News Section: Environment
DEP Enforcement Falls Sharply Under Scott's Reign
BRADENTON — Enforcement of anti-pollution laws in Florida has nose-dived during the first full year of Governor Rick Scott’s tenure, according to a report by Public Employees for Environmental Responsibility (PEER), a national alliance of local state and federal resource professionals committed to responsible management of America’s public resources.
The groups says that dramatic declines in the number of cases brought and amounts of fines levied across virtually every district and in all forms of pollution, appear to reflect directives that state Department of Environmental Protection (DEP) staff should avoid pursuing enforcement whenever 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
- 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.
PEER says that such drastic and consistent drops in enforcement would seem to reflect a deliberate policy shift, rather than a statistical blip and point to a November 19, 2011 memo from the DEP second-in-command and Deputy Secretary for Regulatory Programs Jeff Littlejohn, that directs staff to refrain from taking enforcement action except as a last resort:
The memo read: “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," Phillips said. "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,” 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).”
“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.
PEER also has a pending legal complaint before the EPA to disqualify DEP Secretary Herschel Vinyard from all clean water permitting decisions due to prior industry ties, which violate federal conflict rules. The group has earned notoriety previously for winning the biggest public employee whistleblower lawsuit in history by forcing the restoration of U.S. Park Police Chief Teresa Chambers, and helping to defeat an effort by Coca Cola to kill a proposed plastic bottle ban at Grand Canyon National Park.