Robert Glicksman on CPRBlog {Bio}

Enforcement and Regulatory Governance

Co-authored with David L. Markell

Enforcement is widely acknowledged to be an indispensable feature of effective governance in the world of environmental protection and elsewhere. Unfortunately, criticisms of the U.S. government’s efforts to enforce the environmental laws began almost with the inception of the Environmental Protection Agency (EPA) more than forty years ago – and they continue virtually unabated today.

In a 2012 report, for example, the U.S. Government Accountability Office(GAO) noted that “EPA has reported that it is not achieving all of the environmental and public health benefits it expected . . . because of substantial rates of noncompliance.” Former EPA Administrator Lisa Jackson acknowledged in 2009 that “[t]he level of significant non-compliance” with various Clean Water Act requirements had grown “unacceptably high.” Even EPA’s enforcement office has admitted significant shortcomings, noting that “violations are . . . too widespread, and enforcement too uneven.”

Assessments have found serious deficiencies in state enforcement performance too. This is a significant weak spot for environmental protection because of the central role that states play in the U.S. cooperative federalism system of environmental protection.

Several looming challenges have exacerbated concerns about enforcement. In many areas of environmental regulation, the size of the regulated community has expanded dramatically, putting additional pressure on government data-gathering, monitoring, and enforcement capacities. For example, the number of point sources subject to CWA permitting requirements, such as those responsible for stormwater discharges and pesticide applications, doubled over a recent ten-year period.



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CPR Briefing Paper: Chesapeake Bay States Need to Strengthen Penalty Policies to Make Sure there is No Profit in Pollution

Industries that discharge water pollution are required to abide by clean water laws and regulations that limit how much they can pollute the nation's rivers, lakes, streams, and other bodies of water. If they exceed their limits or fail to implement appropriate methods for controlling their pollution, they violate the law. Such violations should trigger appropriate sanctions to deter all regulated entities from committing future violations.

Unfortunately, polluters may weigh decisions about whether and how much to pollute from a dollars-and-cents perspective only, comparing the costs of compliance with the penalties to which they may be subject for exceeding applicable discharge limits. Such a comparison can make decisions about how much to pollute turn on a comparison of the bottom line on the corporate balance sheet with and without a violation, without any apparent recognition of the impact that pollution may have on the health of others or the social responsibility to abide by legal mandates.

That's precisely why strict regulation of polluting industries is necessary. More specifically, it's why there should be no question that the cost of violating the law will exceed the avoided costs of compliance that result from a decision not to abide by applicable discharge limits. The penalties for violating environmental laws such as the Clean Water Act should provide ample economic disincentive to violate the law —the penalties must be high enough that regulated businesses that make decision about whether to pollute based purely on the bottom line will find no profit from polluting. 

Today, CPR releases No Profit in Pollution: A Comparison of Key Chesapeake Bay State Water Pollution Penalty Policies (CPR Briefing Paper 1305), which examines the component of clean water enforcement penalty policy that is aimed at ensuring that polluters do not profit from their bad behavior. The paper focuses on what is known formally as the “economic benefit of noncompliance (EBN).” We look at the penalty policies of three key Chesapeake Bay states, Maryland, Pennsylvania, and Virginia, to examine the rigor of their penalty policies and practices concerning the EBN penalty component. Using the EPA’s policies and frameworks as the comparative standard, we review the clean water statutory and regulatory frameworks in these three states to determine the answers to the following questions:

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A Tribute to Joe Feller

Last week, CPR lost one its most dynamic scholars, Joe Feller, in a tragic accident. Joe was deservedly well known as a staunch and vigorous advocate on behalf of natural resource preservation, especially the public rangelands that he loved. Joe was not cut from the typical academic mold. Although he wrote frequently and with vision about subjects that included rangeland protection and water law issues, he was at least as comfortable leading environmental protection efforts in the agencies and the courts. Joe filed administrative protests and appeals, represented environmental interests in litigation in the federal courts, submitted comments on proposed agency decisions and rules, testified at public hearings and before legislative committees, and participated in collaborative problem-solving groups.  For example, he successfully litigated a path-breaking case requiring compliance with environmental laws in the renewal of grazing permits on federal public lands.  Joe’s contributions to CPR included efforts to facilitate grazing law reform,

Joe brought to these endeavors interdisciplinary skills that most legal academics lack. He earned a Ph.D. in physics from the University of California at Berkeley and was an Assistant Professor of Physics at Columbia University.  Before beginning his legal academic career, he worked in the Office of General Counsel of EPA, serving as the principal attorney for promulgation of the national ambient air quality standards for particulate matter in the 1980s. 

