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

Date01 June 2016
“Running on
Fumes”: The
Development of
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.
EPAs 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 EPAs 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 EPAs 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®,, 1-800-433-5120.

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