U.S. Environmental Protection Agency (EPA) friends tell me that Abraham Lincoln is believed to have said, “Law without enforcement is just good advice.” In the environmental field, everyone agrees that fines and penalties, orders, and decrees can play important roles—but what enforcement policies and priorities will achieve the greatest environmental progress? Here is my take.
Six Principles
For starters, enforcement is a bedrock building block of environmental law. If it is nonexistent, inconsistent, unclear or simply unfair, it unravels the regulatory fabric, leaving good actors frustrated, the public angry, and ecosystems and communities at risk. Enforcement done right serves as a powerful deterrent to those who contemplate shortcuts or bad acts.
Second, compliance assistance should be the first step and enforcement the last resort. That does not mean “no enforcement” or “weak enforcement,” either. It is a sequence of events, a hierarchy of actions designed to instill a culture of collaboration and compliance. Surprise inspections add value but should be selected carefully and fairly. There should be incentives for third-party audits and self-disclosures of violations that are corrected. Agencies that strive to measure environmental outcomes, rather than just penalty beans, can instill public trust and dispel accusations of playing “gotcha.”
Third, intent and process matter. Statutes and regulations spell out the various states of mind for culpability and criminal intent. For many environmental laws, a non-criminal defendant’s conduct is judged under “strict liability” standards rather than negligence or gross negligence. This means you are liable if you violate the law, whether or not you made a good faith effort or even just a college try to comply. That bright-line approach works well if the enforcers work extra hard in the subsequent damages phase to review circumstances such as the gravity of the offense, efforts to comply, and economic benefit to and environmental track record of the violator.
It gets trickier in certain areas, such as storm water and wetlands regulation under the Clean Water Act. Municipal storm water dischargers have to reduce pollutants to the “maximum extent practicable.” That is an important duty, but not a clear standard all the time, and the requirements to reduce such pollution and monitor results can add significantly to a community’s expenses. Permits for discharges of dredged or fill material into wetlands and other waters of the U.S. also lead to controversy, as agency jurisdiction is not always clear, to put it mildly.
Fourth, flexibility helps. I do not support rolling back environmental standards. Increasingly, though, I see the possibility for even better results through progressive, integrated and innovative efforts. Watershed-based permits, resulting from collaborative public-private partnerships, can score more points for the environment, economy and social justice if done right and in close coordination with regulators.
There is an important role for judicially enforceable consent decrees, but we need to continue looking for improvements. I have personally seen these instruments drive environmental progress in cities and businesses over the past 25 years. There are growing opportunities to improve the look, feel and use of these documents. Can more be done through permits rather than consent decrees, and can more decrees include watershed planning and permitting concepts, as was done in the case of Northern Kentucky’s Sanitary District No. 1 several years ago? Will we see more agreements on wet weather and green infrastructure like those reached in Cleveland, Philadelphia, Washington, D.C., and Kansas City, Kansas? Supplemental environmental projects with a close nexus to the type of violation involved and well-run mitigation banks that operate within the affected watershed and respect the permit sequencing process continue to offer promise, in my book.
Fifth, states can lead. More often than not, delegated state programs should take the lead on enforcement. They are positioned best to understand the situation. It is a bad idea, however, to preclude interstate and federal agencies, including EPA, from having any meaningful role or taking specific action when truly needed. It also is absolutely critical to recognize that the feds do need to step in, in various ways, when interstate impacts occur and states are not able or willing to work through them. Federal intervention of sorts is even welcome at times in some cash-strapped states.
Sixth, money matters, too. With the concern over the federal deficit and dwindling, sequestered and otherwise squeezed budgets of environmental agencies, it makes powerful sense for agencies to prioritize regulatory efforts and carefully update criteria for affordability and financial capability. EPA’s work to integrate Clean Water Act planning and permitting for wet weather and watershed scenarios is a good start. Over time, drinking water considerations should be included. Should penalties be diverted from the general fund of the U.S. Treasury to cover environmental cleanup projects and administrative costs of environmental agencies? Should polluters pay the general operating costs of environmental agencies in order to fill the gaps created by shrinking budgets and fund-sweeping legislatures?
Abe was right. We need more than advice to get the job done. Smart enforcement policies will go a long way in getting communities—and the country overall—closer to fishable and swimmable, drinkable and profitable.
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