Those who knew Joe, however, understand that a recitation of his many notable accomplishments does not come close to capturing what made him beloved by his friends, colleagues, and students. Joe was irreverent. He had a wicked sense of humor. He was incredibly quick and insightful. He let you know where he stood, but was not overbearing. A gathering that included Joe Feller was never dull. He had a knack for cutting to the chase by posing questions and making arguments that reflected his fervor for the legal and policy issues on which he engaged, but that also sparked debate and new insights among others. Joe’s passing leaves a large hole. Those of us who shared a meal, hiked a trail, took a run, or attended a conference with Joe will sorely miss his humor, optimism, and high spirits, but we will treasure the memories of these experiences. 

Much of what was special about Joe is captured in tributes that others have already written, including blogs by Holly Doremus, another CPR scholar,, by Joe’s colleagues at ASU,, and by other legal scholars,  A scholarship fund has been established at the Sandra Day O’Connor College of Law at Arizona State University, where Joe taught for 25 years,  A collection of Joe’s photos of the landscapes he so loved and fought so hard to protect can be found here,


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National Energy Policies and the Environment: Can the National Environmental Policy Act Provide a Harmonizing Framework?

Energy policy in the United States is inextricably linked with questions of environmental protection. Thus, for example, the Obama administration will soon be called upon to decide whether to approve the Keystone XL pipeline, how much (and what kind) of regulation to impose on hydraulic fracturing for natural gas extraction, whether to regulate carbon emissions from existing coal-burning power plants, what proportion of federally owned lands should be devoted to mineral extraction, and whether to allow the expansion of oil and gas drilling in northern Alaska. Each of those pending decisions will not only affect the mix of sources available to meet the nation’s energy needs, but will also have immense consequences for the nation’s environment and, indeed, for the future of our planet.

This link between energy policy and environmental protection is nothing new. It has been evident at least since the beginning of the modern environmental era in the United States. Many of the precedent-setting judicial decisions throughout this era emerged from cases involving a potential clash between energy needs and environmental consequences. These have included disputes over the environmental impacts of coal leasing in the northern plains, offshore oil and gas leasing, geothermal development, hydroelectric power production that is potentially damaging to fish and other aquatic life, the issuance of patents to extract hardrock minerals, and the back end of the nuclear fuel cycle.

Despite this longstanding and apparent overlap of energy and environmental policy, it is perhaps unfortunate that energy law and environmental law in the United States are both based upon a disparate and complicated set of federal and state statutes, regulations, and policies. They exist in separate spheres, with occasional exceptions such as the amendments to the Federal Power Act that require the Federal Energy Regulatory Commission to take the impacts of hydroelectric power production on anadromous fish and other aquatic life into account when making licensing decisions on hydropower facilities. Notwithstanding this tendency toward fragmentation at the national level, one visionary statute may provide a valuable framework for harmonizing the nation’s important environmental concerns with its energy needs: the National Environmental Policy Act of 1969 (NEPA).

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A Bill to Steamroll the NEPA Process

The irony is palpable, though clearly intentional.  More than forty years ago, Congress kicked off the “environmental decade” by adopting the National Environmental Policy Act (NEPA).  NEPA’s goals are to ensure that federal agencies whose developmental missions often incline them to ignore or place a low priority on environmental protection to consider the possible adverse environmental consequences of major actions before committing to them, and to make the results of that evaluation publicly available.  NEPA sought to assure balanced consideration of the economic and social benefits of proposed agency actions that tended to be the focus of private proponents and the agencies themselves, and the environmental costs that previously had received short shrift.  Assessments of NEPA differ, but many environmental policy experts agree that the law has effectively forced agencies to look at possible adverse environmental consequences before they leap into project approval and implementation.  NEPA’s most important practical impact may have been bringing to light environmental problems that agencies have been able to mitigate or eliminate at reasonable costs and without sacrificing project goals.   

