English Muffin

Crooks and Nannies

Environmental enforcement policies can have hard and soft edges, twists and turns, not unlike an english muffin or stale political rhetoric.

With all the recent “news” about rogue regulators and heavy-handed enforcement, though, it’s a good time to review some basic principles and emerging opportunities to make environmental progress, while minimizing politicized extremes.

For starters: Enforcement is a bedrock principle of environmental law. If it’s 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 short-cuts or bad acts.

Second: Compliance assistance should be the first step and enforcement the last resort. That doesn’t mean “no enforcement” or “weak enforcement” either. It’s 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’re liable if you violate the law, whether or not you made a good faith effort or even a college try to comply. That bright-line approach works well if the enforcers work extra hard in the subsequent damages phase to review the 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 stormwater and wetlands regulation under the Clean Water Act. Municipal stormwater dischargers have to reduce pollutants to the “maximum extent practicable”. That’s 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 isn’t always clear, to put it mildly, and decisions about “practicable alternatives,” “unavoidable impacts,” and compensatory mitigation are often close calls.

Process is especially important when defendants, whether multi-national corporations or individual homeowners, dispute an agency’s jurisdictional reach.

As EPA knows, finding the right balance in this area is hard.  The 2012 Supreme Court case,  Sackett vs. EPA, involving an Idaho homeowner and a regional EPA’s compliance order, underscores the difficulty but also the need for the agency to broaden its view of administrative warning notices and opportunities for defendants to appeal without too much delay waiting for his or her day in court. The stakes can be high, both for the watershed which can suffer death by a thousand cuts, and the property owner who can be dragged into bankruptcy if regulatory uncertainty persists.

Fourth: Flexibility helps. U.S. Water Alliance does not support rolling back environmental standards. Increasingly, though, we see the possibility for even better results through progressive, integrated and innovative efforts, where flexibility, accountability, and mutual trust are given a chance.  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.  That’s a major mission of our Urban Water Sustainability Council, which looks for ways to manage water more holistically and successfully.

There’s 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 last 25 years. There are growing opportunities to improve upon 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 #1 several years ago? Will we see more agreements on wet weather and green infrastructure like those reached recently in Cleveland and Philadelphia?

Also, supplemental environmental projects that have 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 the best positioned to understand the situation. It’s a bad idea, though, to preclude interstate and federal agencies, including EPA, from having any meaningful role or taking specific action, when truly needed. It’s also absolutely critical to recognize 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 budgets of environmental agencies, it does make sense for agencies to prioritize regulatory efforts and also to carefully update criteria on affordability and financial capability. EPA’s work to integrate Clean Water Act planning and permitting for wet weather, watershed scenarios makes sense.  Over time, drinking water considerations should be included. The use of penalties prompts a legitimate and long-simmering debate, as well: 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?

Reality lies between the rhetorical extremes of crooks and nannies. Green infrastructure and holistic watershed strategies provide regulators, enforcers, and communities with opportunities to get creative and innovative. Here’s a toast to such efforts and the legitimate role enforcement can play throughout.

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