Civil Enforcement of the Clean Air Act
| Author | Arnold W. Reitze, Jr. |
| Pages | 253-292 |
Page 253
Chapter 9:
Civil Enforcement of the Clean Air Act
§1. Goals of Enforcement
An environmental law enforcement program
requires balancing competing considerations while
pursuing several interrelated goals. Enforcement
organizations have limited funding a nd personnel.
us, the rst goal of an enforcement strategy is
to use available resources w isely to maximize com-
pliance with environmental laws. is not only
requires eective use of existing resources but the
selection of enforcement strategies that will protect
the continuation of the resources provided to the
organization. If an a gency’s enforcement eorts
receive publicity that engenders public support,
its budget probably will be protected and perhaps
increased. If the agency, however, is perceived to be
overzealous or acting inappropriately, its appropria-
tions may be reduced, and in extreme situations the
agency may be abolished or its f unctions may be
transferred to another organization.
A second goa l, closely related to the rst goa l,
is to develop an enforcement strateg y to achieve
full compliance with environmental laws. Such a
strategy never will be completely successful because
in our society enforcement eorts are limited by
concern for democratic principles a s expressed in
the protections aorded by the U.S. Constitution
and state constitutions. Achieving ful l compliance,
moreover, requires dealing with smal l sources,
which could require the monitoring of millions of
releases of pollutants to the environment. When
sources to be monitored increase, the restrictions
imposed by the limited resources avai lable to an
enforcement agency force it to prioritize its eorts
in order to maximize compliance with environ-
mental laws.
e third goal of an environmental law enforce-
ment program is to punish violators. is may be
accomplished by sanctions imposed by the enforce-
ment agency, or it may involve the use of more
serious sanctions imposed by the judicial system.
Debarment from government contracts, permit
revocation, requiring “supplemental environmen-
tal projects,” and mandatory audits are examples of
other enforcement tools. Requirements to clean up
or restore ecosystems or to pay damages for harm
to natura l resources ca n dramatically increase the
costs imposed on violators. Punishment is used
both as societal retribution for violating the law and
as a deterrent. e more dicult it is to discover
a violation the more Draconian the punishment
must be to achieve deterrence. If 100% detection of
a violation is achieved, then a punishment slightly
more serious than the benets to the perpetrator of
the violation will be sucient to prevent the unde-
sired behavior. But, if detection is unlikely, even
serious penalties may not prevent violations. How
many people will obey a stop sign located on a little
used highway in the middle of a desert? How seri-
ous would the penalt y have to be to achieve 100%
compliance? Moreover, for environmental agencies
to impose stringent penalties requires signicant
resources to be allocated to enforcement eort.
In recent years there has been a signicant
strengthening of criminal penalties in the environ-
mental eld due to at lea st two factors. First, t he
increase in the number of regulated sources makes
detection more dicult; t herefore, pena lties e sca-
late as part of the government’s eort to obtain
compliance. Second, some environmental viola-
tions are incapable of being deterred by anything
less than criminal prosecution. e large prot
to be made by the illegal dumping of hazardous
wastes or improperly removing asbestos contain-
ing material, for example, attracts violators who are
unlikely to be deterred unless incarcerated. But,
Page 254 Air Pollution Control and Climate Change Mitigation Law
as the use of criminal sanctions increa ses, enforce-
ment budgets must increase or other enforcement
programs aimed at education, administrative sanc-
tions, etc., must be curtailed. Criminal prosecu-
tion is a powerful method of deterring violations,
but as an enforcement tool its use is limited by the
resources available to the agency.
e fourth goal of an environmental law
enforcement program is to achieve equitable treat-
ment for all sources of pollution to prevent viola-
tors from gaining an economic advantage due to
their noncompliance. A viable enforcement pro-
gram also is nece ssary in order to use self-policing
as the basic enforcement mechanism.1 However,
this goal is subject to the political reality that some
industries, or members of an industry, enjoy su-
cient political power to be exempt from some envi-
ronmental regulations imposed on those without
such political power. e use of political power can
be seen in the environmental statutes that exempt
agriculture, the petroleum industr y, a nd tobacco
from rules that bind those who have less political
power. Aggressive enforcement eorts aimed at
those with signicant political power may result
in enforcement agencies being subject to legislative
retribution. Moreover, at the state and local levels
of government, communities are in competition to
attract new industrial facilities and to keep the jobs
that already exist. ese conditions create a climate
that may result in the relaxing of environmental
enforcement programs.
