Reinventing Environmental Enforcement and the State-Federal Relationship.

• Author: Mintz, Joel A.
• Position: Book Review

Since the early 1990s, disturbing increases in significant noncompliance with federal environmental requirements have been accompanied by, and are perhaps at least partially a result, of a widespread "devolution" of responsibilities for environmental enforcement from federal to state officials along with--particularly, but not exclusively, at the state level--the replacement of formalized, deterrent enforcement with "cooperation-based" approaches to encouraging environmental compliance. In Reinventing Environmental Enforcement and the State-Federal Relationship, Clifford Rechtschaffen and David L. Markell provide deep insights into these events and trends. After perceptively describing the evolution of environmental enforcement and State-federal relationships from the mid-1980s to the present, they advance some well-supported recommendations for improving EPA's lax and inconsistent oversight of state enforcement performance. Their book, which reflects exhaustive research and careful thought, is a very important contribution to the field.

1. INTRODUCTION II. COOPERATIVE FEDERALISM AND ITS JUSTIFICATIONS III. COMPETING STRATEGIES FOR ACHIEVING ENVIRONMENTAL COMPLIANCE IV. THE STATE-EPA RELATIONSHIP: PAST, PRESENT, AND POSSIBLE FUTURE V. CONCLUSION: SOME LARGER QUESTIONS I. INTRODUCTION

   From the standpoint of compliance with pollution control requirements, the 1990s (and the first several years of the current century) have been a troubling, discouraging period. According to the best available data, major discharging facilities were in violation of the Clean Water Act no less than 58% of the time; moreover the rates of "significant non-compliance" for major polluters (as that term is defined by the Environmental Protection Agency (EPA)) stood at 20% for the Clean Water Act and 21% to 28% for the Resource Conservation and Recovery Act. (1) Similarly, more than 39% of all major facilities in five crucial industrial sectors were found to be in violation of the Clean Air Act. (2) These disturbing trends in overall environmental compliance were accompanied by--and perhaps at least partially a result of--a widespread "devolution" of responsibility for environmental enforcement from federal to state officials and the replacement, particularly at the state level, of traditional, formalized deterrent enforcement with one or more "cooperation-based" governmental approaches to encouraging environmental compliance.

   In their remarkable, important new book, Reinventing Environmental Enforcement and the State/Federal Relationship (Reinventing Environmental Enforcement), (3) Clifford Rechtschaffen and David Markell provide deep insights into these events and trends. They examine the evolution of environmental enforcement policy and federal-state relationships from the mid-1980s to the present with clarity and care. In the process, they offer a set of thoughtful, balanced, and well-supported recommendations for improving EPA's oversight of state enforcement performance. These suggestions merit high praise and serious consideration.

   In this review essay, I will summarize and critique the crucial features of Rechtschaffen and Markell's analysis. I will then examine some of the larger issues raised by their fine work, and I will discuss how their suggestions for intergovernmental reforms may be received by the EPA, the states, and other important environmental decisionmakers, over the short and long terms.

2. COOPERATIVE FEDERALISM AND ITS JUSTIFICATIONS

   In the initial chapter of Reinventing Environmental Enforcement, Rechtschaffen and Markell provide a concise, accurate overview of the operation of the federal system in the environmental arena. They describe, in rich and careful detail, the establishment of "cooperative federalism" as the prevailing framework for allocating responsibility between EPA and the states, along with trends in the actual distribution of authority within this framework. In the same chapter, the authors identify and assay, in measured terms, the significant policy arguments that support both the centralization and decentralization of environmental decision making. Finally, they note and evaluate some major constitutional doctrines--such as the Active and Dormant Commerce Clauses, the Tenth Amendment, the Supremacy Clause, and federal preemption--that contain the potential to affect the allocation of power between federal and state authorities.

   This first chapter, which most effectively sets the stage for the evaluative discussions that follow it, is thoroughly researched and briskly written. It summarizes judicial trends and scholarly debates alike with laudable precision and close attention to detail.

3. COMPETING STRATEGIES FOR ACHIEVING ENVIRONMENTAL COMPLIANCE

   Chapter Two of Reinventing Environmental Enforcement shifts the book's focus to the two principal enforcement approaches taken by environmental regulators: a "deterrence-based" approach and "cooperation-based" enforcement. (4) The former is premised on the notion that regulated entities are rational economic actors, who decide to comply with environmental laws when the costs of noncompliance outweigh the benefits of noncompliance. In contrast, the latter approach primarily assumes that corporations are influenced by a mix of civic and social motives, and that they are generally inclined to comply with the law.

   Not surprisingly, deterrence-based enforcement theorists emphasize the importance of likely detection of environmental violations, the swiftness and certainty and appropriateness of punitive sanctions to redress noncompliance, and an awareness of these policies and circumstances on the part of regulated entities. On the other hand, advocates of cooperation-based enforcement favor governmental persuasion rather than punishments and sanctions.

   As Rechtschaffen and Markell explain in straightforward, comprehensive terms, enforcement based upon cooperation can encompass a number of different kinds of programs. These include "compliance incentives," which encourage firms to engage voluntarily in self-policing activities such as environmental auditing and environmental management systems. (5) They also include "compliance assistance" through governmental...