Running on Fumes': The Development of New EPA Regulations in an Era of Scarcity

• Date: 01 June 2016

46 ELR 10510 ENVIRONMENTAL LAW REPORTER 6-2016

“Running on

Fumes”: The

Development of

New EPA

Regulations in an

Era of Scarcity

by Joel A. Mintz

Joel A. Mintz is Professor of Law at Nova Southeastern

University, Shepard Broad College of Law.

Summary

EPA’s operating budgets and sta size are at historically

low levels, and the volume of its facility inspections

and civil enforcement cases has dropped. e enforce-

ment resources available to state environmental agen-

cies have also declined considerably. At the same time,

the regulatory and enforcement responsibilities of both

EPA and state agencies have expanded signicantly.

In addition, too many of EPA’s new regulations have

been rejected by reviewing courts on the ground that

they fail to provide regulated parties with fair notice;

beyond this, ambiguous regulations may preclude

enforcement actions altogether or weaken the hand

of Agency personnel in negotiating individual settle-

ments. To correct these problems, EPA’s top managers

need to promote an Agency culture in which enforce-

ment and regulatory enforceability are given added

importance. OECA should cultivate allies in DOJ

and EPA’s 10 regional oces, ght for more resources,

and train new members of the Agency’s enforcement

sta in regulatory development. From the standpoint

of environmental protection, the enforceability of new

EPA regulations is absolutely critical.

Diligent and eective enforcement has long been

recognized as a crucial component of eective gov-

ernmental regulation.1 To succeed, government

enforcement programs must combine several elements,2

including (1) a sucient number of skilled, disciplined

enforcement personnel with appropriate expertise and

good judgment, and (2)a set of regulations draf ted so as

to be understa ndable to al l regulated parties, the agency’s

own sta, and the public at large.3

is Article focuses on those t wo prerequisites to

administrative agency enforcement success in the context

of enforcement and regulation at t he U.S. Environmental

Protection Agency (EPA). In Part I, I consider the extent

and consequences of EPA’s current stang levels as they

impact the day-to-day enforcement of federal pollution

control requirements. In Part II, I describe the “action

development process,” the standard set of procedures that

EPA follows to compose and nalize new Agency regula-

tions. Part III provides some illustrations of a problem that

continues to plague certain EPA regu lations: the absence

of fair notice to regulated parties as to what conduct is

expected of them. In Part I V, I explore the organizational

roots of this problem by describing the roles typically played

by various EPA oces in developing new regulations, and I

assess ways in which the Agency’s internal procedures and

organizational arrangements inhibit the promulgation of

clear, enforceable EPA regulations. I also oer suggestions

for better ensuring clarity in the Agency’s nal rules. Part

V briey concludes.

1. See M H. B, R B  I C-

 224 (Greenwood Press 1977):

e attitude of a commission towards its enforcement responsibili-

ties aects its entire regulatory program. Unless it demonstrates a

capacity to enforce its regulations, they will be honored more in

the breach than in the observance. ose [regulated rms] who

discover that violations go undetected and unpunished will have

little respect for the commission and will violate regulations with

impunity if it is to their nancial or commercial advantage.

2. For a discussion of the components of eective enforcement programs, see

Joel A. Mintz, Assessing National Environmental Enforcement: Some Lessons

From the United States’ Experience, 26 G. I’. E’ L. R. 1 (Fall

2013); and Joel A. Mintz, Measuring Environmental Enforcement Success: e

Elusive Search for Objectivity, 44 ELR 10751 (Sept. 2014).

3. B, supra note 1, at 220.

Author’s Note: Joel A. Mintz is also an Elected Member of the

American Law Institute, a Member-Scholar at the Center for

Progressive Reform, and a Fellow of the American Bar Foundation.

e author thanks former EPA attorney Jon Jacobs, EPA employees

Enesta Jones and Sandra Gerrman, his able student research assistant

Alison Barbiero (NSU College of Law, 2017), and several present

and former knowledgeable EPA ocials, who requested that they not

be identied by name, for their very helpful assistance.

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.