The Bush Record on the Environment: What a Difference Two Years Make

Although the Bush Administration has proposed a few environmentally positive initiatives . . . these initiatives have been far over-shadowed by the efforts to weaken or roll back environmental protections

Deterrence vs. Cooperation and the Evolving Theory of Environmental Enforcement

This Article critically examines the assumptions underlying the reform movement, and concludes that we should ease the rush to dismantle traditional, deterrence-based civil enforcement. While some of the underlying critiques of traditional enforcement have merit, they do not demonstrate that a wholesale shift to a primarily cooperative-oriented approach will improve compliance with environmental law. In fact, a deterrence based system of enforcement contains many attributes that are equally if not more essential to achieving compliance. Rather than discarding the current enforcement approach, we should move to a system of environmental enforcement that is grounded in deterrence theory but integrates the most constructive features of a cooperative model. Part II of this Article describes the theoretical basis for the traditional approach to enforcing environmental law, and how this approach has evolved in practice. Part Ill assesses the major theoretical critiques of deterrence- based enforcement that underlie the current push for reform. Part IV discusses the positive elements of deterrence-based enforcement and why they should not be abandoned. Part V analyzes the wisdom of the most significant proposed reforms currently being considered or implemented, and suggests a better approach for improving enforcement of our nation\u27s environmental laws

A Survey of Federal Agency Response to President Clinton\u27s Executive Order No. 12898 on Environmental Justice

In an effort to address the well-documented and serious problem of environmental justice in the United States, President William J. Clinton issued Executive Order (EO) No. 128981 on February 11, 1994. The EO represented the culmination of a century of rapid changes in society\u27s attitudes toward the placement of hazardous facilities in poor, disadvantaged, and minority communities, as well as the denial of services to these communities. This survey examines the impact of the EO on federal agencies

Enforcing the Clean Water Act in the Twenty-First Century: Harnessing the Power of the Public Spotlight

Thirty years after the passage of the Clean Water Act, how can we strengthen enforcement of the CWA, increase rates of compliance, and move closer to achieving the statute\u27s un-derlying objectives? This Article argues that legislators and policymakers looking for solutions in this resource-strapped era should harness the power of the public spotlight to enhance enforcement efforts. Part I describes the strong Congressional and public support for vigorous enforcement of the statute. Part II discusses how successfully the NPDES program currently is being implemented by the states and the EPA. The record of performance shows that there are numerous deficiencies in the permitting and enforce-ment programs of many states and that rates of noncompliance by regulated entities are disturbingly high. Part III describes the large resource gap affecting many state NPDES programs, including state enforcement and com-pliance assistance programs. Part IV discusses various spotlighting ap-proaches that can be used to improve enforcement programs. These include (1) shining an EPA spotlight on the enforcement and compliance-related records of regulated firms; (2) shining an EPA spotlight on the performance of state NPDES programs in achieving compliance among regulated firms; and (3) requiring that publicly-traded corporations disclose more enforcement and compliance-related information to investors and the public

Advancing Environmental Justice Norms

Part I of this Article provides brief background on the environmental justice movement. Part 11 generally describes some of the challenges that environmental justice principles pose for the traditional environmental decision-making paradigm. Part III presents several specific examples of how environmental justice norms can be incorporated to improve the ethical outcomes of traditional agency decision making

Promoting Pragmatic Risk Regulation: Is Enforcement Discretion the Answer?

Over the past decade and more, there has been a sustained attack on our nation\u27s approach for regulating environmental, health and safety risk. Critics have argued that the current system is inefficient, irrational, and overly rigid and have proposed a raft of solutions for improving our regulatory approach, most prominently greater reliance on cost-benefit analysis. In Risk Regulation at Risk: Restoring A Pragmatic Approach, Professors Sidney Shapiro and Robert Glicksman offer a strong, coherent defense for our current system for environmental, health and safety regulation based on the long-standing philosophical tradition of pragmatism. Their book persuasively documents how risk-based statutes enacted by Congress reflect a pragmatic accommodation of widely shared social values, including those that are not economically quantifiable. For example, on the one hand, the book shows how statutes recognize that the protection of human life and the environment has a fundamental value unrelated to economic measurement and, on the other hand, recognize that efficiency matters and that cost should be an important consideration in regulatory policy. The specific question addressed by this Article is to what extent one of the various mechanisms proffered as a potential vehicle for making back-end adjustments-namely, the use of enforcement discretion-is well suited to achieving the authors\u27 goals. In short, is it a viable and effective tool for mitigating either unintended or unwise consequences of regulatory policy? The authors provide little discussion about how they envision this particular technique would be used to achieve back-end adjustment, but they cite as examples the refusal by an agency to enforce de minimis or technical violations and EPA\u27s Supplemental Environmental Project (SEP) policy, in which regulated entities that have violated the law can avoid paying fines by undertaking environmentally beneficial projects. EPA\u27s SEP policy is one for which there is no statutory authorization; the EPA developed it as part of its own efforts to improve enforcement policy. This Article analyzes these questions largely in the context of environmentalregulation. The focus is on the process of back-end enforcement adjustments; I do not explore fully the substantive standards on which such adjustments should be based. Part II discusses how enforcement discretion is used in the current system. Part ill analyzes whether it is desirable to give agencies more enforcement discretion in order to accomplish back-end adjustments. Part IV examines the role that judicial review and increased public participation could play in minimizing the possible pitfalls of enhanced enforcement discretion

Competing Visions: EPA and the States Battle for the Future of Environmental Enforcement

First, the Article describes the enforcement approach being advocated by many states. To some, it represents an innovative, superior way to achieve compliance. To others, the states\u27 vision is a pretext for weakening enforcement that will result in more widespread violations by regulated facilities. The Article also examines how EPA has shifted its own enforcement policies in response to state pressures. Next, the Article discusses what we know empirically about which system works better. There is relatively little evidence about compliance assistance programs, more for deterrence-based approaches. The evidence shows that deterrence-based approaches work, and that in the absence of meaningful sanctions, compliance suffers. The Article then examines a few of the leading theoretical arguments for shifting to a cooperative-oriented strategy. Finally, it details some elements of a reformed deterrence-based system that will work most effectively to assure compliance with environmental law. This approach includes more compliance assistance, more flexible deterrence-based approaches, and mandatory disclosure as an adjunct to enforcement