ensuring environmental compliance through inspection
TRANSCRIPT
The Right to Know and the Responsibility to Act: Ensuring Environmental
Compliance through Inspection, Enforcement and Citizen Science
By Paul Gallay, Esq.1
I. Abstract
Since 1988, control of the presidency and associated executive agencies has shifted between
America’s two major political parties four times. In each case, policies governing compliance with
environmental law have also shifted, with average levels of U.S. Environmental Protection Agency
(EPA) staffing, inspections and enforcement differing from one administration to the next. While
such changes between administrations are to be expected, statistics show a far more sudden and
precipitous decline in inspections and enforcement activities at EPA over the first two years of
Donald Trump’s presidency than in any previous presidential transition since 1988.
This paper examines how the extreme declines in EPA staffing, inspections and enforcement that
have occurred under President Trump, whose expressed desire is to eliminate EPA “in almost every
form,” correlate with significant increases in water and air pollution control permit violations. It
outlines the impact of Mr. Trump’s environmental policies on the public and argues for a return to
previously accepted norms of agency behavior.
Finally, this paper demonstrates how citizen science can drive increased commitment to
environmental enforcement, greater investment in wastewater treatment infrastructure, fewer
instances of significant non-compliance with clean water laws and a higher level of public health
and environmental quality.
II. The Extraordinary Nature of Recent Cuts to EPA Staffing, Inspections and
Enforcement
In 2011, on the eve of the 40th Anniversary of the Clean Water Act, President George H. W. Bush’s
EPA administrator, William K. Reilly, wrote:
If we narrow our vision of the Clean Water Act, if we buy into the misguided notion that reducing
protection of our waters will somehow ignite the economy, we will shortchange our health,
environment and economy.2
As we near the 50th Anniversary of the Clean Water Act, Administrator Reilly’s vision of a strong
EPA, committed to advancing both environmental and economic goals, has faded from view.
1 Paul Gallay has been an environmental lawyer since 1984. He has held positions in private practice, at
the Office of the New York State Attorney General and in the state’s Department of Environmental
Conservation, in the land conservation movement and most recently as president of Riverkeeper, New
York’s Clean Water Advocate. Paul is a graduate of Williams College and Columbia Law School and has
held several teaching positions including his current appointment with Columbia University’s
Undergraduate Program in Sustainable Development.
2 William K. Reilly, “Keep the Clean Water Act Strong,” The New York Times (November 29, 2011).
The Right to Know and the Responsibility to Act: Ensuring Environmental Compliance Through Inspection, Enforcement and Citizen Science. [ABA Section on Environment, Energy, and Resources,
March 2019]. Page 2
President Donald Trump’s agenda for EPA is to eliminate it “in almost every form,” and leave
behind only “tidbits.”3 President Trump’s desire to cut EPA into tidbits echoes in the proposal by
Myron Ebell, as co-chair of the president’s environmental transition team, to cut EPA staffing by
two-thirds,4 and in President Trump’s initial budget proposal, which sought a 31% reduction in
spending at EPA (no other agency was proposed by Trump for a cut so large) and a 25% drop in
total staffing.5
While congress did not go along with the extraordinary staffing cuts proposed by President Trump
in 2017,6 EPA staff is already 8% smaller than when he took office and more than 20% smaller
than it was under Administrator Reilly and his employer, President George H. W. Bush.7 The
largest recent cuts at EPA have been those at the Office of Compliance and Enforcement, which is
16% smaller than it was just two years ago.8
Not surprisingly, in an era of declining EPA staff under a President whose stated goal is to get rid
of the EPA “in almost every form”, the total number of compliance inspections by EPA has dropped
by half since 2010.9 Similarly, a wide range of EPA enforcement statistics, from total actions
taken to fines and penalties collected to the number of negotiated settlements, show extraordinary
declines under the Trump Administration.10 For example, in 2018, total penalties collected by
EPA dropped at least 55% compared with averages during the two decades before President Trump
came into office. 11
3 Brady Dennis, “EPA Head Defends White House’s Plan for Massive Cuts to his Agency,” The Washington
Post (June 15, 2017).
