With Compliance Built In

• Author: Cynthia Giles
• Position: Guest fellow at Harvard's Environmental and Energy Law Program and was the head of EPA's enforcement office for all eight years of the Obama administration
• Pages: 27-32

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Reprinted by permission from The Environmental Forum®, May/June 2021.

Copyright © 2021, Environmental Law Institute®, Washington, D.C. www.eli.org.

Cynthia Giles 

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 

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administration.

LEAD FEATURE

With Compliance Built In

Widespread, serious violations are the norm for most enironmental rules. A Next

Generation Compliance approach to regulations can help deliver promised benets

— especially for climate rules, where we cannot aord implementation collapse

Nearly everyone involved in

environmental regulations be-

lieves that compliance with en-

vironmental rules is pretty good

and that it is enforcement’s job

to take care of the rest. You hear

this all the time — from regula-

tors, companies, legislators, academics, and envi-

ronmental advocates.

Both assumptions, that compliance overall is

strong, and the work of ensuring compliance should

be left to enforcement, are wrong. e data reveal

that the rate of serious noncompliance — not just

any noncompliance, but violations EPA denes as

the most important — is typically 25 percent or

more, according to the agency’s data of self-report-

ed and government-identied violations. For many

important rules with big health consequences, the

serious noncompliance rates for large facilities are

50 percent to 70 percent or even higher. And those

are just the ones we know about; for many rules

EPA has no idea what the rates of noncompliance

are because the regulations don’t include any way to

gure that out.

We have also learned that the most important

driver of compliance isn’t enforcement, but the

design of the regulation. If a rule is structured to

set compliance as the default, it can get impressive

on-the-ground results without the need for much

enforcement. Rules that instead include many op-

portunities to evade, obfuscate, or ignore will have

dismal performance records that no amount of

enforcement will ever x. Robust enforcement is

absolutely necessary for any strong compliance pro-

gram, but enforcement alone will never close the

compliance gap created by a poorly designed rule.

Next Generation Compliance, which I launched

at EPA during the Obama administration, is a new

paradigm for environmental rules. It argues that

rules need to be tightly structured to make com-

pliance the path of least resistance. Next Gen rule

design acknowledges that in the messy real world

where we actually live, equipment fails, people

make mistakes, multiple priorities compete for at-

tention and funding, and companies make close —

and sometimes nowhere near close — calls in their

own favor. And sometimes they just cheat. ere is

a mountain of evidence that rules only work if they

nd a way to align private incentives with the pub-

lic good. ese essential truths are the dierence

between a rule that is great in theory — and one

that delivers in real life.

One common misconception about Next Gen

is that it is about making rules enforceable. It isn’t.

Yes, rules should be enforceable, because that’s a

baseline condition that dierentiates a rule from

good advice. But Next Gen goes way beyond that.

It is about creating a structure where the default set-

ting is good compliance — where implementation

is strong even if enforcement never comes knock-

ing.

Compliance isn’t a nice-to-have regulatory extra.

It’s the part that matters. at’s true for every rule.

Standards are ne, but we only get public health