States Should Take Lead on Environmental Enforcement, Industry Group Says

Published April 1, 1998

Adding its voice to the growing chorus calling for devolution of environmental decision-making from Washington to state and local governments, an industry group has recommended giving states the lead role in enforcing the nation’s environmental laws and regulations.

“It is time for the Environmental Protection Agency and the Department of Justice to revamp their practices and refocus their activities to find better ways to achieve our nation’s environmental goals,” said Joan Heinz, corporate environmental, health, and safety counsel at Eli Lilly & Co. Heinz is chair of the Corporate Environmental Enforcement Council (CEEC), a group of environmental and legal experts from 17 large companies.

CEEC unveiled on February 20 a package of recommendations aimed at streamlining the nation’s environmental enforcement system. Designed to invigorate the discussion on how best to encourage compliance with environmental statutes, CEEC’s “Platform for Effective Environmental Compliance and Enforcement” offers the following principles:

  • The states should be the primary focus for implementation and enforcement of environmental programs.
  • Federal agency efforts and resources should primarily be devoted to ensuring compliance.
  • Environmental enforcement and compliance efforts must be directed to achieving desired environmental goals.
  • Environmental enforcement should be prioritized at all levels based on the seriousness and nature of the violation.
  • Prosecution of environmental criminal violations should be targeted at intentional violations of clearly enunciated standards that are interpreted and applied in a consistent manner.
  • Self assessment (also known as self-auditing), as well as a qualified immunity where appropriate for voluntary disclosures, should be encouraged as the most effective way to achieve the nation’s environmental goals.

In making its recommendations, CEEC called for new, clearly defined roles for those entities chiefly responsible for environmental enforcement: EPA and its regional offices, the states, and the federal Department of Justice.

EPA, contends CEEC, should focus on the implementation of environmental statutes, in particular on the achievement of environmental goals, “not on the specific method to achieve those goals.”

With respect to compliance, EPA “should focus on the actual performance result that is wanted and the environmental performance metrics that will be used to judge the success of compliance with those goals.” EPA should then coordinate and ensure that “its policies are uniformly understood by the states, thereby providing a nationwide baseline as to what environmental result is desired.”

“Enforcement should become primarily a state function,” the CEEC platform says, “with EPA maintaining a strong presence and the ability to step in if a particular state has demonstrably failed to enforce the environmental laws.”

“EPA should not reflexively consider a drop in enforcement cases as a sign of failure or a signal that there is something wrong with a state program,” the CEEC platform continues. “Rather, EPA needs to acknowledge that an increase in compliance rates is compatible and should not necessarily result in a downward turn in enforcement.”

As EPA’s relationship with the states changes, the role of EPA’s ten regional offices must also be reexamined, the CEEC platform notes.

“In particular, we believe the regional offices are best suited to providing compliance and technical assistance. In essence, the offices should act as technical consultants to states on how best to achieve environmental performance results. Any regional policy-making role should be returned to EPA Headquarters.”

Under the CEEC proposal, the states would be primarily responsible for implementing the operating programs and resulting enforcement programs. The states would commit not only to implementing the programs, but also to actual environmental results. “In this way, CEEC believes that states would be the better arbiters and implementers of how to achieve the national environmental goals,” the platform points out.

The CEEC platform also urges a reevaluation of the Department of Justice’s role. The Department’s resources should be redirected, CEEC contends, to working with EPA to pursue those regulated entities clearly operating outside the system. In addition, the Department’s focus with respect to environmental crimes “should be on those criminal cases that reflect intentional and wilful conduct.”

In addition to restructuring the nation’s environmental enforcement regime, CEEC emphasizes the importance of clarifying environmental rules and regulations. Many regulations are so vaguely written that companies find it difficult to know how they are supposed to comply with a given statute. This is particularly troublesome for small businesses, which cannot afford a battery of lawyers to help them through the maze of environmental regulations with which they must comply.

What makes the situation worse, according to Paul Wallach, counsel to CEEC, is that the various EPA regional offices interpret those regulations differently. And the regions, in turn, often differ with EPA’s Washington headquarters. Many an unfortunate company, with no intention of violating an environmental statute, has been caught in the cross-fire of this regulatory confusion, and fined accordingly.

CEEC plans to take its proposals for enforcement reform to state environmental officials, members of Congress, the Clinton administration, and business groups.