4 Joe Davidson, “Trump Transition Leader’s Goal is Two-thirds Cut in EPA Employees,” The Washington
Post (January 30, 2017).
5 “EPA Head Defends White House’s Plan for Massive Cuts to his Agency,” op cit. And, Juliet Eilperin,
Chris Mooney and Steven Mufson, “New EPA Documents Reveal Even Deeper Proposed Cuts to Staff and
Programs.” The Washington Post (March 31, 2017).
6 Ari Natter and Jennifer Dloughy, “EPA, Clean Energy Spared Trump's Ax in $1.1 Trillion Budget Deal,”
Bloomberg (May 1, 2017).
7 Brady Dennis, Juliet Eilperin and Andrew Ba Tran, “With a shrinking EPA, Trump delivers on his promise
to cut government,” The Washington Post (September 8, 2018).
8 Ibid.
9 Juliet Eilperin and Brady Dennis, “Under Trump, EPA inspections fall to a 10-year low,” The Washington
Post (February 8, 2019).
10 Juliet Eilperin and Brady Dennis, “Civil penalties for polluters dropped dramatically in Trump’s first two
years, analysis shows,” The Washington Post (January 24, 2019). See also, Marianne Sullivan, Chris Sellers,
Leif Fredrickson, Sarah Lamdan, “The EPA has backed off enforcement under Trump – here are the
numbers”. TheConversation.com. And, multiple authors, “A Sheep in the Closet - The Erosion of
Enforcement at the EPA,” Environmental Data & Governance Initiative at pages 26 – 30.
11 “Civil penalties for polluters dropped dramatically in Trump’s first two years, analysis shows,” The
Washington Post (January 24, 2019). Op cit.
The Right to Know and the Responsibility to Act: Ensuring Environmental Compliance Through Inspection, Enforcement and Citizen Science. [ABA Section on Environment, Energy, and Resources,
March 2019]. Page 3
EPA officials have argued that individual states and territories can pick up the slack left by these
steep cuts in the number of inspections and enforcement actions now undertaken by EPA.12
However, because of budget constraints brought on in part by declining levels of federal funding
for state enforcement programs, state agency staffing is in decline and so are state inspection
totals.13 The combined total number of state and federal inspections of large Clean Water Act
permit holders declined by 8% between Fiscal Year (FY) 2015 (4,149 total inspections) and
FY2018 (3,823 total inspections).14 The burden of current cuts to EPA inspection and enforcement
programs falls particularly hard on Americans living in states with lax environmental enforcement
programs, where EPA could, formerly, be counted on to act as the “enforcer of last resort.”
The recent significant drop in federal and state compliance inspections documented above will
almost certainly lead to increased pollution emissions, for several reasons. Firstly, when inspectors
find emissions violations at a particular facility, the facility operator will then generally reduce
those illegal emissions. For example, a 2010 study by researchers at Harvard University and the
University of California at Santa Barbara found that facility managers reduced air emissions by
fifteen percent, on average, following inspections to check for compliance with Clean Air Act
permits.15
Secondly, a robust inspection and enforcement program can also prevent violations at facilities
even before they are inspected, because facility owners who know that the risk of penalties is real
are more likely to eliminate problems before they are discovered during inspections. Such self-
correcting behavior is illustrated by the finding, in a 2005 study commissioned by EPA and the
University of California at Berkeley, that 63% of the companies examined took additional
compliance-related actions after learning that penalties had been imposed against other companies
for violations of environmental laws which they were also subject to, either because of fear of being
penalized themselves, concern about reputational risk or simply having been reminded to take
action by the other companies’ fines.16
Indeed, the recent drop in the number of Clean Water Act permit inspections cited above correlates
with a significant increase in major violations of that law over the past several years. Between
FY2015 and FY2018 - a period in which, as shown above, inspections of large water pollution
discharge permit holders dropped 8% and the EPA’s Office of Compliance and Enforcement saw
a disproportionate 16% cut in staffing levels - serious incidents of water pollution increased by
12 “Irreplaceable: Why States Can’t and Won’t Make Up for Inadequate Federal Enforcement of
Environmental Laws,” Institute for Policy Integrity New York University School of Law (June 2017).
