Welcome to the Owen Santarella Environmental Regulatory Blog where we will provide timely regulatory updates and discussion on pressing environmental issues. The focus for my inaugural blog are two issues fundamental to the protection of human health and the environment in the United States: (1) power generation in the United States and the environmental impacts from various energy sources; and (2) the significant reduction in inspections and enforcement activities by EPA under the Trump Administration during FY 2018.

Power Generation in the United States: A fascinating article by the Visual Capitalist entitled “Mapped: Every Power Plant in the United States” (https://www.visualcapitalist.com/mapped-every-power-plant-in-the-united-states/) clearly illustrates the dramatic evolution of power generation in the United States since 1950 often without regard to federal regulations. My experience has been that the bottom-line ultimately drives energy source choices made by public utilities. Of course, numerous other external factors have the potential to impact that bottom-line including federal, state and local regulations and subsidies as well as public opinion. Nevertheless, remember going forward that the energy generation mix has never been static in the United States … and probably never will be.

Significant Decline in EPA Enforcement Activity in FY 2018: EPA’s low enforcement numbers under President Trump have been getting lots of attention from Congress and the media again. A recent Environmental Integrity Project Report (http://www.environmentalintegrity.org/news/new-report-epa-enforcement-at-record-low-in-2018/) documents the precipitous drop in EPA inspections (i.e., EPA completed 10,612 inspections and evaluations the lowest number in almost two decades and only about 60 percent of the average annually since 2001 according to EIP) and civil enforcement by EPA and DOJ (i.e., EPA sent 123 civil pollution violation cases to DOJ for prosecution in FY 2018 - up slightly from 2017 but down 42 percent from the 211 average annually during the Obama Administration and less than half of the 304 average during the George W. Bush Administration according to EIP). Regulatory relief has its appeal but, in my opinion, EPA must present a credible enforcement force if EPA’s fundamental policy goal of ensuring that violators of environmental requirements do not receive an inappropriate and undue economic benefit over those who comply with the law. Forgive me if I sound didactic, I am a former EPA regional enforcement attorney who also served in EPA’s Legal Enforcement Policy Division as a law clerk way back when dinosaurs roamed the earth….

So, what does this all mean to the regulated public? First of all, I caution that EPA and the States are still bringing enforcement actions and nobody wants to be the example used by EPA to counter charges of lax enforcement. Secondly, as I discuss in the ENVIRONMENTAL REGULATORY BOOTCAMP, the federal statute of limitations for environmental civil enforcement actions is typically 5 years per 28 U.S.C. § 2462 and is subject to the discovery rule as well as potentially being tolled for continuing violations. I cannot forecast the future but as a History major I caution that history has a tendency to repeat itself. The environmental regulatory pendulum in the United States has been swinging back and forth rather violently since the 1980’s. In short, environmental violations that are not acted upon under this Administration may be seen as ripe for enforcement in the future. Finally, the specter of citizen suits to enforce alleged violations of federal environmental statutes looms large particularly for high-profile facilities. I, therefore, continue to counsel that assiduous compliance with environmental regulatory requirements remains the most prudent route.