Enforcement: It's The Funding, Stupid
| Author | Linda Breggin |
| Position | Senior Attorney in ELI's Center for State and Local Environmental Programs |
| Pages | 10-10 |
Page 10 ❧ THE ENVIRONMENTAL FORUM Copyright © 2011, Environmental Law Institute®, Washington, D.C. www.eli.org.
Reprinted by permission from The Environmental Forum®, May/June 2011
By Linda Breggin
Enforcement: It’s
The Funding, Stupid
The state-federal partnership is es-
sential to ensuring that environ-
mental laws protect human health and
the environment as intended. Yet, we
know surprisingly little from an em-
pirical perspective about the types of
enforcement approaches that work best
and the resources needed to implement
them. is lack of data, however, has not
deterred a decades-long, often conten-
tious political dialogue that focuses on
the relative merits of deterrence-based
enforcement, such as civil penalties,
versus cooperative-based efforts, such as
compliance assistance. EPA’s FY 2012
proposed enforcement budget increase
promises to ensure that this debate con-
tinues. Accordingly, those on both ends
of the political spectrum would benefit
from a better understanding of whether
environmental laws are enforced effec-
tively and efficiently.
Recent research by Professors Victor
B. Flatt and Paul M. Collins provides
some much-needed insights. e au-
thors studied newly available data on
state enforcement actions and environ-
mental expenditures. ey focused on
state programs because, as they explain,
states are “increasingly responsible for
primary enforcement of the environ-
mental laws, which means that their
ability to effectively enforce the stan-
dards and the laws determines if our
environment is protected.”
e authors’ principal finding is that
increased state environmental spend-
ing results in higher compliance rates.
“One cannot get compliance on the
cheap and . . . whether one uses cooper-
ative- or deterrence-based enforcement,
one still must spend money to protect
the environment.” e study further
concludes that “a lack of spending cre-
ates noncompliance rates outside what
the American public would assume or
expect for enforcement of environmen-
tal programs.”
e study also determines that de-
terrence-based enforcement is “impor-
tant in actually creating effective com-
pliance” and that increased resources
result in higher fines. In contrast, the
authors found it more challenging to
evaluate the efficacy of cooperative-
based enforcement. ey were able to
conclude, however, that cooperative-
based enforcement did not result in ef-
fective environmental compliance at a
significantly lower cost.
Interestingly, Flatt and Collins find
that in states governed by ideologically
conservative politicians, larger fines are
assessed for Clean Water Act violations
and facilities remain
out of compliance
with the Clean Air Act
for shorter periods of
time. e study rec-
ognizes that this result
might be surprising,
because conservative
political ideologies are often associated
with cooperative-based enforcement
approaches — which their study indi-
cates are “not particularly effective.” As
a general matter, however, they note
that the ideology of a state’s political
elite does not have as strong of an ef-
fect on compliance as per capita state
spending on the environment.
e authors indicate that a combina-
tion of cooperative- and deterrent-based
enforcement may be optimal, but they
emphasize that in order to understand
more fully the types of state programs
that best foster compliance EPA must
receive data in a uniform manner from
the states. ey propose, for example,
that states could be required to orga-
nize their data to show amounts spent
on environmental programs generally
and specifically on different kinds of
enforcement.
Although some will undoubtedly
take issue with aspects of the study,
their work provides an interesting com-
plement to research conducted by the
Government Accountability Office. In
recent congressional testimony, GAO
explained that EPA has authorized
states to take on enforcement respon-
sibilities, but has not adequately iden-
tified the reasons some state enforce-
ment programs perform poorly. GAO
contends that “EPA has been slow to
improve long-standing problems with
often incomplete and unreliable en-
forcement data.”
In fact, EPA’s 2012 budget includes
“enforcing environmental laws” as
one of its five goals. Noting that data
“strongly indicates that violations are
likely widespread” and that non-com-
pliance with Clean Water Act permits
in some places averages 60 percent,
the budget seeks an increase for en-
forcement and compliance assurance
activities. e increase will allow EPA
to “begin enhancing”
its data systems, which
will enable it and the
states to assess compli-
ance more effectively
and focus resources
more efficiently. No-
tably, the proposed FY
2012 budget also seeks a substantial in-
crease for categorical grants that state,
local, and tribal governments use to
fund their own operations.
Setting aside academic arguments
about optimal compliance rates, non-
compliance as high as 60 percent under
some environmental programs indi-
cates that we have more to learn about
enforcement. Accordingly, although
calls for increased funding may sound
unrealistic in the current political cli-
mate, it seems hard to argue with sup-
porting efforts that will enable us to use
enforcement dollars more wisely.
Linda Breggin is a Senior At torney in ELI’s
Center for State and Loc al Enviro nmental
Programs. S he can be reached at breggin@
eli.org.
A S
Whether deterren ce
based or cooperative,
enforcement cannot be
bought on the cheap
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