Enforcement

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Both within the United States and other countries, enforcement by government agencies and individual private citizens is widely viewed as a crucial aspect of the implementation of environmental laws. It is critical as a legal control on individuals and companies who violate pollution control standards and serves as a negative incentive for those who might otherwise violate the law. Moreover, enforcement is an important indicator of the seriousness with which government authorities regard environmental goals and policies.

Enforcement Authority

Under a typical U.S. federal environmental statute, after finding a source of pollution—such as a steel mill or an electric utility—to be in violation of some pollution control requirement of the statute itself, or a permit or regulation issued under it, the U.S. Environmental Protection Agency (EPA) may pursue one or more of several legal enforcement options. The EPA may (1) issue a formal written notice of violation to the owner or operator of the violating source, with a copy to the state in which it is located; (2) issue an administrative order requiring the source to comply with applicable pollution control requirements; (3) make an administrative penalty assessment; (4) bring a civil lawsuit in U.S. District Court, seeking civil penalties and/or compliance with Clean Air Act requirements; and (5) request that the U.S. Department of Justice commence criminal prosecution of the polluter. Potential civil penalties may be as high as $25,000 per day of violation in some cases; criminal violators of pollution control laws may be imprisoned as well as required to pay significant criminal fines.

Most U.S. environmental laws allow enforcement of pollution control standards by state government officials and private citizens as well as federal officials. Beginning in the early 1980s, EPA ceded an increasing amount of enforcement responsibility to individual states, while retaining oversight authority. State environmental laws often are similar to federal statutes with respect to the legal options open to enforcement officials. The attitudes and capabilities of state officials in the United States vary. Some states put a higher value on traditional environmental enforcement activities than other states; some states have larger environmental enforcement staffs, and more and better enforcement resources than other states.

Many U.S. environmental laws also authorize citizen suits, lawsuits brought by any citizen against another party thought to be in violation of a pollution control standard. These citizen suits are generally barred, however, if federal or state authorities are "diligently prosecuting" an action against the same defendant for the same violation. In addition, citizen suits must be pursued with respect to environmental infractions that are "ongoing," as opposed to violations of pollution laws that occurred in the past.

Outside of the United States, the authority to enforce pollution control standards is often widely disbursed among different levels of government authorities. In Argentina, for example, environmental enforcement power is divided among federal, provincial, and municipal officials, depending on the type and extent of the pollution involved and the regulations that govern it. In Australia the responsibility for enforcing environmental laws is within the (sometimes overlapping) jurisdiction of a number of government ministries at both the state and commonwealth level. Very few nations, however, have followed the example of the United States in permitting citizen enforcement of domestic environmental standards as a supplement to the government's enforcement efforts.

Investigation, Case Development, and Litigation

At the EPA, and in many U.S. states, enforcement cases typically go through three phases: inspection and information-gathering, administrative case development, and litigation. The agency initially gathers information about potential environmental violations from corporate records, on-site inspections by EPA personnel, and the specific complaints of citizen informants. The EPA then makes a strategic determination on how to address any violations that it has identified.

Such case-specific decisions take into account a number of factors, including the duration and seriousness of the violation, the violator's past record of compliance or noncompliance, national EPA enforcement policies, the potential deterrence value of the case, i.e., the likelihood that it will set an example for others who might be tempted to violate the law, and the enforcement resources available to the EPA and other governmental authorities. In cases that involve particularly serious violations and/or willfulness or bad faith on the defendant's part, the agency may initiate a criminal investigation, and request that the U.S. Department of Justice proceed with a criminal prosecution of the violator (i.e., a suit by the government) that may result in the imposition of criminal fines and/or the incarceration of guilty individuals.

In fact, most enforcement cases are resolved on the basis of negotiated settlements well before more costly, time-consuming courtroom proceedings start. In the event that enforcement litigation does go forward without settlement, however, the EPA is generally represented in federal court by attorneys from the Department of Justice. Similarly, most state environmental agencies are represented in state enforcement litigation by lawyers from the office of the state's Attorney General.

