Environmental Law

What does Obama Do for Enforcement?

By Walter James

What is the perspective of a Barack Obama administration on enforcement? 

Pre-election, Michael Gerrard, a partner at Arnold & Porter authored an article entitled "Politics and the Environment" in which he did an outstanding job of describing and comparing where John McCain and Barack Obama stand on environmental, energy, and resource issues.  That article was prepared without an evaluation of whether their particular positions have merit.  The article can be found at http://www.abanet.org/environ/pubs/nre/fall08/obama_mccain.html. 

Now that the election is over, how will the landscape change with an Obama administration?  Will the USEPA and the DOJ?s enforcement policies change?  The answer, of course, is both yes and no.  The change in administrations, however, will bring new priorities and initiatives to both civil and criminal enforcement.   

The anticipated changes at the upper echelons of government do not always translate into shifts in on-going enforcement initiatives.  The power to choose and pursue environmental enforcement rests largely with career staff and attorneys at the USEPA and DOJ.  The risk of public outcry curtails efforts to intervene in environmental enforcement actions by political appointees. 

Congressional efforts may also influence enforcement policies in the Obama administration.  The congressional control is now held by the Democrats.  Congress has directly intervened into the USEPA's enforcement decisions by mandating the hiring of additional enforcement officers and rejecting efforts to cut enforcement budgets (the USEPA is woefully below the statutory mandated levels of criminal investigators).  Additionally, with the recent GAO report on the accomplishments reported by the USEPA, there may be a stepped-up initiative to collect on assessed fines and penalties.  There are also five environmental cases before the US Supreme Court.

While there will be consistency with past environmental enforcement policies at the ground level, do not be surprised if you see an upswing in enforcement cases over the next four years. 

More later.

As always, feel free to contact me by e-mail with any questions at walter.james@jamespllc.com.

WDJiii

Full post as published by Environmental Crimes Blog on November 12, 2008 (boomark / email).