Enforcement and Regulatory Governance

Co-authored with David L. Markell.

Enforcement is widely acknowledged to be an indispensable feature of effective governance in the world of environmental protection and elsewhere. Unfortunately, criticisms of the U.S. government’s efforts to enforce the environmental laws began almost with the inception of the Environmental Protection Agency (EPA) more than forty years ago – and they continue virtually unabated today.

In a 2012 report, for example, the U.S. Government Accountability Office(GAO) noted that “EPA has reported that it is not achieving all of the environmental and public health benefits it expected . . . because of substantial rates of noncompliance.” Former EPA Administrator Lisa Jackson acknowledged in 2009 that “the level of significant non-compliance” with various Clean Water Act requirements had grown “unacceptably high.” Even EPA’s enforcement office has admitted significant shortcomings, noting that “violations are . . . too widespread, and enforcement too uneven.”

Assessments have found serious deficiencies in state enforcement performance too. This is a significant weak spot for environmental protection because of the central role that states play in the U.S. cooperative federalism system of environmental protection.

Several looming challenges have exacerbated concerns about enforcement. In many areas of environmental regulation, the size of the regulated community has expanded dramatically, putting additional pressure on government data-gathering, monitoring, and enforcement capacities. For example, the number of point sources subject to CWA permitting requirements, such as those responsible for stormwater discharges and pesticide applications, doubled over a recent ten-year period.

At the same time, government resources to address an expanding regulatory universe have declined. According to theCongressional Research Service, EPA’s funding in fiscal year 2009, adjusted for inflation, was slightly lower than in fiscal year 1978, notwithstanding a significant increase in the agency’s responsibilities during that time frame. EPA’s workforce also declined between 2004 and 2012, even though the overall number of federal employees grew by 14 percent during that period.

EPA is well aware of these challenges and has begun to develop and implement responsive strategies. In 2013, for example, it launched its Next Generation Compliance initiative. This initiative seeks to take advantage of advances in information and emissions monitoring technology to enhance detection, processing, and communication capabilities and bolster the efficiency and effectiveness of environmental enforcement.

In an effort to contribute to the discussion about opportunities to improve compliance, we have recently suggested that EPA and state agencies adopt a multi-layered conceptual framework for structuring enforcement and compliance promotion regimes. While much existing research focuses on one aspect of enforcement or another, such as the need to increase formal enforcement litigation against alleged violators, or the relative effectiveness of deterrence versus cooperation-oriented strategies, we argue that the pursuit of an effective and efficient enforcement and compliance regime demands a broader, holistic approach.

Our effort to develop such an approach begins by identifying five components of an effective enforcement and compliance effort: norm clarity; norm achievability; verifiability; an appropriate mix of sanctions and rewards; and indicia of legitimacy. Each of these components is inter-related. As a result, policymakers designing and implementing an enforcement regime should consider the inevitable trade-offs among the components and make choices that best promote agency priorities and take advantage of available synergies.

In addition, four contextual design issues create ongoing challenges when trying to determine the appropriate content of the five components of effective enforcement. These challenges include: the hybrid character of contemporary governance efforts; the importance of analyzing past performance and future challenges and opportunities; the dynamic character of environmental governance challenges; and the need to prioritize design improvements. Efforts to develop an effective enforcement and compliance promotion regime should consider these challenges in identifying the need for trade-offs and the opportunity for synergies among the five components.

Taking a wide lens approach that incorporates the components of effective enforcement, tradeoffs and synergies between these components, and considers key design issues should help regulators like EPA identify better ways to reinvent their enforcement strategies.

Fortunately, EPA has already taken an approach consistent with our holistic framework. Agency officials have looked beyond ex post enforcement, considering a range of tools throughout the regulatory process that are capable of improving compliance. For example, the agency has observed that fixing problematic regulations, improving operating permits, and strengthening data management in order to enhance the capacity to identify serious problems represent opportunities to improve compliance across the regulatory spectrum. EPA has also pointed to changes in information technology that can contribute to more effective regulation, planning, permitting, and monitoring, and to greater transparency and accountability more generally. These information technology changes, one aspect of the dynamic character of governance that we discuss, deserve special attention in the pursuit of more effective and efficient enforcement and compliance efforts.

Our framework suggests useful ways to supplement EPA’s efforts. To provide one example, EPA’s current reinvention efforts do not appear to consider the role that citizen suits might play in enhancing compliance. Citizen suits are a variation of “hybrid governance,” a contextual design issue that we highlight as vital for regulators to consider. Such suits have the possibility of bolstering enforcement capacity when that is needed, particularly as new compliance-monitoring technologies emerge. At the same time, in some cases citizen suits have the potential to undermine government efforts to address particular alleged violations because of the different interests of private and government enforcers. We recommend that EPA, and other agencies, do more to analyze the use of citizen suits so that federal, state, and private actors can coordinate effectively to improve the chance of inducing desired levels of regulatory compliance.

In short, a holistic view of both different actors and different tools is indispensable to effective enforcement and compliance. A clearer, comprehensive conceptual framework should promote a more holistic – and ultimately more effective – understanding of challenges and opportunities.

David L. Markell is the Steven M. Goldstein Professor and Associate Dean for Environmental Programs at the Florida State University College of Law.

This blog is cross-posted from RegBlog.