e ft h goal of an enforcement program is to
use the enforcement process to achieve compliance
as quickly as possible in order to protect public
health or t he environment. is may result in a
conict between the desire to obtain harsh sanc-
tions and get ting the problem resolved in a timely
manner. For example, in 2004 Exxon Corporation
was ordered to pay a punitive ne of $4.5 billion,
plus $2.25 billion in interest for the In re Exxon
Valdez litigation, which had been in the c ourts for
17 yea rs.2 Nevertheless, the ca se continued until
the U.S. Supreme Court in 2008 limited the use
of punitive damages to cases of “enormity” and
reduced the punitive damage award to not exceed
the a mount of compensatory damage s.3 Crim inal
1. See generally Arnold W. Reitze Jr. & Steven D. Schell, Self-
Monitoring and Self-Reporting of Routine Air Pollution Releases,
24 C. J. E. L. 63 (1998).
I), 472 F.3d 600, 37 ELR 20001 (9th Cir. 2006) (Valdez II),
and No. 04-35183 (9th Cir. May 23, 2007) (Valdez III).
3. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (June 25, 2008).
prosecution may result in a protracted legal battle
while the adverse environmental or health impacts
continue. Moreover, for small companies, money
paid for a legal defense, nes, or other sanctions
may limit the money available to pay for abatement
eorts.
e need to balance the competing goa ls of an
enforcement progra m should result in a continu-
ous process of evaluation concerning how to best
harmonize these goals. At the federal level the U.S.
Environmental Protection A gency (EPA) attempts
to implement these goals while protecting a defen-
dant’s constitutional rights t hrough its ru les at
40 C.F.R. Part 22, “Consolidated Rules of Prac-
tice Governing the Administrative Assessment of
Civil Penalties and the Revocation or Suspension
of Permits.”4
Enforcement of environmental laws is primar-
ily based on mandated requirements backed up by
the coercive power of administrative penalties and/
or referrals to civil and criminal judicial tribunals.
ese are known as “command-and-control” mea-
sures. Under the Clean Air Act (CAA) they include
self-monitoring and reporting requirements,
emissions standards, work practice requirements,
technology-based requirements, and technology-
forcing requirements. EPA also uses “carrots” to
reduce pollution by utilizing technical assistance,
public education and outreach, comparative risk
analysis, strategic planning, market incentives,
voluntary a greements, public-private pa rtnerships,
and pollution prevention programs.
Another approach is a punitive economic
approach that sets out targets and allows the regu-
lated communit y to either comply or pay an eco-
nomic penalty. One economic approach is an open
market system based on the theory that if the price
of noncompliance is set at an appropriate level
the desired amount of pollution reduction will be
obtained. However, the total cost to society will be
lower than the cost of using command and control
if a system is created where those with high costs
of compliance can avoid full compliance by paying
those with low costs of compliance to over com-
4. EPA/State High Priority CAA Violation Guidance Issued September
1998, Daily Env’t Rep. (BNA), Oct. 19, 1998, at E-1 [hereinafter
Enforcement Guidance]. See also Cliord Rechtschaen, Deter-
rence vs. Cooperation and the Evolving eory of Environmental
Enforcement, 71 S. C. L. R. 1181 (1998); David B. Spence,
e Shadow of the Rational Polluter: Rethinking the Role of Rational
Actor Models in Environmental Law, 89 C. L. R. 917 (2001);
James Salzman et al., Regulatory Trac Jams, 2 W. L. R.
253 (2002).
