Top Environment Enforcement Cop Aims to Meet the Climate Moment

The EPA is going to steer dramatically more resources toward cracking down on methane emissions and the illegal importation of banned refrigerants, according to the agency’s top law enforcer.

The effort is part of a bid to make climate change the Environmental Protection Agency’s signature enforcement priority. Included in the plan are more inspections, more administrative penalty actions, more referrals to the Justice Department, and more requests that the department bring criminal cases against violators, David Uhlmann, head of the agency’s Office of Enforcement and Compliance Assurance, said in an interview.

“If we didn’t call climate our top national enforcement and compliance initiative, we would miss this moment, and I was not going to allow that to happen,” said Uhlmann, who was confirmed for his position in July, more than two years after he was nominated by President Joe Biden.

Another part of the enforcement office’s strategy is simply to put the regulated community on notice that climate change is now the EPA’s top enforcement priority, according to Uhlmann.

“When we call something an initiative, we lift it up among all of our enforcement activities,” he said. “We emphasize it in our messaging, and in our priority setting, we seek to obtain additional resources to allow us to do it—all of which gives us a much greater ability to address whatever the issue is than we would if we just have it reserved for our core enforcement programs.”

David Uhlmann, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance

Photo Credit: Environmental Protection Agency

Enforcement will also be driven by the EPA’s 10 regional offices, which are required to devote 20% of their resources toward the enforcement targets listed in the agency’s four-year national plan, Uhlmann said.

The latest plan, issued last week, included climate change enforcement for the first time. The EPA said it will focus especially on methane emissions from oil and gas facilities; methane emissions from landfills; and the use, importation, and production of hydrofluorocarbons (HFCs).

Crackdown on Smugglers

The EPA chose to focus on oil and gas facilities and landfills because they’re among the nation’s biggest sources of methane emissions, Uhlmann said.

The oil and gas sector is one of the largest sources of methane emissions, a potent planet-warming gas that has 25 times the global warming potential of carbon dioxide.

HFCs are being phased out of the global economy under the 2016 Kigali Amendment to the Montreal Protocol, but Uhlmann said the EPA has evidence that the planet-warming chemicals are still being illegally smuggled into the country. HFCs, commonly used in refrigerants, have vastly worse global warming potential than carbon.

To catch illegal importers, Uhlmann said the EPA will use the same playbook it used when chlorofluorocarbons were phased out in the 1990s and a “massive black market” for freon emerged. Uhlmann worked at the Justice Department at the time.

“We’re going to be very aggressive at the borders, trying to intercept illegal importation,” he said. “We’re also going to be very vigorous in our efforts to detect unlawful sales within the country.” The new effort will be further boosted by technological tools that didn’t exist during the days of the CFC phase-down, Uhlmann said.

Broadly, the office’s climate change enforcement push will be boosted by a proposed EPA rule to update greenhouse gas emissions reporting for the oil and gas sector, as well as the 2020 American Innovation and Manufacturing Act, which directs the agency to cut the production and consumption of HFCs by 85% by 2035, according to Stan Meiburg, a former EPA acting deputy administrator.

The American Petroleum Institute said it too wants to cut methane emissions, and that average emissions intensity has fallen by nearly 66% across all seven major energy producing regions from 2011 to 2021.

Mario Loyola, senior fellow at the Heritage Foundation, said he has no issue with tough EPA enforcement, as long as it’s impartial and effective.

“The problem arises when EPA uses the threat of catastrophic financial penalties to force disfavored sectors of industry to reorganize or shut down,” said Loyola, also a professor at Florida International University. “Luckily, federal courts have been increasingly willing to enforce the statutory and constitutional limits on EPA’s power and will be watching closely.”

Coal Ash and PFAS

Another first-time addition to the EPA’s list of enforcement priorities is the protection of communities from coal ash contamination. Some 300 regulated coal combustion residual facilities dot the nation, consisting of about 775 coal ash units, according to the agency.

“We need to make sure going forward that the communities that kept the lights on for generations get the support they need as we transition away from an economy fueled largely by coal,” Uhlmann said.

He also stressed that, in focusing on coal ash pollution, the enforcement office isn’t trying to promote renewable energy sources or speed the nation’s transition away from coal.

One possible reason the EPA is focusing on coal ash is that enforcement in that area wasn’t a priority under former President Donald Trump, meaning the problem went unaddressed for years, said Meiburg, now executive director at Wake Forest University’s Center for Energy, Environment, and Sustainability. The EPA proposed new rules for coal ash management at inactive power plants in May.

The third and final new addition to the office’s list, the enforcement of per- and polyfluoroalkyl substances (PFAS) exposure, will seek to control ongoing releases, ensure compliance with permits, and address endangerment issues.

Uhlmann said significant new enforcement work is coming because of pending rulemakings, and he wants the department to be “ready to meet that challenge.”

More Hiring

To boost its enforcement efforts, OECA has either hired or is in the finishing stages of hiring 270 new staffers, Uhlmann said. Those new positions are funded by an increase in the EPA’s budget, the reauthorization of the Superfund tax, and last year’s climate law.

But that doesn’t come close to compensating for some 950 enforcement personnel the department lost in the 2010s, and 23 of the new hires are for short-term positions only.

Still, Uhlmann said the bulking up of EPA’s enforcement muscle “will make a substantial impact on our ability to meet the goals” laid out in the latest list of enforcement and compliance initiatives.

Uhlmann said he’s aware the administration’s Republican opponents aren’t likely to embrace a tougher stance on enforcement. But the office’s job is to “make decisions based on the law and the facts and the obligation to do what’s right for communities across America,” he said.

He also made a plea for more bipartisan unity around climate science.

“A warming planet, with record heat, wildfires, unprecedented flooding, worsening storms, does not care about our partisan political affiliations,” he said. “It doesn’t care what we think about about any of the raging political issues of our times.”