Environmental enforcement in dire straits: there is no protection for nothing and no data for free.

• Author: Flatt, Victor B.

Those charged with drafting and enforcing our environmental laws have had to work with little or no information about whether or not these programs are actually working properly. There are a host of reasons for this, many of them having to do with availability of data that can be examined empirically. Using newly available data on state actions in environmental enforcement, and a new data set of state environmental expenditures which they created, the authors of this Article are able to examine for the first time the relationship between state environmental expenditures and the effectiveness of state environmental enforcement for all permitted sources. They conclude that state expenditures on environmental programs are strongly associated with effective environmental compliance, which has important implications for environmental law and policy. The authors also examine the debate over the effectiveness of cooperative- versus deterrence-based enforcement, relate that to findings on state expenditures, and make suggestions for improving the availability of data and environmental enforcement generally.

INTRODUCTION

While much of the world debates what our environmental laws should be, (1) the less esoteric question of whether the environmental laws we do have are being properly enforced continues to be insufficiently examined. Yet this question is absolutely critical to any discussion of environmental protection or policy. Whether or not one agrees with the goals of our current environmental statutes, determining whether and how environmental laws are enforced is critical to the successful operation of any environmental law, present or future.

The question of how well environmental enforcement works is really the question of whether our environmental laws get the jobs of cleaning the environment and protecting public health done. In a world of limited financial resources, the answer to this question must include whether the job is done in the most effective and efficient way possible. As we approach the fortieth anniversary of modern environmental laws, the answer to this "$64 billion question" still is not clear.

We are told that the environmental laws provide extraordinarily high benefits if enforced properly. In its Draft Report to Congress on the Costs and Benefits of Federal Regulation, the Office of Management and Budget noted that the EPA estimated the total benefits of ten years of Clean Air Act (2) (CAA) enforcement would be $1.45 trillion, and the benefits for enforcement of the more stringent regulation of criteria pollutants since 1990 would exceed costs of $54 billion. (3) Various assumptions exist, however, relating to these estimates. (4) More importantly, we don't know if these laws are being properly enforced. Even though we can identify the many areas where pollution has been reduced and environmental improvements have occurred, we are unable to clearly determine whether we are valuing and protecting the environment in the most cost-effective and efficient way possible.

Numerous commentators have noted that the difference between environmental laws that actually protect the environment and those that do not is highly dependent on whether, and in what way, these laws are enforced. (5) Testing whether we are correctly and/or adequately enforcing our environmental laws, however, has proven remarkably difficult as measures of environmental quality have changed over time and differ between locations. (6) This makes the actual connection between enforcement action and environmental improvements very difficult to ascertain. The possibility of having any more than broad-based measures of actual environmental quality improvements or changes seems so difficult, especially when related to enforcement mechanisms, that their pursuit may be impossible.

Throughout much of the history of environmental law, the assumption has been that vigorous enforcement deters noncompliance with laws, and thus, brings about the desired outcomes. (7) This assumption is reflected in the very structure of the cooperative federalism model for the administration of environmental laws (i.e., if the state is enforcing, it is doing a good job), (8) as well as the theories underlying citizen-suit provisions, which are only necessary when the state or federal government is not fulfilling its enforcement role. (9) However, merely examining the number of such actions taken against noncomplying parties may not tell us much about the overall effectiveness of an environmental program. (10) Because pollution sources may be different and states may utilize different strategies, standards, and penalties for enforcement, it is not obviously apparent that the number of actions taken to bring sources into compliance is a good measure of how effective different enforcement mechanisms may be in reaching statutory goals. (11)

Additionally, recent "second generation" regulatory proponents have suggested that direct enforcement may not achieve effective compliance (and thus, environmental improvements), and that so-called cooperative mechanisms may work better. (12) As defined by Professors Clifford Rechtschaffen and David Markell, authors of a 2003 book about environmental enforcement, cooperative-based enforcement "eschews penalties in favor of persuasion." (13) Cooperative-based enforcement suggests that carrots work better than sticks. "Many states have actively championed this strategy," pushing towards market mechanisms for pollution control, and proposing to change environmental enforcement from primarily deterrence-based enforcement to a cooperative regime. (14) Some of the cooperative-based enforcement literature propounds the theory that in addition to better results, cooperative-based enforcement may cost less, and thus, be a more cost-efficient form of effective environmental enforcement. (15)

Theories regarding different environmental policies and enforcement strategies are important to making environmental protection efficient and responsive to societal needs. So where is the answer to the question of whether we are enforcing our environmental laws in the most effective and efficient ways possible? What is really needed is an empirical examination of which kinds of environmental enforcement strategies work successfully.

The EPA has catalogued a trove of empirical analyses of measured environmental indicators and also of attitudes towards enforcement in the regulated community. Some of these studies (cited below) also try to link these statistically with environmental outcome measurements. (16) Because of the lack of comprehensive data on environmental noncompliance and variables we believe may have an important relationship with enforcement, we attempt to go further and bring something new to this analysis. Good attempts have been made in the past and recently, and upon those attempts, we set out in this Article to gather data and conduct statistical analyses that can take the discussion even further. By using data painstakingly culled from the states and combining them with newly available EPA enforcement data, we put forward some important new conclusions regarding the resource allocation necessary for effective environmental enforcement strategies. (17) Just as importantly, we use the knowledge gained from the process and results of data collection to propose ways that data can be improved to make future analyses of environmental enforcement and progress both easier and more useful. This is not an easy task, especially given the difficulty in data retrieval and usage.

Certain theories on enforcement have political constituencies that may be more concerned with political gain, or with spending money on other priorities, than with cost-efficient and effective environmental regulation. (18) Particularly now, in a time of falling state revenues, many states may not wish to learn that specific resource levels are necessary for effective environmental enforcement, ff the different strategies based on such theories are not held up for empirical testing, however, then legislators, administrators, businesses, and environmentalists will keep asserting their differing views about what works in enforcement and what does not. The citizens and the environment will thus be the ones to suffer. Environmental enforcement strategies incur costs--to the government, regulated industries, and society--when those strategies fail. (19) We have a duty to acquire the best data available to assist in making policy decisions for the benefit of the whole, rather than for a select few.

In this Article, we attempt to answer important questions about approaches to general enforcement across all industry groups, at least partially, and to make recommendations based on these answers. Additionally, we highlight the difficulty in acquiring the data necessary to make these comparisons effectively, and propose a systematic approach for collecting these data that makes enforcement effectiveness, and thus environmental protection, more transparent. In Part I, we will discuss the different enforcement ideas and strategies and what we would like to learn about them. In Part II, we set out the research background, ultimate methodology, and data acquisition chosen to answer these questions. Part III contains our analysis of the results of the statistical analyses, Part IV contains our summary of the core empirical findings and their implications, and Part V sets out the policy prescriptions that can be drawn from this study.

1. ENFORCEMENT STRATEGIES

   1. Theories of Environmental Enforcement

      The issue of the effectiveness of environmental enforcement is an old one that begat the modern environmental laws. Though federalization of environmental laws is supported by the economic theory of controlling all factors in a commons pollution problem, (20) as well as providing a floor of environmental health for all U.S. citizens, (21) much of our modern environmental laws...