said that the agency does not operate in areas of legislative silence, that there is authorization for all of the policies that the agency is pursuing. And then Susan had a lovely anecdote about meeting with someone from the agency who wanted to do something which she said there was no statutory authority for. 

 

So isn’t it true with SEPs that the only statutory authorization for a SEP is in 42 U.S.C. 16138 with regard to diesel emission reductions and that that particular provision is written in such a way that it makes clear that Congress believes that even authorizing that one particular SEP is an exception to other statutory provisions, including the Miscellaneous Receipts Act? And therefore, how do we understand other SEPs when the agency pursues them? Are they in fact operating in a realm of statutory silence? 

 

Susan Bodine:  I know a lot about this. All right. So we’re sitting here saying I know a lot about this. Apparently Eric knows a lot about this. All right. So the SEP policy which was negotiated between EPA and DOJ issued in 2015 very clearly says that, again, to stay in line with and not in violation of things like Miscellaneous Receipts or Anti Deficiency, if Congress has enacted a program to give grants, then EPA cannot have a SEP that performs the same function. So when Congress enacted the DERA, the Diesel Emissions Reductions Act which authorized grants for retrofitting old diesel motors, school buses, trucks, etc., all of a sudden that wiped out the ability to do essentially diesel emission SEPs. 

 

And so the only reason the statutory fix was needed was because of the creation of a grant program. And so I would not read that particular statutory language as being a declaration by Congress that all SEPs are forbidden unless specifically authorized. It was correcting a specific problem that the members of Congress were concerned about and wanted to correct. So push back on that. 

 

Eric Schaeffer:  Susan actually does know a lot more about the SEP issue. So does David. So does Jeff. I just want to flag there’s some weird language in the diesel SEP provision which says you only qualify for a diesel reduction SEP — you can qualify if you also would qualify for some other kind of SEP and you were willing to perform it. I wish I had the language in front of me. But it does say something very like that, so what does that mean?

 

Susan Bodine:  I’m not remembering that language. 

 

Eric Schaeffer:  Oh, it’s there. 

 

Susan Bodine:  Okay. 

 

Eric Schaeffer:  It basically says — it’s weird. It’s sort of like, well, if you only can have a diesel SEP if you could have another kind of SEP, then —

 

Susan Bodine:  So none of us are prepared to — other than for me to give you the high level context of that amendment. But on SEPs more generally, again, I have to keep on harping on the fact that SEPs are not injunctive relief and that they are in fact consideration that the agency gives in setting its penalties. And if you go online—and OECA’s really good about putting all of their policies up online—and you look at the various statutory penalty policies, you will see language in every single penalty policy that says we might adjust this penalty based on considerations of other things. It doesn’t say SEPs. 

 

The individual penalty policies don’t say SEPs, but SEPs clearly fall within that. There’s definitely — you would not want to tie the hands of the agency to always impose the statutory maximum. And they take lots of considerations. And a SEP can just be one of those. 

 

Michael Buschbacher:  I’d love to talk more about SEPs, but I do think we’re coming close on time. So Steve? Thank you very much to our panelists. This was a very delightful and interesting discussion. 

 

Steven Schaefer:  Yeah. Please join me in thanking this exceptional panel. And thank all of you, and if you’d like to see more content like this, please visit regproject.org. That’s regproject.org. Thank you. 

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