Taking their cue from NEPA’s successful integration of environmental matters into agency decisionmaking processes, developers, industry, and their political allies in the ensuing years lobbied for and got a series of statutes and executive orders in the ensuing years that require agencies whose missions are to protect health, safety, and the environment to place greater emphasis on the economic impacts of regulatory decisions.  These laws have slowed down the regulatory process and contributed to weaker regulations.  Now, the same forces that sought to restore “balance” in the wake of NEPA’s focus on environmental concerns, by forcing regulatory agencies to place more emphasis on economic impacts, are supporting legislation that would significantly undercut NEPA by handcuffing the ability of agencies to conscientiously implement that law.  Adoption of this legislation would go a long way to recreating exactly the problem Congress targeted when it adopted NEPA – a skewing of government decisionmaking processes toward approval of projects regardless of their potential adverse environmental effects.

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EPA Steps Up to the Plate on Clean Water Act Enforcement. Congress Needs to Step Up, Too

Just about a month ago, the New York Times published a story in which it documented an alarming failure on the part of federal and state officials to enforce the principal federal law designed to protect the quality of the nation’s surface waters, including rivers, lakes, and streams. According to that story, fewer than three percent of identified violations of the Clean Water Act result in fines or other significant punishments by state officials. These violations have the potential to threaten the health of people who use the affected waters drinking, swimming, fishing, and other purposes. Yet, the federal Environmental Protection Agency (EPA) has rarely stepped in to reclaim authority to administer the Act from states failing to fulfill their responsibilities to protect water quality through vigorous enforcement efforts.

EPA officials were well aware of these problems. This summer, less than six months after becoming President Obama’s EPA Administrator, Lisa Jackson ordered EPA’s Office of Enforcement and Compliance Assurance (OECA) to investigate federal and state enforcement programs under the Clean Water Act and take steps to strengthen the statute’s capacity for protecting water quality and the health of those who use the water. Today, OECA responded to that charge by releasing its Clean Water Enforcement Action Plan. The Plan forthrightly recognizes the appalling plethora of significant water quality problems that face too many of America’s communities and traces those problems, in significant part, to ineffective implementation and inadequate enforcement of the Clean Water Act by both federal and state authorities.

The Plan commits EPA to taking important steps that will enable the Clean Water Act to fulfill its potential for protecting the integrity of the nation’s waters. The Plan is designed to address concerns about high noncompliance and low enforcement rates, and troubling gaps in the information needed to identify the sources of significant water quality problems and effectively address those problems. These steps include identifying the sources responsible for the worst water quality problems and working with state environmental officials to initiate appropriate enforcement actions against those violating permit or other regulatory responsibilities. The Plan also promises that when EPA determines that a state is not taking sufficiently protective actions in issuing and enforcing permits, it will either divest the state of its authority to administer the Clean Water Act, force the state to regulate more effectively, or supplement state enforcement efforts. In addition, the Plan endorses the development by EPA of “performance metrics” for permitting and enforcement, which will enable the public to hold both EPA and the states accountable if they do not do their jobs in protecting water quality. CPR member scholars have long advocated exactly these kinds of accountability mechanisms. Finally, the Plan commits EPA to issuing regulations to require more comprehensive and effective reporting by regulated sources through a new electronic reporting tool called NetDMR. The use of electronic reporting will facilitate both coordination of state and federal enforcement strategies and public access to the latest information about water quality problems and agency enforcement activities.

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The Supreme Court's Decision on Standing in Summers vs. Earth Island Institute, Part Two

Center for Progressive Reform Member Scholar Robert L. Glicksman replies to Member Scholar William Buzbee's post on the Summers vs. Earth Island Institute decision: The decision in Summers represents the latest salvo in a continuing battle between those Supreme Court Justices who view the function of standing doctrine as ensuring that litigation before the federal courts is capable of being presented in an adversary context suitable for judicial resolution, and those who regard it as a fundamental bulwark against intrusion by the judicial branch on the prerogatives of the legislative and executive branches. As late as 1968, the Court remarked in a case called Flast v. Cohen that standing law does not by its own force raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Justice Scalia, who wrote the majority opinion in Summers as well as in the Lujan case referred to in Bills post, has insisted... (To read the entire post, click on the headline above.) Full text

Revitalizing Cooperative Federalism by Limiting Federal Preemption of State law

Center for Progressive Reform Member Scholar Robert Glicksman blogs on an Executive Order proposed for President Obama in CPR's "Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days." Full text