The Carrot or the Stick?
When I first started practicing environmental law in 1987, I read the book “America’s Future in Toxic Waste Management: Lessons from Europe” by Bruce W. Piasecki and Gary A. Davis. In the book, they discussed the difference in philosophies between European environmental enforcement theories (the carrot) and the United States’ philosophy (the stick).
My good friend, Brent Fewell, with the Earth and Water Group, recently posted on Facebook, regarding the current administration’s attempts to use the “carrot” approach to enforcement – that is, (and I am paraphrasing somewhat here) give non-compliers notice that they are noncompliant, give them sufficient time and the tools to come into compliance, warn them of the consequences of continued noncompliance and then if the regulated entity fails to heed the advice and take advantage of the leniency, then drop the hammer.
Generally speaking, I am in favor of that approach. The question then becomes, how are the noncompliant entities going to come to the attention of the agency? Inspections are down, there are fewer agency employees, federal grants to state agencies are drying up, cooperative federalism only works so far, state agencies do not have the budgetary luxury of picking up the enforcement slack. So how will the noncompliant company come to the attention of the agency? In some sense, this approach provides an incentive to be in noncompliance, especially if it gives the regulated entity a competitive advantage.
On June 11, 2018, E&E News published an article entitled “Trump’s EPA Turns to Less Punitive Responses to Pollution” by Mike Soraghan, E&E News reporter. In essence, the article was setting out that the “enforcement initiatives” were going to become “compliance initiatives.”
“The plan is to give state governments more authority in setting priorities for enforcement programs, according to a memo obtained by E&E News. Officials also want to remove from the priority-setting process considerations about consistency and using penalties to maintain a ‘level playing field’ for companies.”
Observing this from my vantage point, that approach will further weaken a substantially reduced enforcement agenda. The states are simply not equipped, or qualified, to deal with issues that cross state borders or affect entire regions of the country, if not the entirety of the country. While the oil and gas industry complained about the enforcement efforts launched after the Obama administration made “energy extraction” an enforcement priority, imagine the cacophony of the vagaries of enforcement by North Dakota, by Louisiana, by Texas, by Alaska and by Pennsylvania. According to the article, “Inspections of ‘energy extraction’ sites dropped by one-third in EPA Administrator Scott Pruitt’s first fiscal year, according to EPA’s website.”
There are a plethora of issues that scream for national enforcement (clean water, drinking water, clean air). And while these areas need a national approach and an incentive approach to compliance may work, there are way too many issues to leave to state enforcement or state-only input. Some states are unwilling to undertake enforcement against industry that supplies a significant tax employment base. State agencies also will not consider a broader picture. Clean water, clean air, safe drinking water and its enforcement may very well take divergent paths in different states as the different states will have different budgetary constraints as well as interests.
The agency that watches over an industry may lose its way in its efforts to present a friendlier face. Then again, that is just my opinion.
More later.
As always, feel free to contact me at walter.james@jamespllc.com
WDJii