13 Ibid at page 3. See also, Marie Cusick, “EPA cuts would leave states with more work, less money,” NPR
(Apr. 7, 2017).
14 Environmental Protection Agency, “Enforcement and Compliance History Online: State Water
Dashboard.“ See chart: “Inspections - Facilities Inspected by State or EPA – Majors (All)”
15 Rema Nadeem Hanna and Paulina Oliva (2010) “The Impact of Inspections on Plant-Level Air Emissions,”
The B.E. Journal of Economic Analysis & Policy: Vol. 10: Issue 1 (Contributions), Article 19. See page 21.
16 Dorothy Thornton, Neil A. Gunningham and Robert A. Kagan “General Deterrence and Corporate
Environmental Behavior,” 27 Law & Pol'y 262, at 282-283 (Berkeley Law Scholarship Repository, 2005).
The Right to Know and the Responsibility to Act: Ensuring Environmental Compliance Through Inspection, Enforcement and Citizen Science. [ABA Section on Environment, Energy, and Resources,
March 2019]. Page 4
10% (rising from 1,507 in FY2015 to 1,659 in FY2018).17 Similarly, inspections at facilities
regulated under the Clean Air Act dropped between FY2015 and FY2018 (falling from 14,421 to
14,128)18 correlating with a striking 28% increase in high profile violations at such facilities during
the same time period (rising from 362 to 462).19
These increases in significant non-compliance with clean water and air laws were not only
contemporaneous with significant cuts in inspection programs; they also took place simultaneously
with previously cited declines in enforcement actions taken and penalties collected.20 It is
particularly concerning that criminal referrals by EPA, which are designed to safeguard
communities from the most serious and intentional violations of anti-pollution statutes, dropped by
a over a third, from roughly 250 in FY2015 to 166 in FY2018. 21
And, while EPA leadership has argued that informal compliance efforts will make up for the
decrease in their enforcement numbers, such claims are belied by the fact that overall spending to
come into compliance with federal environmental laws efforts in FY2018 was only $5.6 billion -
28% below the $7.8 billion in average annual compliance spending over the two decades before
President Trump took office. 22
These stark declines in EPA staffing, inspection, enforcement and compliance spending, and the
correlative increase in significant water pollution incidents and other environmental violations
since President Trump took office, all have extremely troubling implications for the health and
welfare of America’s communities. Whether due to the abandonment of efforts to control methane
flaring in North Dakota,23 the loosening of selenium and sulfur dioxide restrictions at power plants
17 Environmental Protection Agency, “Enforcement and Compliance History Online: State Water
Dashboard.“ See chart: “Violations - Facilities in Significant Non-compliance - Majors (Individual).”
18 Environmental Protection Agency, “Enforcement and Compliance History Online: State Air Dashboard.”
See chart: “Compliance Evaluations - Facilities Evaluated by State or EPA”.
19 Environmental Protection Agency, “Enforcement and Compliance History Online: State Air Dashboard.”
See chart: “High Profile Violations”.
20 “The EPA has backed off enforcement under Trump – here are the numbers.” Op cit.
TheConversation.com. See also, “A Sheep In the Closet - The Erosion of Enforcement at the EPA.” Op cit.
at pages 26 – 30.
21 Umair Irfan, “How Trump’s EPA is letting environmental criminals off the hook, in one chart,” Vox
(January 18, 2019).
22 “Civil penalties for polluters dropped dramatically in Trump’s first two years, analysis shows,” The
Washington Post (January 24, 2019). Op cit.
