The Relative Efficacy of Coercive and Cooperative Enforcement Approaches to Water Pollution Control
| Author | Robert L. Glicksman and Dietrich H. Earnhart |
| Profession | J.B. & Maurice C. Shapiro Professor of Environmental Law, The George Washington University Law School/Professor of Economics and Direct of the Center for Environmental Policy, University of Kansas |
| Pages | 79-119 |
79
Chapter 4:
The Relative Efficacy of
Coercive and Cooperative
Enforcement Approaches to
Water Pollution Control
Robert L. Glicksman* and Dietrich H. Earnhart**
I. Introduction
For decades, scholars and environmental policymakers have debated the
comparative merits of two dierent approaches to enforcement of regula-
tory programs, and of environmental regulatory programs in particular.1
One approach, called the coercive or deterrence-based approach, is typically
characterized by t he use of traditional enforcement techniques, such as issu-
ance of injunctions and the imposition of monetary penalties, in an eort to
make it less c ostly for regulated entities to comply with, rather than violate,
their regulatory responsibilities. Regulated entities are expected to respond
as rational prot maximizers and to obey the law as long as it is in their best
economic interest to do so.
e other approach, called the cooperative or compliance-a ssistance
approach, shifts away from adversarial disputes in legal forums to construc-
tive collaboration. It is based on the premise that t he conduct of regulated
entities is driven by more than a desire to maximize prots, and that these
entities respond to external factors, including civic and social norms, in mak-
ing regulatory compliance decisions. Regulators following the cooperative
approach seek to draw on these external incentives to bring regulated entities
1 See Lesley K. McAllister, Regulation by hird-Party Verication, 53 B.C. L. R. 1, 14 (2012) (referring
to long-running debate in the regulatory enforcement literature whether a coercive, deterrence-based
approach or a cooperative, persuasive approach is more eective); Robert L. Glicksman & Dietrich H.
Earnhart, Depiction of the Regulator-Regulated Entity Relationship in the Chemical Industry: Deterrence-
Based vs. Cooperative Enforcement, 31 W. M E. L. P’ R. 603, 623-24 (2007).
* J.B. & Maurice C. Shapiro Professor of Environmental Law, e George Washington University Law
School.
** Professor of Economics and Direct of the Center for Environmental Policy, University of Kansas.
80 Next Generation Environmental Compliance and Enforcement
into compliance w ith applicable lega l requirements, a nd are willing to pro-
vide assistance to these entities instead of imposing sanctions on them if such
assistance provides the most promising pathway toward f uture compliance.
Indeed, proponents of the cooperative approach c ontend that a ggressive,
deterrence-based compliance can be counterproductive if regulated entities
react by becoming intransigent in their compliance practices in response to
perceived unfair treatment by regulators.
e debate is critically important to the eectiveness of a wide array
of reg ulatory regime s, as reected in the diversity of contexts in which it
has been waged. It is of course releva nt to environmental enforcement, the
focus of this book.2 In the context of occupational hea lth and safety regula-
tion, some scholars have concluded th at deterrence-based approaches a re
less eective in reducing workplace injuries than cooperative enforcement
strategies that rely on infrequent but intense punishment.3 Others have
asserted that, although a mix of cooperation and punish ment can maxi-
mize employer enforcement, “excessive reliance on cooperation is li kely to
be counterproductive.”4 Recent anecdota l accounts are c onsistent with this
concern. A 2013 invest igative report, for exa mple, deta iled the existence of
extensive health problems in the A merican workplace and t he diculties
that government regulators have encountered in seeking to increase compli-
ance rates.5 e report identied several possible reasons for the persistence
of violations of standa rds designed to abate long-term health risks to employ-
ees, including agency resource shortages. Among these, however, was the
possibility t hat regulators working for the Occupational Safety and Health
Administ ration (OSHA) “undermined their ow n le verage by slashing t he
2 See, e.g., Michael Faure, Eectiveness of Environmental Law: What Does the Evidence Tell Us?, 36 W.
M E. L. P’ R. 293 (2012); David L. Markell, e Role of Deterrence-Based Enforce-
ment in a “Reinvented” State/Federal Relationship: e Divide Between eory and Reality, 24 H.
E. L. R. 1 (2000); Cliord Rechtschaen, Deterrence vs. Cooperation and the Evolving eory
of Environmental Enforcement, 71 S. C. L. R. 1181 (1998); Ronald H. Rosenberg, Doing More
or Doing Less for the Environment: Shedding Light on EPA’s Stealth Method of Environmental Enforce-
ment, 35 B.C. E. A. L. R. 175 (2008); David B. Spence, e Shadow of the Rational Polluter:
Rethinking the Role of Rational Actor Models in Environmental Law, 89 C. L. R. 917 (2001).
3 See, e.g., John T. Scholz & Wayne B. Gray, OSHA Enforcement and Workplace Injuries: A Behavioral
Approach to Risk Assessment, 3 J. R U 283 (1990).
