July 15, 2009

Lisa Jackson's Memo on CWA Enforcement -- Looks Like a Good First Step

In a memo sent to EPA’s Office of Enforcement and Compliance Assurance on July 2nd, Lisa Jackson, the Agency’s Administrator, observed that “the level of significant non-compliance with [Clean Water Act] permitting requirements is unacceptably high and the level of enforcement activity is unacceptably low.” She directed Agency officials to develop a new plan for improving Clean Water Act enforcement at the federal and state levels.

Although the details of such a plan are yet to emerge, Administrator Jackson’s memo is certainly welcome news. States have varied considerably in their approaches to environmental enforcement. Some states have put considerable emphasis on deterring environmental violations by taking timely, appropriate enforcement actions when significant instances of non-compliance come to their attention. In contrast, other states have relied upon informal, “cooperative” enforcement practices that have often proven ineffective in coaxing industries and municipalities to meet their environmental responsibilities. Still other states have shown almost complete indifference when instances of significant environmental non-compliance have come to their attention. Moreover, the vast majority of states –as many as 45, if a recent draft report from the EPA is accurate—currently fail to calculate, document, and collect enforcement penalties in an effective manner.

Almost any environmental enforcement plan that EPA adopts seems likely to result in at least some improvement in state environmental enforcement performance. Nonetheless, the extent to which environmental enforcement and permitting will truly be improved—particularly in those states that have traditionally resisted a vigorous, deterrent approach to enforcement—seems likely to depend upon several factors. One of those will certainly be the extent to which EPA will be willing to take back its delegations of authority to issue pollutant discharge permits in states that have poor records of performance.

The federal agency presently lacks the resources to replace state permitting and enforcement on a massive scale, and a true, cooperative sharing of responsibility for environmental permit issuance and enforcement is still the optimal approach. Nonetheless, in instances where a state’s enforcement and permitting work has dwindled to unacceptable levels, and the state’s officials remain stubbornly unwilling to upgrade their efforts, an orderly EPA withdrawal of state permitting authority would be the appropriate step. Carefully targeted, judicious withdrawals of state authority to issue permits will not only improve environmental protection in those particular states, they are also like to send a strong signal to other states with substandard enforcement programs that their continued failure to remedy their shortcomings may result in embarrassing publicity and unwanted consequences.

A second critical factor will be the extent to which EPA will actually withhold grant monies from individual states whose enforcement and permitting practices are lax. In the current era of budget shortfalls at the state level, such federal actions—or even a credible threat that they will be taken—may have a powerful, beneficial impact on state decisions regarding permitting and enforcement.

Finally, it remains to be seen how much EPA will use its legal authority to “overfile,” i.e. to take separate federal enforcement actions against environmental violators who have previously entered into enforcement settlements with state officials that the Agency deems unacceptable. Although this power to overturn “sweetheart deals” should be used carefully, its exercise is likely to spur some states into seeking more environmentally beneficial settlements with environmental violators. Selective overfiling will also strengthen the hand of some state officials in other cases, as they engage in the negotiation of settlement agreements with recalcitrant polluters. The assertion that “if you don’t make a deal with us the Feds are only going to be tougher with you” can be a useful prod toward environmentally sound settlements in major enforcement cases at the state level.

In sum, Administrator Jackson’s recent memo seems an appropriate and beneficial first step towards improving environmental enforcement efforts across the United States. We must still wait and see, however, whether her strong words will be followed by the bold and resolute actions that are needed to effectuate meaningful changes in the enforcement and permitting practices of federal and state environmental officials.

Joel Mintz, CPR Member Scholar; Professor, Nova Southeastern University Law Center -- Fort Lauderdale, Florida. Bio.

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