23 Eric Lipton, “Profiting At A Cost,” The New York Times (December 27, 2018).
The Right to Know and the Responsibility to Act: Ensuring Environmental Compliance Through Inspection, Enforcement and Citizen Science. [ABA Section on Environment, Energy, and Resources,
March 2019]. Page 5
in West Virginia24 and Texas,25 or the failure to regulate chlorpyrifos in California farm fields,26
countless Americans are less safe due to the increases in pollution associated with President
Trump’s desire to eliminate EPA “in almost every form”.27
While most if not all Americans are affected by the increases in major water and air pollution
incidents under the Trump administration, such ill effects are likely to fall most seriously on people
of color. Statistics show that race is far greater a determinant of environmental harm than income,
with studies by Dr. Robert Bullard demonstrating that “poor whites do better than middle-class
blacks,” when it comes to exposure to pollution,28 because of factors including inequitable housing
policies and barriers to full participation in proceedings related to the construction and operation
of environmentally-dangerous land uses.29 It bears noting, in this context, that one of the Trump
administration’s earliest proposals to reorganize EPA would have eliminated the agency’s Office
of Environmental Justice.30
Those Americans who are at greater risk because of President Trump’s campaign to decimate the
EPA may have some unexpected company in the corporate world. Law-abiding business are also
among those harmed when enforcement and compliance inspections are cut. Companies willing to
go to the expense of ensuring their operations meet the Clean Water Act and other environmental
regulations are put at a competitive disadvantage relative to those businesses who are more willing
to cut regulatory corners. When “specific” deterrence of environmental harms wanes, as it must
when more than half the inspections undertaken just a decade ago are no longer being performed,
“general” deterrence is very likely to drop as well, because companies come to realize that there is
far less risk of punishment for environmental law violations than there had been in years passed
(especially given that penalties for an increasing number of violations are now proposed for waiver
or reduction if they are voluntarily “self-reported”31).
24 Steve Eder and Eric Lipton, “Sidestepping Protections,” The New York Times (December 27, 2018).
25 Eric Lipton, “Easing a ‘War on Coal’,” The New York Times (December 27, 2018).
26 John Branch and Eric Lipton, “Dismissing Science,” The New York Times (December 27, 2018).
27 “EPA Head Defends White House’s Plan for Massive Cuts to his Agency,” The Washington Post (June
15, 2017). Op cit.
28 Oliver Milman, “A civil rights 'emergency': justice, clean air and water in the age of Trump,” The Guardian
(November 20, 2017).
29 Ibid, see also Bullard, R.D. “Race and Environmental Justice in the United States.” Yale Journal of
International Law Vol. 18, No. 1 (Winter, 1993): 319-335 at 334. And, Bullard, Robert D., Paul Mohai,
Robin Saha, and Beverly Wright, “Toxic Wastes and Race at Twenty: Why Race Still Matters After All of
These Years,” Lewis & Clark Environmental LawJournal 38 (2): 2008 pp. 371-411 at 406 to 408.
30 “A civil rights 'emergency': justice, clean air and water in the age of Trump,” The Guardian (November
20, 2017). Op cit.
31 Mike Soraghan, “Trump's EPA turns to less punitive responses to pollution,” Energy and Environment
News (June 11, 2018).
The Right to Know and the Responsibility to Act: Ensuring Environmental Compliance Through Inspection, Enforcement and Citizen Science. [ABA Section on Environment, Energy, and Resources,
March 2019]. Page 6
By contrast, any business entity that continues to “play by the rules,” and spends more on pollution
control than other, less compliant companies, runs the risk of losing market share or becoming
uncompetitive. At some point, especially in publicly traded companies, the desire to be a good
corporate citizen must yield to an understanding that EPA, by cutting inspections and enforcement,
is signaling that compliance with environmental laws is no longer a high priority.
In sum, the statistics cited above demonstrate that President Donald Trump has successfully
undermined the effectiveness of EPA by cutting the agency’s staff, inspections and enforcement
capabilities beyond long-followed bi-partisan norms established under Presidents George H. W.
