Published on
the San Francisco Chronicle

Bush's EPA Pursues Fewer Criminal Cases

Civil lawsuits also decline; critics see other efforts flag

John Solomon / Juliet Eilperin

WASHINGTON - The Environmental Protection Agency's pursuit of criminal cases against polluters has dropped off sharply during the Bush administration, with the number of prosecutions, new investigations and total convictions all down by more than a third, according to Justice Department and EPA data.

The number of civil lawsuits filed against defendants who refuse to settle environmental cases was down nearly 70 percent between fiscal years 2002 and 2006, compared with a four-year period in the late 1990s, according to those same statistics.

Critics of the agency say its flagging efforts have emboldened polluters to flout U.S. environmental laws, threatening progress in cleaning the air, protecting wildlife, eliminating hazardous materials and countless other endeavors overseen by the EPA.

"You don't get cleanup, and you don't get deterrence," said Eric Schaeffer, who resigned as director of the EPA's Office of Civil Enforcement in 2002 to protest the administration's approach to enforcement and now heads the Environmental Integrity Project, a watchdog group. "I don't think this is a problem with agents in the field. They're capable of doing the work. They lack the political support they used to be able to count on, especially in the White House."

The slower pace of enforcement mirrors a decline in resources for pursuing environmental wrongdoing. The EPA now employs 172 investigators in its Criminal Investigation Division, below the minimum of 200 agents required by the 1990 Pollution Prosecution Act, signed by President George H.W. Bush.

The actual number of investigators available at any time is even smaller, agents said, because they sometimes are diverted to other duties such as service on EPA Administrator Stephen Johnson's eight-person security detail.

Johnson, President Bush's chief environmental regulator, foreshadowed a less confrontational approach toward enforcement when he served as the EPA's top deputy in late 2004. "The days of the guns and badges are over," Johnson told a group of farm producers in Georgia the day before Bush won re-election, according to a news account of the speech.

Administration officials said they are not ignoring the environment but are focusing on major cases that secure more convictions against bigger players.

"We have been on an unprecedented run of success in the enforcement arena," said Granta Nakayama, EPA assistant administrator for enforcement and compliance assurance. "These are major cases we are pursuing."

Nakayama said that in the past three fiscal years the EPA has cut between 890 million and 1.1 billion pounds of air pollution through enforcement.

He added that he hopes to boost the number of criminal investigators and said that over the past five years the agency has won convictions against 95 percent of the people indicted for environmental crimes.

Administration officials acknowledge taking a new approach to environmental enforcement by seeking more settlements and plea bargains that require pollution reductions through new equipment or participation in EPA compliance programs.

Justice Department spokesman Brian Roehrkasse said the department secured $13 billion in such corrective measures from polluters in 2005-06, up from about $4 billion in the final two years of the Clinton administration.

"Environmental prosecutions continue to be very important to the department," Roehrkasse said. Settlements and judgments that impose corrective measures "protect the nation's environment and safeguard the public's health and welfare," he said.

House Energy and Commerce Committee Chairman John Dingell, whose panel oversees environmental enforcement, disagrees. "Where once a polluter could expect criminal prosecution, there are now civil settlements. Where once there were criminal penalties, there are now taxpayer subsidies," said Dingell, D-Mich.

The environmental crimes unit at Justice Department headquarters in Washington has grown to a record 40 prosecutors. Last year, it secured near-record highs in years of confinement and criminal penalties, Roehrkasse said.

But environmental prosecutions by U.S. attorneys' offices have sharply dropped as prosecutors facing new pressures on issues such as terrorism and immigration take away resources for environmental prosecutions and try to divert cases to the main Justice Department, EPA agents said.

Prosecutors counter that the EPA has fewer agents and is bringing them fewer cases. "We're not turning away environmental crimes in order to prosecute other crimes. They are just not being presented in the first case," said Don DeGabrielle, the U.S. attorney in Houston.

EPA memos show that investigators also have encountered new obstacles to their long-standing practice of directly referring cases to federal or state prosecutors. A new policy distributed May 25 requires agents to seek prior approval from the head of their division and establishes new paperwork procedures. This has slowed agents' ability to make referrals, congressional investigators said.

The number of environmental prosecutions plummeted from 919 in 2001 to 584 last year, a 36 percent decline, according to Justice Department statistics collected by Syracuse University's Transactional Records Access Clearinghouse.

Those same Justice Department data also show that the number of people convicted for environmental crimes dropped from 738 in 2001 to 470 last year.

Similarly, the number of cases opened by EPA investigators fell 37 percent, from 482 in 2001 to 305 last year, according to data that the EPA provided to congressional investigators.

This article appeared on page A - 4 of the San Francisco Chronicle
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