Environmental enforcement in Maryland has fallen off considerably in recent years, according to new data released this week, prompting activists to voice concern about “sharp downward trends” in the number of pollution cases taken to court.
In a letter Thursday to state Environment Secretary Ben Grumbles and Attorney General Brian Frosh, representatives of 11 environmental groups said state regulators are referring fewer infractions for legal action and levying smaller fines on average, even though lawmakers have authorized them to stiffen penalties.
Drawing on Maryland Department of Environment data obtained through a Public Information Act request, the groups said that from March 2015 through February of this year — the first year of Gov. Larry Hogan’s administration — there has been an 18 percent decline in cases that the MDE referred to the attorney general’s office.
“We urge you to consider whether existing enforcement policies and resources are sufficient to protect our citizens and environment and to take appropriate actions to correct any deficiencies,” the letter concludes. It was drafted by the Center for Progressive Reform, a Washington-based think tank, and signed by 10 other groups, including the Chesapeake Bay Foundation, the Environmental Integrity Project, Maryland League of Conservation Voters and several waterkeepers.
Hogan, a Republican, campaigned on a pledge to make Maryland more business-friendly. But enforcement actions for environmental violations had been slumping even before Hogan took office, the groups note. There was a 35 percent overall drop in cases referred to the attorney general during the previous two years, they said. That period includes the final months of Hogan’s Democratic predecessor, former Gov. Martin O’Malley, who was widely praised by environmentalists.
Since 2013, air pollution cases referred to the attorney general’s office for legal action have declined by more than 50 percent, the groups’ letter details. Lead paint violation cases dropped by 46 percent, it adds, and water pollution cases fell by 27 percent.
Meanwhile, the groups say, the share of violators getting “compliance assistance” — essentially a warning — rather than a violation notice has more than doubled over the last six years.
MDE spokesman Jay Apperson said officials are reviewing the letter, but he released a statement from the secretary calling the agency’s enforcement approach “balanced and common sense.”
“The Department of the Environment works in collaboration with facilities to ensure they are in compliance with all requirements,” Grumbles said, “but we will go after polluters and impose financial penalties when needed.”
Though insisting that the MDE still goes after polluters, Grumbles has previously acknowledged placing increased emphasis on assisting businesses with meeting environmental regulations.
“I don’t know how anyone can argue the point that if you’re focused on environmental success over the long term, you should be building bridges and bringing regulated entities into compliance,” he told the Bay Journal earlier this year.
The MDE spokesman said that the majority of the department’s enforcement and compliance activities, in fact, involve working with permit holders to correct minor deficiencies without issuing citations or levying fines.
The environmental groups say they don’t dispute the need to help polluters clean up. But they say failing to penalize violations gives businesses an economic incentive to ignore regulations, and a competitive edge over those firms that do invest in pollution controls.
“The average person gets no break,” said Rena Steinzor, a scholar at the Center for Progressive Reform and a University of Maryland law professor. “It’s divided justice – one for the average guy and one for business.”
Frosh said he and Grumbles have a good working relationship, but “a difference of philosophy” about dealing with environmental violators.
“I know he firmly believes in compliance assistance. I’d like to be doing more enforcement,” Frosh said, “but it’s their call. They refer to our office the cases they choose to refer.”
Apperson, the MDE spokesman, noted that the Hogan administration is working with the attorney general’s office on “significant cost recovery efforts” against Volkswagen for disabling emission controls on its vehicles and against petroleum companies for selling gasoline with an additive, MTBE, that’s caused widespread contamination of groundwater.
In an interview earlier this year with the Bay Journal, Frosh had said his office was getting fewer cases referred by the department for legal action, though he offered no figures at the time. He said that budget and staff cuts have eroded the state’s ability to catch polluters and hold them accountable.
The number of MDE water inspectors has been cut by one-third since 2000, even though the overall state budget has grown by more than 80 percent, the environmental groups note in the letter.
But even with fewer cases being referred for legal action, the attorney general’s office hasn’t been able to get to them all promptly. The office has had a large backlog of pending cases for years, which remained at around 80 or 90 cases earlier this year, according to Frosh. He attributed the backlog to inadequate staff in his office as well, and said the cases awaiting action involve the least serious violations
The MDE does has authority to levy some fines without having to go to court. And in 2014, Maryland’s General Assembly voted overwhelmingly to double the maximum administrative penalties for water pollution violations. But based on data provided by MDE, the groups’ letter notes, the penalties collected since then for illegal discharges have actually declined, both overall and on average.
The Environmental Protection Agency also has faulted Maryland for not being tougher on polluters, the groups’ letter points out. In a 2011 review of the state’s enforcement efforts, the EPA said that the MDE failed to levy penalties steep enough to deprive violators of the economic benefits of not controlling their pollution. And in checking on major facilities that were fined by the MDE, the EPA found that one-third had remained in noncompliance, prompting federal regulators to recommend imposing steeper automatic fines for repeat offenders.
“It seems pretty clear … that enforcement is on a long-term decline,” said Evan Isaacson, an analyst at the Center for Progressive Reform who obtained the MDE case data. “Yet when policy makers are looking for the most cost effective away to restore the (Chesapeake) Bay, they should make sure people are held accountable,” he added, for complying with existing anti-pollution laws and regulations