Bush, Bill Clinton, George W. Bush and Barack Obama. As a consequence of these rogue attitudes,
we are suffering through demonstrably higher levels of significant non-compliance with major
environmental statutes like the Clean Water Act. The rule of environmental law in the US has
suffered a massive blow due to President Trump’s aberrant interest in eliminating EPA “in almost
every form.”32
III. The Role of Citizen Science in Ensuring Compliance with Environmental Law
Understandably, concern over recent extraordinary declines in enforcement, staffing and
inspections at EPA is increasingly widespread, especially as the impacts of these changes — and
the potential impacts of the nearly 80 instances in which the Trump administration seeks to roll
back environmental regulations33 — become more widely known.
Some of this concern may be due to the widely held conviction, elegantly espoused by former EPA
Administrator Reilly in the remarks cited in the opening paragraph of this paper, that a clean, safe
environment will foster a strong economy. Such a worldview suggests that environmental
inspections and enforcement should not be cut back, in an effort to boost the economy, and that
enforcement of our environmental laws should not be subject to large, ideologically driven shifts
upward or downward.
Those who oppose the extraordinary cuts made to EPA under President Trump might also point to
the relative stability of criminal referral numbers between 2008 and 2012, which are the years
linking the George W. Bush Administration and the first Obama administration,34 before
congressionally-driven budget cuts35 began to hobble EPA staff capability. Although current EPA
officials claim they are still going to use “all the tools” in their regulatory toolkit to achieve
32 “EPA Head Defends White House’s Plan for Massive Cuts to his Agency,” Washington Post (June 15,
2017). Op Cit.
33 “Environmental Protections on the Chopping Block,” The Environmental Integrity Project (accessed
February 20, 2019), citing Nadja Popovich, Livia Albeck-Ripka and Kendra Pierre-Louis, “78
Environmental Rules on the Way Out Under Trump,” The New York Times (Dec. 28, 2018).
34 “How Trump’s EPA is letting environmental criminals off the hook, in one chart,” Vox (January 18, 2019).
Op cit.
35 David Rogers, “GOP challenges Obama on EPA and fire funding,” Politico (June 9, 2015).
The Right to Know and the Responsibility to Act: Ensuring Environmental Compliance Through Inspection, Enforcement and Citizen Science. [ABA Section on Environment, Energy, and Resources,
March 2019]. Page 7
compliance, 36 such claims are undercut by the previously cited reductions in EPA staff (especially
in the Office of Compliance and Enforcement), inspections and enforcement under President
Trump. In reality, far too many of EPA’s compliance tools are now merely sitting in their toolkits,
because there isn’t enough staff or political will,37 to put them into play.
History suggests that inspections and enforcement case numbers will eventually begin to climb
again, especially given the aberrant nature of Trump-era EPA compliance and enforcement
policies. Still, the damage caused by current enforcement and compliance cuts at EPA begs the
question: can anything be done, while Trump is still president, to reduce the ill effects of his efforts
to reduce the EPA to “tidbits”? One potential answer to this urgent question lies in an increased
reliance on citizen science and public disclosure of pollution events, both of which have driven a
significant expansion of enforcement of clean water laws and funding to improve water quality in
the state of New York.
New York prides itself on a commitment to environmental protection and has taken forthright steps,
in recent years, to protect air and water through agency decisions like the one banning high-volume
“hydrofracking” as a technique for extracting oil and gas from subsurface shale formations.38
Nevertheless, New York has hardly been immune to declines in environmental staffing, inspections
and enforcement. In 2008, New York’s Department of Environmental Conservation (“DEC”)
employed 278 staffers in its Division of Water. In 2015, that number had declined to 234, according
to information reported by DEC.39 The decline looks even steeper to the author of this paper, who
began his own ten-year stint as a DEC enforcement attorney in 1990, when the department’s water
division employed 339 staff members.40
In part due to these staff reductions, achieving Clean Water Act compliance in New York remains
a major challenge. For example, significant levels of bacteriological pollution have been
documented since 2006 through a comprehensive program of water quality testing on the Hudson
36 Valerie Volcovici, Richard Valdmanis and Leslie Adler, “EPA fines for polluters at lowest level in two
decades, data shows,” Reuters (January 24, 2019). See also, “Under Trump, EPA inspections fall to a 10-
year low”. Op cit.
