Core Compliance and Enforcement Likely Will Go On

Of Counsel Stephen Smith (Washington, DC) authored an article for the Environmental Law Institute's The Debate series. This edition, titled "How to Advance Environmental  Protection During a Turbulent Era," features perspectives from various environmental lawyers. Read Stephen's article below. 

Despite commentary forecasting significant shifts in U.S. environmental compliance and enforcement priorities under a second Trump term—some of which will require turbulent procedural efforts—EPA’s core programs in that area will continue largely as they have under prior administrations, whether Republican or Democratic. Companies and municipalities should continue to prioritize internal environmental compliance measures to maintain competitiveness and minimize environmental risks. This will ensure they are prepared not just for the next four years, but also administrations to come.

Working under the Obama, Trump, and Biden administrations while at EPA—notably at EPA Region 4 in Atlanta, Georgia—I focused on core environmental compliance and enforcement efforts and saw firsthand how administration changes can greatly impact the internal operations and priorities of the agency, which, in turn, impact regulated industries and affected communities. However, despite these changes, traditional, day-to-day environmental compliance and enforcement work continued at the agency throughout each administration, including under the first Trump administration.

Since joining private practice, I have seen how mission-driven environmental compliance efforts within corporate and municipal operations can meaningfully ensure that organizations are in the best possible position when the inevitable environmental violation or emergency occurs. Businesses must navigate times of uncertainty—especially when faced with the turbulent federal environmental policy that they have become accustomed to over the past decade or more. That said, organizations can be certain that regardless of who occupies the White House, core environmental compliance and resulting enforcement will continue largely as it has in the past.

What is core environmental compliance and enforcement? It is traditional inspection-driven violation enforcement pursuant to the objectives of our country’s environmental statutes. It also entails cleanup-led compliance and enforcement pursuant to the Superfund law, as well as emergency scenarios like facility spills, fires, or other incidents that pose risk to life and property—and which require agency action and commonly lead to additional enforcement, including possible criminal referrals to the Department of Justice.

What is not included in my definition of core environmental compliance and enforcement are policies and regulations most susceptible to interpretation or prioritization based on political views by any particular administration. For example, policies like environmental justice and climate change that saw significant prioritization under the Biden administration—while critical and important in the eyes of many—will soon be replaced by the new administration’s anticipated priorities of streamlining permitting for oil and gas exploration, production, and transmission, cooperative federalism, and environmental deregulation efforts generally.

Notwithstanding the ebb and flow in the agency’s enforcement pipeline, most often due to pauses or delays from new administrations assessing existing cases and confirming priorities, as well as impacts from national or global issues like Covid, which significantly reduced inspections and enforcement cases in 2020 and 2021, compliance and enforcement programs remain generally consistent throughout past administrations.

While many in the regulated community will be keen to pursue the Supreme Court’s newly sanctioned arguments against EPA’s administrative enforcement efforts, including the agency’s authority to pursue penalties via administrative action, we will need to wait and see what benefits, if any, come from such pursuits.

There can, however, be mutual benefits—depending on the circumstances—for both EPA and regulated industry to resolve alleged violations via an administrative settlement rather than going to federal court, especially for minor violations. Also, if Elon Musk’s plans to deregulate industry and cut funding to the federal government, including EPA, materialize early and sizably in President Trump’s second term, such efforts could certainly curtail the ability of the agency to perform its core responsibilities. However, such programs have endured similar efforts, including during the first Trump term. Whether this time will be different is yet to be seen.

There will be a flurry of new executive orders, and Biden orders rescinded, thereby beginning another round of turbulent federal environmental policy. While organizations should strategically pursue regulatory enhancements where they can, do not lose sight that core environmental compliance and enforcement efforts are typically the least impacted programs from administration to administration, and companies that continue to invest in such compliance efforts will find themselves to be the most prepared and competitive when future presidents, not just this one, take office.

Stephen P. Smith is of counsel for Beveridge & Diamond P.C., following a 12-year career as associate counsel of EPA Region 4. The viewpoints are his own and not necessarily those of Beveridge & Diamond or its clients.

Reprinted by permission from Environmental Forum®,  March/April 2025. © 2025, Environmental Law Institute®, Washington, D.C. www.eli.org.