The Future of Environmental Enforcement

• Date: 01 March 2017

47 ELR 10206 ENVIRONMENTAL LAW REPORTER 3-2017

John Cruden (moderator) is the former Assistant Attorney

General of the Environment and Natural Resources Divi-

sion at the U.S. Department of Justice.

Joel Mintz is a Professor at Shepard Broad College of Law

at Nova Southeastern University.

Michael Vandenbergh is the David Daniels Allen Distin-

guished Chair of Law at Vanderbilt University.

Robert Percival is the Robert Stanton Professor of Law at

the University of Maryland.

John Cruden: Our third and nal panel is on environ-

mental enforcement. We’ve brought together three unique

scholars with three dierent perspectives to talk about

three dierent legal developments.

Joel Mintz is a professor at Shepard Broad College of

Law. He’s written the dening book s on environmental

enforcement and has interviewed more people involved in

environmental enforcement tha n anyone else in the aca-

demic environment.

Michael Vandenbergh is the David Daniels Allen Dis-

tinguished Chair of Law at Vanderbilt and is the co-direc-

tor of their energy and environmental program. He has

also been a successful practitioner and chief of sta  of the

U.S. Environmental Protection A gency (EPA). Michael is

probably the foremost scholar in the nation right now on

the concept of private environmental governance.

Robert Percival is the Robert Stanton Professor of Law

at the University of Ma ryland and the director of their

environmental program. He has written the nation’s lead-

ing casebook on environmental law. Robert is a scholar of

enormous reputation, but he has also been spending a lot

of time in China trying to bring that country into the rule

of law.

Some of you have heard me describe the world of envi-

ronmental enforcement like a giga ntic triangle of activ-

ity—criminal enforcement is at the top, and next would

be federal civil judicial ca ses. But the heart of the tria ngle,

which is cooperative federalism, would be state, federal,

and citizen enforcement. e triangle now needs to add

another dimension, which is the concept of private gover-

nance. It is a great privilege to call on Professor Vanden-

bergh to lead our rst discussion.

Michael Vandenbergh: ank you, John. It is a real honor

to be here. e fact that you all are able to be here and that

John is helping us think about the future of environmental

law is a rea l testament to the strength of the U.S. Depart-

ment of Justice (DOJ) and to its management.

e rst panel discussion, in addition to being really

vibrant, was a remarkably strong setup for what I want to

talk about. e discussion during the rst panel centered

around one core question: what can government do? I agree

that’s exactly the right question if you’re an administrative

law scholar. And it was exact ly the right question if you

were an environmental lawyer in 1970, or 1980, or even

1990. But it’s not the right question anymore if you are an

environmental law yer. Today, t he rig ht question is: what

can any institution do?

I want to give you a sense of what’s going on outside

of government that is relevant to government environmen-

tal lawyers. Nothing in my remarks is designed to sug gest

that public environmental law and public environmental

law enforcement aren’t essential. In addition to my work

on private governance, I have spent more than a decade

researching corporate and individual compliance with

public environmental laws, working with economists, soci-

ologists, a nd political scientists. Despite all of t his work,

I have found nothing that is more insightful than a com-

ment made by Chester Bowles, the head of the Oce of

Price Administration during the Franklin D. Roosevelt

Administration. He essentially said, 2% or 3% of the regu-

lated community are inherently dishonest and are going

to do the wrong thing if they can get away with it, 20%

are going to do the right thing no matter what, a nd t he

remaining 75% will act based on what you do to that 2%

to 3%.

My rst question is: why is someone who ran the Oce

of Price Administration not able to have his percentages

add up to 100%? But put that aside for a moment. I believe

that government and public environmental laws are incred-

ibly important, and the enforcement of these laws is essen-

tial, particularly when directed against that 2% to 3%.

In the past, we have relied on the 20% to do the right

thing when it comes to the environment. We looked to

government to take enforcement actions against the 2%

or 3% in order to drive compliance by the remaining 75%,

but what has begun to happen in the past two decades is

that the 20% is having a greater eect on the 75%. is is

occurring through new developments in the marketplace

of ideas and the actual marketplace itself.

Let’s begin examining the growing role of private gover-

nance by asking a question: which national or subnational

governmental entity made the following announcement?

“We’re announcing a goal to eliminate 20 million met-

ric tons of greenhouse ga s emissions.” It’s actually a trick

question. It wasn’t any kind of governmental entity. It was

Walmart. In conjunction with the Environmental Defense

Fund, Walmart announced that it was making those emis-

sions reductions from its supply chain, including its supply

chain in China, where it has more than 10,000 suppliers.

Did it achieve those reductions? If a recent announcement

is correct, the initiative achieved roughly 28 million metric

The Future of Environmental

Enforcement

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