A group of environmental, conservation and farming organizations are calling for the withdrawal of a Trump-era rule that would allow states to adopt their own legal standards for prosecuting Clean Water Act violations.
The rule, proposed in December, would authorize individual states and tribes to prosecute CWA permitting violations based on any negligence standards, like gross negligence or recklessness, instead of the federal norm requiring a state to establish criminal violations based on simple or ordinary negligence.
This could allow special interest groups to convince state legislators to set a higher bar to prove intent, potentially allowing polluters to escape prosecution for major violations.
In a letter to U.S. Environmental Protection Agency administrator Michael Regan, the groups said the rule would allow states to enforce the CWA at a level less stringent than federal law requires.
“While a state Clean Water Act program need not mirror the federal program, it absolutely must provide at least the same level of protections to the nation’s water resources, which includes enforcement safeguards. In other words, state-assumed Clean Water Act programs may be more stringent and effective than their federal counterparts, but they can never be less so,” the groups wrote. “EPA’s proposed rule, if promulgated, would directly contradict the law and result in less stringent enforcement, immediately and effectively weakening the longstanding protections the Clean Water Act provide.”
According to the groups opposed to the Trump rule, Congress adopted the ordinary negligence standard to pursue Clean Water Act violations.
The standard does not require accused offenders to know or intend that its actions would violate the law or cause a resulting harm.
The proposed rule could allow states to implement standards that would require prosecutors to prove that the accused intentionally violated the law, a much higher legal standard.
“With regard to crimes committed negligently, Congress adopted ordinary negligence as the standard for Clean Water Act section 402 and 404 violations, demonstrating the seriousness with which the legislature viewed violations of these programs and its intention to support broad deterrence and enforcement,” the groups said. “Because Congress has plainly spoken to the negligence standard required to violate a section 402 or 404 permit, EPA, by law, may not regulate otherwise.”
The 1972 Clean Water Act was a series of amendments to a 1948 law known as the Federal Water Pollution Control Act, which empowered the federal government to control the pollution entering U.S. waterways.
The amendments included the establishment of the National Pollutant Discharge Elimination System, a permitting program that allowed facilities to discharge a certain amount of pollutants like chemicals, heavy metals, pesticides and other waste.
The law allows states to establish their own permit programs that would, at a minimum, enforce federal laws.
The Indiana Department of Environmental Management implements the state of Indiana’s General Permit Rule Program, which sets the criteria industries and other polluters must abide by under state law.
The permits state the penalties for violations of permit conditions, which can include a civil penalty of up to $25,000 per day; a Class C misdemeanor charge, with up to 60 days in jail and a $500 fine; a Level 6 felony charge if a violation results in damage to the environment that renders it unfit for human or animal life; or a Level 5 felony if the violation results in the death of another person.
The penalties are similar those delineated for negligent violations of the Clean Water Act.
If the proposed rule is not withdrawn, the Indiana Legislature could develop legislation that would make it harder to prosecute NPDES permit violators.
The Indiana Legislature has shown repeatedly it is willing to author and advance legislation that would directly protect business interests with questionable benefit to the environment.
In the 2021 session alone, the Legislature approved several bills like Senate Bill 389, a bill supported by the Indiana Builders Association and authored by several of its members; House Bill 1191, which makes it illegal for local governments to ban natural gas and other fossil fuels; and an amendment to Senate Bill 373, a bill originally intended to establish the foundation for carbon market infrastructure in the state, which was added to give a carbon capture and sequestration projects special legal protections from certain lawsuits.
Future legislative sessions could include changes to make polluters in Indiana less likely to face consequences for pollution permit violations, unless the rule is revoked.
“This is a very real and immediate problems that directly contradicts the basic policy and purpose of Congress to provide a minimum baseline of water protections across the nation,” the groups said.