4 Sidney A. Shapiro & Randy S. Rabinowitz, Punishment Versus Cooperation in Regulatory Enforcement: A
Case Study of OSHA, 49 A. L. R. 713, 715 (1997). See also Orly Lobel, Interlocking Regulatory
and Industrial Relations: e Governance of Workplace Safety, 57 A. L. R. 1071, 1112 (2005)
(urging mix of cooperation and deterrence, but warning that “[t]he introduction of a new range of
cooperative-based programs must not imply a regime of “business-friendly” permissiveness” and that
“too much cooperation can undermine enforcement”).
5 Ian Urbina, As OSHA Emphasizes Safety, Long-Term Health Risks Fester, N.Y. T, Mar. 31, 2013,
at 1.
Coercive and Cooperative Enforcement Approaches 81
size of penalties in hopes of promoting cooperation from the compa ny.”6
e same report quoted the Assistant Secreta ry of Labor for Occupationa l
Safety and Hea lth, who posited that “[i]f the cost of compliance to our rules
outweighs the penalties for breaking them, companies c an just take a ‘catch
me if you ca n’ approach to worker health and safety.”7 Taken together, this
analysis reec ts a perception that, at least for one regulatory program, exces-
sive reliance on the c ooperative approach and inadequate resort to coercive
devices contributed to serious noncompliance with workplace safety rule s,
to the detriment of A merican worker s.
Similar debates have played out in studies concerning food and drug
law,8 antitrust law,9 labor law,10 securities regulation,11 nancial and banking
regulation,12 and white collar crime.13 e literature on the merits of the two
enforcement approaches is particularly rich with respect to tax law.14 As one pro-
6 Id. at 13. e article also indicated that inspectors sometimes suggested abatements but failed to do
follow-up inspections or tests.
7 Id.
8 See, e.g., Meredith Todd Vera, Comment, Regulatory Swords at Slay Mad Cows: EU and U.K. Animal
Feed Restrictions as Guides for the FDA, 40 T. I’ L.J. 299, 321 (2005) (arguing that “the positive
attributes of deterrence regimes are far too valuable to be entirely supplanted” by nonadversarial, co-
operative techniques); Diana Crumley, Note, Achieving Optimal Deterrence in Food Safety Regulation,
31 R. L. 353, 395 (2012) (supporting application of the theory of optimal deterrence, and thus
social welfare maximization, as one way to approach food safety regulation, and urging Congress to
expand the authority of the Food and Drug Administration to assess civil penalties and nes).
9 Compare Christine Parker, e “Compliance” Trap: e Moral Message in Responsive Regulatory Enforce-
ment, 40 L S’ R. 591, 595 (2006) (discussing use of “a responsive regulatory pyramid of
enforcement strategies”); omas (Tim) Greaney, irty Years of Solicitude: Antitrust Law and Physician
Cartels, 7 H. J. H L. P’ 189, 205 (2007) (“Weak sanctions and a failure to adjust
tactics in the face of blatant violations appear to have contributed to a lack of moral commitment to
compliance with antitrust law by physician leaders and their advisors.”).
10 See Virginia E. Harper Ho, From Contracts to Compliance? An Early Look at Implementation under
China’s New Labor Legislation, 23 C. J. A L. 35, 103 (2009) (“Even if stronger deterrent
strategies are introduced, existing cooperative administrative enforcement approaches that are exible
and focused on education and compliance provide an important complement.”).
11 Amanda M. Rose, Reforming Securities Litigation Reform: Restructuring the Relationship Between Public
and Private Enforcement of Rule 10b-5, 108 C. L. R. 1301,1363 (2008) (arguing that private
enforcement of the securities laws “threaten[s] to overdeter and . . . frustrate the Commission’s abil-
ity to eectively engage in discretionary nonenforcement and cooperative regulation”); Lawrence A.
Cunningham, Beyond Liability: Rewarding Eective Gatekeepers, 92 M. L. R. 323, 386 (2007)
(“We have learned in recent decades that positive incentives may be more likely than negative threats
to promote desired behavior. at insight can and should be adapted to promote eective capital
market gatekeeping.”).
12 See, e.g., Marianne Ojo, Building on the Trust of Management: Overcoming the Paradoxes of Principles
Based Regulation, 30 No. 7 B F. S P’ R. 1, 2 (July 2011) (discussing argu-
ments for both deterrence and “responsive” regulatory strategies).
13 See, e.g., Sally S. Simpson, Making Sense of White-Collar Crime: eory and Research, 8 O S. J.
C. L. 481, 488 (2011) (urging consideration of “multiple crime prevention strategies,” including
those based on deterrence and cooperative interventions); William S. Laufer, Corporate Crime and
Making Amends, 44 A. C. L. R. 1307, 1310-11 (2007).
14 Compare Dennis J. Ventry, Cooperative Tax Regulation, 41 C. L. R. 431, 436 (2008) (urging
“an approach to tax regulation based on cooperation, information sharing, and interest convergence”
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