Alerts about enforcement trends during the Trump administration identified ongoing budget constraints that reduced the number of EPA enforcement cases. Indeed, this trend began during the Obama administration and is largely dependent on funding, not on the party of the administration.  However, the Trump EPA did not appear to regret the decrease in enforcement matters initiated by EPA. Rather, the Trump EPA preferred enforcement stories over statistics.

With budget constraints continuing and little chance for increased resources, the Biden EPA will not have a significant increase in new enforcement matters initiated by EPA.  However, the Biden EPA will try to characterize its enforcement efforts in line with its stated priorities, especially environmental justice initiatives and assistance to under-served communities.

Do Not be a Story
Facilities operating near communities that may be characterized as “under-served” should be especially vigilant to avoid significant noncompliance that could result in enforcement.  Expect harsher enforcement if noncompliance might be construed as impacting the under-served community.

If You Must Be a Story, Be a Good One
Facilities that find themselves in an enforcement situation with an environmental justice component should take the initiative in proposing settlements that quickly bring the facility into compliance and provide assistance to the under-served community, perhaps through a supplemental environmental project (SEP).  They should contact community leaders to identify SEPs that will have community support.  While the Trump administration was openly antagonistic to SEPs, the Biden administration supports them.  It will be easier to settle enforcement cases when the result includes a SEP that benefits an under-served community.