37 “A Sheep In the Closet - The Erosion of Enforcement at the EPA,” op cit. The section of the article running
from pages 49 to 52, entitled “Industry Influence, Political Obstruction, and a Chilling Effect on Staff”
describes case after case in which EPA staff report that they feel deterred from pursuing a robust program of
law enforcement.
38 New York State’s decision not to allow high-volume “hydrofracking” is contained in “Findings Statement:
Regulatory Program for Horizontal Drilling and High-Volume Hydraulic Fracturing to Develop the
Marcellus Shale and Other Low-Permeability Gas Reservoirs,” New York State Department of
Environmental Conservation (June 2015). See also Neela Bannerjee, “Why Did NY Ban Fracking? The
Official Report is Now Public,” Inside Climate News. May 15, 2015.
39 DEC Freedom of Information Law response.
40 Ibid.
The Right to Know and the Responsibility to Act: Ensuring Environmental Compliance Through Inspection, Enforcement and Citizen Science. [ABA Section on Environment, Energy, and Resources,
March 2019]. Page 8
River41 and its tributaries42 involving over 180 citizen science volunteers and staff members at the
non-profit organization Riverkeeper.
Riverkeeper’s water quality testing reveals that bacteria levels in over 20 percent of Hudson River
samples exceed federal safe swimming guidelines.43 After it rains, the number of exceedances
triples.44 Not only do communities from Poughkeepsie to the Adirondacks drink water from the
Hudson, tens of thousands of New Yorkers swim, fish and boat on the river, with the assumption
that government is taking the necessary steps to keep the water clean.
In New York, citizen science is triggering more robust action by government to assure that rivers
are clean and drinking water is safe. The increasingly voluminous body of bacteria testing results
compiled by Riverkeeper and its citizen science volunteer partners has driven a growing awareness
of how badly our waters remain contaminated. This, in turn, helped lead New York State to enact
a comprehensive “Sewage Pollution Right to Know Act” in 2012, to assure public access to critical
information about water treatment plant failures and storm-related contaminant discharges into the
waters where New Yorkers swim, boat and fish.45
The 2012 Sewage Pollution Right to Know Act requires that operators of sewage treatment plants
notify state health and environmental agencies - and the public - of the location, amount and likely
duration of any discharge that threatens public health, as well as what is being done to abate such
a discharge, within four hours of its discovery.46 Such notification is automatically provided to
members of the public who sign up for the email or text-based NY ALERT system,47 which sends
each pollution report to subscriber inboxes or cell phones in the affected region at practically the
same time that report is sent to regulators.
In 2017, thanks to the Sewage Pollution Right to Know Act, New Yorkers received nearly 2,400
pollution alerts involving 175 different treatment facilities or collection systems and 220
41 Riverkeeper.org, Hudson River Estuary Data. Per footnote 1, the author has been President of
Riverkeeper since 2010.
42 Riverkeeper.org, Tributary and Waterfront Data.
43 Dan Shapley, “How’s The Water? Hudson River Water Quality and Water Infrastructure” (Fall 2017). See
findings box at page 1.
44 Dan Shapley, “How’s the Water: 2015. Fecal Contamination in the Hudson River and its Tributaries,” (Fall
2015). See findings box at page 7.
45 New York State Assembly, Summary and Text, Sewage Pollution Right to Know Act (June 2012) at
Section 2. See also, “Riverkeeper Celebrates Governor’s Signing of Sewage Right to Know Act,” (August 9,
2012).
46 New York State Department of Environmental Conservation, “SPDES Compliance and Enforcement
Annual Report - SFY 2016/17,” Appendix B, at page 41 (October 1, 2017).
