Pollution Enforcement Implodes Under Florida's Scott

Basic enforcement of anti-pollution laws in Florida has nose-dived during the first full year of Governor Rick Scott's tenure, according to agency figures released today by Public Employees for Environmental Responsibility (PEER). Dramatic declines in the number of cases brought and amounts of fines levied across virtually all districts and all forms of pollution appear to reflect directives that state Department of Environmental Protection (DEP) staff should avoid pursuing enforcement if at all possible.

"These latest figures show significantly poorer performance in almost every major program in every district," stated Florida PEER Director Jerry Phillips, a former DEP enforcement attorney, who conducted the analysis. "Due to recent relaxations in pollution discharge permit standards, there is every reason to believe this downward trend will continue, if not accelerate." The DEP figures show that in 2011 -

• The total number of enforcement cases fell by more than a fourth (28%) and the DEP Office of General Counsel received the third lowest number of case reports in agency history;
• Pollution penalty assessments dipped by a similar proportion (29%) while penalties actually collected dropped by more than half (57%). The number of big fine cases (more than $100,000) also was cut by half; and
• Enforcement actions with compliance follow-up (long-form consent orders) plummeted nearly two-thirds (62%) from 2010. Other enforcement orders sank to levels not seen since the mid-90s.

These deep, consistent drops in enforcement seem to reflect a deliberate policy shift, rather than drift. In a November 19, 2011 memo from Jeff Littlejohn, the DEP second-in-command and Deputy Secretary for Regulatory Programs directs staff to refrain from taking enforcement action except as a last resort:

"Where noncompliance occurs despite your best efforts at education and outreach, your first consideration should be whether you can bring about a return to compliance without enforcement."

"There are several problems with this 'enforcement last' approach; First, it rolls the dice on environmental protection. Second, there is no compensation for public resource damages, so it becomes a back-door taxpayer subsidy to polluters," Phillips said, noting this 'compliance first' approach also entails that compliance be monitored, a dubious strategy given that declining penalty revenue reduces financial support for DEP programs, making monitoring even less feasible. "In fact, DEP has no idea whether they are actually achieving greater pollution compliance. To make matters worse, the Scott administration is taking a number of steps that make it even harder to track whether compliance is maintained over time."

The extent of these problems was underlined in a new audit report from the DEP Inspector General which found a breakdown in air pollution enforcement in the Southwest (Tampa) District so severe that it "may have damaged the reputation of the Department with the local regulated community and federal regulatory agency (EPA)."

PEER also has a pending legal complaint before EPA to disqualify DEP Secretary Herschel Vinyard from all clean water permitting decisions due to his prior industry ties violating federal conflict rules. "If regulated industries had a playbook for how to dismantle pollution controls, it could not have worked better than what has already taken place," Phillips concluded.