EPA’s Office of Enforcement and Compliance Assurance (OECA) recently issued its annual results for FY 2024. OECA announced that the results “include [the] strongest outcomes since 2017” and were achieved by “leveraging an expanded and reinvigorated enforcement program that had suffered more than a decade of budget cuts.” EPA’s enforcement budget has certainly grown considerably, but for the most part, the new EPA enforcement numbers are a mixed bag that reflects a return to pre-COVID numbers during the first Trump Administration.

To place the numbers in context, it should be noted that several are lagging indicators along the timeline of investigation to charging decision to penalty. Cases also come in different shapes and sizes. Large complex cases take more time to resolve, and they create statistical spikes in penalty numbers. Some of the numbers are also out of EPA’s control, especially civil and criminal judicial cases that require action by the Justice Department and the courts.

Focusing here on a just few of the key metrics:

Total Civil Enforcement Case Conclusions are a lagging indicator, where cases have been in the pipeline for some time. The trend again returns to roughly FY 2018 numbers, and the vast majority of these (blue and yellow above) relate to administrative actions, as opposed to civil judicial case conclusions (red above), which have been roughly consistent over the years. Civil judicial cases generally represent more serious actions that rely on the Justice Department and the courts for resolution.

Supplemental Environment Projects (SEPs) have been a disputed issue for a long time. These are environmental projects that violators agree to in addition to a penalty in civil case settlements. The government takes the SEP into account when setting penalty numbers. The government likes SEPs because they make it easier to reach a settlement. Violators like them because they reduce the severity of the civil penalty and allow the violator to put a positive public relations spin on an otherwise unhelpful event. The Justice Department prohibited the use of SEPs in judicial cases in 2020 arguing that they divert funds from the Treasury in violation of the Miscellaneous Receipts Act and require unlawful payments to non-victim third parties chosen by officials who lack budgetary authority. The incoming Biden Administration withdrew that directive in 2021. The SEP prohibition resulted in the significant dip in SEPs in FY 2022 (again showing that many of these statistics are lagging indicators). SEPs returned in FY 2023 and FY 2024, but not to the level that might be expected. It will be interesting to see the fate of SEPs in the new administration.

The number of criminal investigations opened has increased. EPA notes that the FY 2020 spike was “skewed” by COVID fraud cases. Whether that is an appropriate term where the cases involved unscrupulous individuals and companies falsely claiming that their products were effective against COVID (in violation of FIFRA) during a pandemic, it is true that they accounted for a higher number in FY 2020. A few points to make here:

  • These are investigations opened, but it is unclear what portion of them resulted in indictments. These are essentially the opposite of lagging indicators, where the result of the investigations is unknown.
  • The numbers are small in comparison to the number of civil cases. That is not a criticism—criminal enforcement should be reserved for the smaller number of actors who are lying, cheating, and stealing. These numbers also do not account for state-level criminal investigations. The point is that the trends in the graph seem less significant when one realizes that the difference between 200 investigations in FY 2024 and the 117 investigations in FY 2022 is only 83 investigations.
  • The numbers do not provide insight into the complexity of the investigations. The resources and effort required for multi-target complex investigations can easily surpass those necessary for relatively straightforward individual dumping cases (or COVID fraud cases).

 

Criminal Defendants Charged represents cases in midstream between investigation and resolution. It is likely that many of the 121 defendants charged in FY 2024 were among the 199 investigations opened in FY 2023 (which would mean that roughly 78—or nearly 40 percent—of those investigations did not lead to criminal indictments). These are judicial cases that rely on DOJ for prosecution. While it is true that FY 2024 saw the most defendants charged since 2019, the numbers involved here are fairly consistent back to 2017, and as with the number of investigations opened, it is difficult to know from the numbers alone how sophisticated the cases are. In addition to the increased funding explained above, EPA notes that it hired 18 new criminal investigators and anticipates that these numbers will increase in the future.

For more datapoints from and a more thorough discussion of EPA’s FY 2024 Enforcement and Compliance Results, see this expanded post.

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