47 New York State Emergency Notification System.
The Right to Know and the Responsibility to Act: Ensuring Environmental Compliance Through Inspection, Enforcement and Citizen Science. [ABA Section on Environment, Energy, and Resources,
March 2019]. Page 9
waterbodies.48 According to DEC, many of these discharges relate to permit violations that will
be addressed by enforcement through negotiated “Orders on Consent” compelling the permit-
holding municipality “to identify overflow discharge locations and make substantial treatment plant
and collection system improvements to eliminate future discharge events.”49
With the public clamoring for action in the face of nearly 2,400 pollution reports affecting 220
different waterways, not only did state enforcement efforts increase,50 so did funding for water
supply and wastewater treatment infrastructure improvements. In 2017, for example, New York’s
Governor Cuomo and legislative leaders from both parties agreed to provide the unprecedented
sum of $2.5 billion in state grants, over five years, one billion dollars of which will help pay for
wastewater treatment plant upgrades needed to satisfy state enforcement orders.51 This new
spending will also solve a host of other water pollution problems stemming from aging drinking
water treatment plants, leaking septic systems, old landfills, lead in water supply lines,
overburdened stormwater systems and the state’s expanding dairy industry.
Just as importantly, in 2017, New York State enacted an “Emerging Contaminants Protection Act”,
as a companion to the previously mentioned $2.5 billion grant program. As a result, the Department
of Health will soon require virtually all of NY’s public drinking water supplies to test for a broad
suite of previously unregulated chemical pollutants, the health impacts of which are only now
becoming known.52 This new testing program will allow state officials to identify and deal with the
many hidden drinking water contamination “hotspots” that experts are now warning about and,
perhaps, restore confidence in the safety of our water supplies in the wake of major drinking water
contamination episodes like those involving PFOS and PFOA in the City of Newburgh53 and the
Village of Hoosick Falls.54
As 2019 began, New York continues to implement measures to improve the way it assesses,
reports, enforces and invests, in order to reduce water pollution. For example, in January, Governor
Andrew M. Cuomo proposed a FY 2019-2020 budget that aims to double state spending on water
infrastructure improvements to $5 billion over ten years. The Department of Environmental
48 SPDES Compliance and Enforcement Annual Report - SFY 2016/17, op cit, Appendix B, at page 43.
49 Ibid.
50 The New York State Department of Environmental Conservation reports that the number of water pollution
enforcement orders it completed went up from an average of 150 in 2013 and 2014 to an average of 197 in
2015 and 2016. See SPDES Compliance and Enforcement Annual Report - SFY 2016/17, op cit, Appendix
C, at page 50.
51 Gerald B. Silverman, ”New York Pours $2.5 Billion into Clean Water Programs,“ Bloomberg (April 5,
2017).
52 See, New York State Emerging Contaminants Protection Act, Section 1, amending the Public Health Law
of the State of New York to add a new section 1112.
53 Dan Shapley, “NYS commits to blood testing in Newburgh,” Riverkeeper website (October 27, 2016).
54 Statement, “Hoosick Falls blood test results show need for similar tests in Newburgh,” Riverkeeper website
(August 5, 2016).
The Right to Know and the Responsibility to Act: Ensuring Environmental Compliance Through Inspection, Enforcement and Citizen Science. [ABA Section on Environment, Energy, and Resources,
March 2019]. Page 10
Conservation has created a new “drinking water source protection program” that will provide
funding, in its first year, for 30 cities, towns and villages to develop contaminant trackdown and
reduction programs to improve potable water supplies.55 The State’s Drinking Water Quality
Council has also called for maximum contaminant levels of 10 parts per trillion for PFOS and
PFOA. These limits, once adopted by the state Health Department, would be the strictest in the
nation.56
Together, these enactments and proposals can reasonably be said to make New York a leader among
states in enforcing clean water laws, improving water infrastructure, monitoring drinking water
safety and protecting public water supplies at their source. New York’s approach is one that
accurately reflects the principle of “using all the tools in your toolkit”: it involves a multi-faceted
program of inspection, enforcement, compliance assistance and investment, supported and spurred
on by citizen science and broad public disclosure of water pollution incidents, all helping to deliver
cleaner rivers and safer drinking water.
