As I read news of SCOTUS’ weakening the ability of the EPA to curb power plant emissions I could only think of the implications – directly and indirectly – on the water utility sector. I could only think of the impact and risk to our already fragile water systems. For a country where a good part of the energy we generate is used to treat, convey, heat and supply water we cannot afford to continue using carbon emitting sources of energy at the rate we currently do.
For example, in California, a whopping 19% of electricity used by businesses and homes is used to supply, convey, treat, and heat water. Along with this energy consumption, power plants and other energy-heavy industries that draw heavily from source water, have permits that allow certain levels of hazardous effluent discharge back into source water. Unsurprisingly, some of these companies exceed their permitted levels of discharge and violate the Clean Water Act.
Who Pays for Violations of the Clean Water Act?
According to Varuna’s analysis of EPA fines and violation data, companies have been fined $220M over the past 30 years for violations of the Clean Water Act. The primary section of the Clean Water Act with the highest number of penalties is 301/402, which establishes the National Pollutant Discharge Elimination System (NPDES) Program, which the States also administer. This requires a permit for sewer discharges and storm water discharges from developments, construction sites, or other areas of soil disturbance.
Our analysis of EPA data on violations of the Clean Water Act from between 1992-2022 shows that, while the total penalties have generally increased each year, the mean values are relatively stable. This can be explained by the increasing number of cases each year (chart below).
The highest fine of $130M, which was levied on Enbridge Energy L.P. in 2017, was for the Marshall oil spill in 2010. Records show that the company actually paid $62M in fines and the rest was used to implement initiatives to prevent future spills. This payment led to a spike in the total and mean values in 2017.
Our analysis shows that the trend has been towards more cases and more fines (as seen in the chart below) up until 2018 when the EPAs ability to ensure safety for citizens was deeply hampered by the scaling-back of federal climate mitigation measures. We project that if the EPA can no longer fine companies like Enbridge Energy LP, the consequence of this ruling is that effluent discharge related contamination will only increase. Cases will drop but it won’t be because the plants or energy companies have suddenly mastered ideal discharge management.
But there is hope. At Varuna we have some ideas about how to prevent this continued decline in water stewardship that is leading to catastrophic conditions.
How Can We Pick Up Where The EPA Leaves Off?
So how do we address the weakened position of the EPA? It has to come from more accountability and transparency from the systems and corporations that impact the contamination issues we are seeing with our water. While contamination is a big issue, it would be a mistake to assume that it is the highest risk issue for a water system at any one time. In Varuna’s risk and resilience tool, we track 26 key vectors that present risk to the proper functioning of (and delivery of clean water by) a water system. These vectors can be bucketed into:
- internal risks (the risks based on the actions the corporation or water operator is responsible for e.g. incidents of poor water treatment),
- external risks (the risks that are as a result of actions by actors from without but impact the operators ability to ensure clean water, for e.g. effluent discharge above permitted levels by a manufacturing plant),
- and systemic risks (macro environmental risks that are not within the control of the operator or corporation but impact their ability to deliver clean water, for e.g. flooding).
While the EPA’s regulatory power may be diminished, accountability can still be maintained by water systems and corporations themselves through the tools available. The tools and technology exist, what we need is a will to continue to push all stakeholders to ensure consistent availability and access to clean water. It’s what we all deserve.