Civil Enforcement of the Clean Air Act Page 255
ply. Another economic approach is a closed market
system where a cap is placed on overall emissions
and those subject to the cap trade for the right to
have emissions. e major use of this approach
is found in §§401-416 in Subchapter IV of the
CAA .5 Although EPA has many options to use in
its enforcement eorts, civil penalties are the most
common approach that is used.6
§2. Introduction to Enforcement
About 1,366,634 facilities in the United States are
considered signicant facilities because of their
environmental impacts. ere are about 39,961 sta-
tionary sources of air pollutants, which is about 3%
of the signicant sources. ere are, however, more
than 429,000 regulated hazardous waste facilities
and more tha n 405 underground injection wells
with the potential for relea ses to the atmosphere.
Other facilities regu lated by the CAA include
more tha n 360,000 facilities regulated by t he
mobile source program, more than 94,000 facili-
ties involved with asbestos demolition, and more
than 33,000 dry cleaners.7
An environmental enforcement program is
dependent upon how well the statute used to con-
trol pollution is drafted. For example, the pre-1990
CAA was dicult to enforce because a polluter’s
obligations were based on a state implementation
plan (SIP) that may have been modied many
times. It often was dicult to determ ine t he
responsibilities of a particular source u nder the
applicable SIP. Moreover, EPA and st ate interpre-
tations of the applicable requirements were not
always in agreement. e 1990 CAA Amendments
make enforcement ea sier because requirements for
self-monitoring, reporting, and compliance certi-
cation by sources shift some of the enforcement-
related obligations to the regulated sources. An
expanded subpoena provision in §114 increases
EPA’s ability to obtain information.8 e most
important change, however, is the Subchapter V
operating permit program.9
5. 42 U.S.C. §§7651- 7651o, CAA §§402-416.
6. See generally Robert L. Glicksman & Dietrich H. Earnhart,
e Comparative Eectiveness of Government Interventions on
Environmental Performance in the Chemical Industry, S.
E. L.J. ().
7. O E C A (OECA),
U.S. EPA, FY 98 A R 10 (1999) (EPA
200-R-99-003). See generally LeRoy C. Paddock, Environmental
Enforcement at the Turn of the Century, E. L. 1509 (1991).
8. 42 U.S.C. §7414, CAA §114.
9. Id. §§7661-7661f, CAA §§501-507.
e CAA operating permit program in §504,
added in 1990, identies most of the federa l and
state standards, work practice requirements,
emission limitations, monitoring requirements,
test methods, a nd recordkeeping and reporting
requirements applicable to each source and places
them in an operating permit.10 is make s it easier
to enforce the CAA requirements. It also makes it
easier for citiz ens to k now the requirements appli-
cable to source s and to bring citizen suits using
§304 aga inst violators. Such suits a lso can be
used to pressure government agencies to enforce
environmental laws. e CAA operating permit
requirement is modeled after the national pollutant
discharge elimination s ystem (NPDES) §402 per-
mit program under the Clean Water Act (CWA),
which for many years made the CWA easier to
enforce than the CA A.11
e CAA’s permit program requires operating
permits for major sources, sources subject to haz-
ardous a ir pollution requirements, sources subject
to new source performance st andards (NSPS),
“aected sources” under the Subchapter IV acid
rain provisions, and sources subject to new source
review (NSR) permitting requirements.12 Section
504(c) allows provisions concerning inspection and
entry to be included in the permit. States also may
add additional or more st ringent requirements.
e states usually have the primary responsibility
for enforcing permit requirements; however, EPA’s
regulations at 40 C.F.R. §70.6(b) provide that all
federally required terms and conditions in a permit
are enforceable by the Administrator and citizens.
e CA A provisions for permit shields a nd opera-
tional exibility, which ma ke it ea sier for sources
to adapt to changed conditions and production
changes, however, introduce confusion and u ncer-
tainty concerning the permit requirements.13 us,
there is a tradeo between ease of enforcement and
exibility for the regulated community.14
§3. Enforcement Organizations and
Policies
A source’s ma nagement should be familiar with
the organization and policies of federal and state
10. Id. §7661c, CAA §504.
11. 33 U.S.C. §1342, CWA §402.
12. 42 U.S.C. §7661a, CAA §502.
13. Id. §7661c, CAA §504(f).
14. See James Miskiewicz & John S. Rudd, Civil and Criminal
Enforcement of the Clean Air Act After the 1990 Amendments, 9
P E. L. R. 281 (1992).
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