III. Conclusion
In 1972, the Clean Water Act promised every American drinkable, swimmable, fishable water
within ten years. Now, nearly 50 years later, nearly half our rivers aren’t safe for recreation57 and
tens of millions of us lack safe water to drink.58
Without a robust new federal commitment to environmental inspection, law enforcement and
infrastructure investment, coupled with citizen action and public disclosure of pollution incidents,
access to the benefits of the Clean Water Act and other bedrock environmental laws will become
harder to achieve -- and easier to lose -- for millions of Americans.
What we must do, in order to provide healthier rivers, safer drinking water and a cleaner
environment for all Americans, is to inspect, report, enforce and invest in compliance with
environmental law. What we must not do, if we aspire to a cleaner, safer environment, is to allow
continuation of the extraordinary declines in EPA staffing, inspections and law enforcement put in
place by the Trump Administration.
55 Allison Dunne, “NYS Launches Program to Help Protect Drinking Water Sources,” WAMC (January 8,
2019).
56 Nick Niedzwiadek and Amanda Eisenberg, “Drinking water contaminant recommendations arrive,”
Politico (December 19, 2018) and Dan Shapley, NYS Drinking Water Quality Council recommends limits
on PFOA and PFOS, Riverkeeper (December 20, 2018).
57 “Water Quality Assessment and TMDL Information: National Summary of State Information,” EPA.
Retrieved 2017-03-01. 44% of our recreational waters are listed in this EPA report as impaired for one or
more pollutant.
58 “63 Million Americans exposed to unsafe drinking water,” USA Today (August 15, 2017). See also Brad
Plumer and Nadja Popovich, “Here Are the Places that Struggle to Meet the Rules on Safe Drinking
Water,” The New York Times (February 12, 2019.
The Right to Know and the Responsibility to Act: Ensuring Environmental Compliance Through Inspection, Enforcement and Citizen Science. [ABA Section on Environment, Energy, and Resources,
March 2019]. Page 11
REFERENCES
In order of citation:
William K. Reilly, “Keep the Clean Water Act Strong,” The New York Times (November 29,
2011).
Brady Dennis, “EPA Head Defends White House’s Plan for Massive Cuts to his Agency,” The
Washington Post (June 15, 2017).
Joe Davidson, “Trump Transition Leader’s Goal is Two-thirds Cut in EPA Employees,” The
Washington Post (January 30, 2017).
Juliet Eilperin, Chris Mooney and Steven Mufson, “New EPA Documents Reveal Even Deeper
Proposed Cuts to Staff and Programs.” The Washington Post (March 31, 2017).
Ari Natter and Jennifer Dloughy, “EPA, Clean Energy Spared Trump's Ax in $1.1 Trillion Budget
Deal,” Bloomberg (May 1, 2017).
Brady Dennis, Juliet Eilperin and Andrew Ba Tran, “With a shrinking EPA, Trump delivers on his
promise to cut government,” The Washington Post (September 8, 2018).
Juliet Eilperin and Brady Dennis, “Under Trump, EPA inspections fall to a 10-year low,” The
Washington Post (February 8, 2019).
Juliet Eilperin and Brady Dennis, “Civil penalties for polluters dropped dramatically in Trump’s
first two years, analysis shows,” The Washington Post (January 24, 2019).
Marianne Sullivan, Chris Sellers, Leif Fredrickson, Sarah Lamdan, The EPA has backed off
enforcement under Trump – here are the numbers” TheConversation.com.
Multiple authors, “A Sheep In the Closet - The Erosion of Enforcement at the EPA,” Environmental
Data & Governance Initiative at pages 26 – 30.
“Irreplaceable: Why States Can’t and Won’t Make Up for Inadequate Federal Enforcement of
Environmental Laws,” Institute for Policy Integrity New York University School of Law (June
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