September 15, 2009

N.Y. Times Article on Water Pollution: A Timely Reminder of the Role of Enforcement

Sunday’s New York Times article about the neglect of our clean water laws came as a timely reminder that, no matter how well articulated our environmental laws may be, it takes consistent, vigorous enforcement to ensure compliance with these statutory regimes. Unfortunately, as the article illustrates, state and federal enforcement of the Clean Water Act has languished during the past decade. Not only have governmental resources been inadequate, but all too often the will to enforce the law has been absent. Although water pollution violations often pose grave hazards to public health, the political climate in many state capitals seems to have favored polluters, even those who repeatedly violate the law, and the U.S. EPA appears to have been unwilling, at least up until the current administration perhaps, to force these recalcitrant states to perform their duties under the Clean Water Act.

While the article is sure to draw attention to this recent enforcement hiatus, the lapse of the past decade is not an aberration. The first enforcement lapse occurred during the early years of the Reagan administration when state and federal enforcement of the Clean Water Act fell dramatically. This pattern was repeated after the mid-term elections in 1994 when both state and federal enforcement efforts slipped badly yet again.

These periodic enforcement breakdowns produce confusion in the regulated community, encourage non-compliance, and subject our environmental agencies to ridicule. Such lapses also breach an implied social contract with those regulated entities who, relying upon responsible law enforcement, have invested substantial amounts of time and money to comply with the law. More importantly, however, the lack of effective enforcement breaks faith with the public that depends upon these agencies to provide clean and healthy water.

Enforcement, unfortunately, is quite vulnerable to administrative and political manipulation because the level and quality of enforcement actions are not particularly transparent. No trip wire is breached, no public notice is given, and no report is transmitted to Congress when enforcement zeal falters and enforcement efforts fade. As Representative Oberstar told the Times, “I don’t think anyone realized how bad things have become.” Enforcement -- or more precisely, the lack thereof -- is therefore an ideal method for an administration, either at the state or federal level, to undermine a regulatory statute with which it fundamentally disagrees. Such backdoor, de-regulatory efforts are an especially attractive tactic when public support for environmental protection continues to be strong.

Federal and state enforcement efforts obviously must be beefed up. Enforcement lawyers and other agency enforcement professionals must also be given the respect and support they deserve. Their professionalism, courage, and determination could and should become a bulwark against future efforts to undermine enforcement, and such efforts will surely come again. A number of structural flaws in many state programs must also be addressed. These include the lack in many states of effective enforcement policies that prescribe the taking of timely and effective enforcement actions and the calculation of meaningful penalties, including penalties that recover the economic benefit which violators enjoy as a result of their noncompliance. Too many states, furthermore, have environmental audit laws that grant immunity from enforcement, and statutes that render audit information privileged information, which is unavailable to law enforcers. Finally, Congress should waive federal sovereign immunity for civil and administrative penalties so that federal facilities can be held accountable for their violations of the Clean Water Act. After all, what is good for the goose is good for the gander.

The Congress that enacted the Clean Water Act in 1972 was aware that governmental enforcement lapses could occur. As a result, the Act authorizes citizen enforcement actions as an important supplement to federal and state enforcement. The courts, however, have placed a number of barriers in the way of citizens who seek to enforce the Act. These barriers must be removed. For example, Congress should permit citizen suits not only for continuing violations, but for past violations as well. The press, moreover, should shine a spotlight on those state attorneys general who only seem to act when it is necessary to preempt the filing of a citizen suit.

The success of a complex regulatory scheme like the Clean Water Act depends upon effective enforcement. As the Times article illustrates, a more cooperative, flexible approach to regulatory enforcement simply does not work. There is, in short, no substitute for traditional enforcement programs that provide consistently tough, but fair responses to the violation of our environmental laws.

William Andreen, CPR Member Scholar; Clarkson Professor of Law, University of Alabama School of Law. Bio.

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