The Lead Poisoning Challenge: An Approach for California and Other States

This Article describes a comprehensive framework for addressing lead-based paint hazards that balances the panoply of competing interests and affected stakeholders. The framework is broadly applicable to the overwhelming number of states that have not yet adopted preventative lead laws; this Article focuses in particular on California to illustrate the types of challenges that these states are likely to confront. The proposed approach is based on the recommendations of a congressionally mandated national task force, modified to address the specific needs of California. Recognizing the enormity of the lead-based paint problem (over 8.6 million housing units in California may have lead-based paint) and the paramount importance of preserving affordable housing stock, the proposed approach moves away from full-scale, expensive abatement of lead hazards in favor of more cost-efficient, health-protective measures. It provides for clear standards of care by property owners, a measure of tort liability relief for compliant owners in the event they are sued for injuries, and a strong incentive for insurers to begin providing coverage for lead-related injuries. It also mandates lead-safe work practices by contractors and encourages the development of a well-trained lead hazard control industry. The approach relies in part on market forces that will be triggered by mandatory disclosures of the risks of lead in private housing

The Lead Poisoning Challenge: An Approach for California and Other States

This Article describes a comprehensive framework for addressing lead-based paint hazards that balances the panoply of competing interests and affected stakeholders. The framework is broadly applicable to the overwhelming number of states that have not yet adopted preventative lead laws; this Article focuses in particular on California to illustrate the types of challenges that these states are likely to confront. The proposed approach is based on the recommendations of a congressionally mandated national task force, modified to address the specific needs of California. Recognizing the enormity of the lead-based paint problem (over 8.6 million housing units in California may have lead-based paint) and the paramount importance of preserving affordable housing stock, the proposed approach moves away from full-scale, expensive abatement of lead hazards in favor of more cost-efficient, health-protective measures. It provides for clear standards of care by property owners, a measure of tort liability relief for compliant owners in the event they are sued for injuries, and a strong incentive for insurers to begin providing coverage for lead-related injuries. It also mandates lead-safe work practices by contractors and encourages the development of a well-trained lead hazard control industry. The approach relies in part on market forces that will be triggered by mandatory disclosures of the risks of lead in private housing

Improving State Environmental Enforcement Performance Through Enhanced Government Accountability and Other Strategies

This Article discusses a number of options for EPA to strengthen state performance and bring it more in line with EPA\u27s expectations. First, EPA must play a stricter gate-keeping function in initially authorizing state programs, and more regularly reassess and report the adequacy of state enforcement authorities and state capacity. Second, EPA must stop delivering a mixed message to the states about the enforcement practices it expects the states to follow. Instead, it must establish clear expectations for performance. Third, in terms of the substance of those expectations, EPA should revise its criteria for evaluating whether state enforcement programs work. Because this question is central to EPA\u27s oversight practices, we discuss it at length in this Article. Among other things, we recommend that EPA place greater emphasis on measures based on how well states are doing in actually achieving compliance by regulated entities, and, to the extent feasible, improved environmental outcomes, although we also believe that continued reliance on activity-based measures is appropriate. Fourth, EPA should explore different administrative approaches for conducting program evaluations. Fifth, and related, EPA should improve its data management programs to enhance its ability to evaluate state programs. Sixth, EPA should implement a differential oversight scheme that rewards in a meaningful fashion better performing states. Seventh, EPA should publicly report its evaluation of state programs, and also improve public accessibility to the underlying data about state performance, as a way of using the power of an external spotlight to spur improved government performance. Eighth, EPA should make the prospect of program withdrawal a more credible threat and should also develop more graduated sanctions short of outright program withdrawal. Finally, EPA needs to continue to hone its capacity for strategic intervention—to help states to build capacity, and to take direct action in selected cases when needed. These options are not mutually exclusive; instead, they can and must be integrated in a variety of ways

Improving State Environmental Enforcement Performance Through Enhanced Government Accountability and Other Strategies

This Article discusses a number of options for EPA to strengthen state performance and bring it more in line with EPA\u27s expectations. First, EPA must play a stricter gate-keeping function in initially authorizing state programs, and more regularly reassess and report the adequacy of state enforcement authorities and state capacity. Second, EPA must stop delivering a mixed message to the states about the enforcement practices it expects the states to follow. Instead, it must establish clear expectations for performance. Third, in terms of the substance of those expectations, EPA should revise its criteria for evaluating whether state enforcement programs work. Because this question is central to EPA\u27s oversight practices, we discuss it at length in this Article. Among other things, we recommend that EPA place greater emphasis on measures based on how well states are doing in actually achieving compliance by regulated entities, and, to the extent feasible, improved environmental outcomes, although we also believe that continued reliance on activity-based measures is appropriate. Fourth, EPA should explore different administrative approaches for conducting program evaluations. Fifth, and related, EPA should improve its data management programs to enhance its ability to evaluate state programs. Sixth, EPA should implement a differential oversight scheme that rewards in a meaningful fashion better performing states. Seventh, EPA should publicly report its evaluation of state programs, and also improve public accessibility to the underlying data about state performance, as a way of using the power of an external spotlight to spur improved government performance. Eighth, EPA should make the prospect of program withdrawal a more credible threat and should also develop more graduated sanctions short of outright program withdrawal. Finally, EPA needs to continue to hone its capacity for strategic intervention—to help states to build capacity, and to take direct action in selected cases when needed. These options are not mutually exclusive; instead, they can and must be integrated in a variety of ways

Reinventing Environmental Enforcement and the State/Federal Relationship

Contents: 1. An overview of environmental federalism -- 2. Strategies for achieving compliance with environmental laws -- 3. The state/EPA enforcement relationship -- 4. The reinvented enforcement relationship -- 5. Deterrence versus cooperation: is major reform appropriate? -- 6. Enhancing state performance: options for EPA.https://digitalcommons.law.ggu.edu/monographs/1016/thumbnail.jp