Deterrent Enforcement vs. Cooperative Enforcement

In the 1990s, a controversy arose regarding the most effective and appropriate approach to enforcing environmental laws in the United States. One view favors deterrent enforcement, which is based on the premise that regulated entities will comply with environmental standards when economic (and other) costs of noncompliance are greater than those of compliance. Under this approach, the task for environmental regulators is to make noncompliance penalties sufficiently high, and the probability that violations will be detected sufficiently great, that it becomes economically unfeasible for regulated business to violate pollution control standards. Environmental infractions should thus be met with sanctions (i.e., fines and other punitive measures), and governmental enforcement responses should be timely and appropriate, and have a deterrent effect.

In contrast, the cooperation-based enforcement approach advocated by others begins with the notion that most businesses are "good citizens," generally inclined to comply with environmental standards. This view holds that when regulated firms violate pollution control requirements, they should not generally be subject to enforcement sanctions. Rather, in the event of noncompliance, regulatory agencies should advise regulated parties on how to come into compliance.

Cooperation-based enforcement programs typically feature one or more of a variety of approaches. They frequently include compliance incentives that encourage regulated companies to "police themselves" by engaging in environmental audits and self-correction of violations, or by adopting cleanup measures that go above and beyond what the law requires, in exchange for enforcement forgiveness or flexibility. Cooperation-based programs may also incorporate compliance assistance efforts, in which public agencies assist regulated firms and communities to comply with environmental laws through education and the provision of technical or financial assistance. Additionally, in limited instances, government officials rely exclusively on nonbinding, voluntary agreements under which industrial firms affirm their intention to comply with environmental legal requirements.

The debate between proponents of these two competing enforcement philosophies is ongoing. In practice, no regulatory system rigidly adheres to one enforcement model or the other. Instead, most are "hybrids," which pursue deterrent enforcement with varying levels of emphasis and enthusiasm, in combination with specialized compliance-assistance and compliance-incentive programs that do not involve enforcement penalties.

see also Arbitration; Clean Air Act; Clean Water Act; Environment Canada; Environmental Protection Agency; Laws and Regulations, International; Laws and Regulations, United States; Mediation; Toxic Substances Control Act (TSCA).

Bibliography

cohen, mark a. (april 2000). "empirical research on the deterrent effect of environmental monitoring and enforcement." environmental law reporter 30:10245.

hawkins, keith, and thomas, john m., eds. (1984). enforcing regulation. boston: kluwer nijhoff.

landy, marc k.; roberts, marc j.; and thomas, stephen r. (1990). the environmental protection agency: asking the wrong questions. new york: oxford university press.

mintz, joel a. (1985). enforcement at the epa: high stakes and hard choices. austin: university of texas press.

mintz, joel a. (october 1996). "epa enforcement and the challenge of change." environmental law reporter 26:10538.

rechtschaffen, clifford. (1998). "deterrence versus cooperation and the evolving theory of environmental enforcement." southern california law review 71:1181.

u.s. environmental protection agency and ministry of housing, physical planning and environment. (1990). international enforcement workshop proceedings. utrecht, netherlands: u.s. environmental protection agency.

internet resource

u.s. environmental protection agency web site. available from http://www.epa.gov/compliance.

Joel A. Mintz

In the largest Clean Air Act settlement in history, The Virginia Electric Power Co. agreed to spend $1.2 billion between 2003 and 2013 to install new pollution control equipment and upgrade existing controls at eight VEPCO generating plants in Virginia and West Virginia. The company, one of the largest coal-fired electric utilities in the nation, was charged with making major modifications to its facilities without installing required pollution control equipment. The settlement is expected to result in the annual elimination of 237,000 tons of sulfur dioxide and nitrogen oxides.

Most environmental enforcement results in monetary settlements. But not all. An executive of a New Jersey electroplating company was sentenced to twelve years in prison after he pleaded guilty to abandoning vats of sludge containing cyanide, arsenic, chromium, and other toxic materials. The cleanup at the Meadowlands Plating and Finishing Inc. factory cost the EPA more than half a million dollars.