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47 Envtl. L. Rep. News & Analysis 10206 (2017)
The Future of Environmental Enforcement

handle is hein.journals/elrna47 and id is 216 raw text is: ENVIRONMENTAL LAW REPORTER The Future of Environmental Enforcement 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 final panel is on environ- mental enforcement. We've brought together three unique scholars with three different perspectives to talk about three different legal developments. Joel Mintz is a professor at Shepard Broad College of Law. He's written the defining books on environmental enforcement and has interviewed more people involved in environmental enforcement than 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 staff of the U.S. Environmental Protection Agency (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 Maryland 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 gigantic triangle of activ- ity-criminal enforcement is at the top, and next would be federal civil judicial cases. But the heart of the triangle, which is cooperative federalism, would be state, federal, and citizen enforcement. The 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 first discussion. Michael Vandenbergh: Thank you, John. It is a real honor to be here. The fact that you all are able to be here and that John is helping us think about the future of environmental law is a real testament to the strength of the U.S. Depart- ment of Justice (DOJ) and to its management. The first panel discussion, in addition to being really vibrant, was a remarkably strong setup for what I want to talk about. The discussion during the first 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 exactly 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 lawyer. Today, the right 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 suggest 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, and political scientists. Despite all of this work, I have found nothing that is more insightful than a com- ment made by Chester Bowles, the head of the Office 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, and the remaining 75% will act based on what you do to that 2% to 3%. My first question is: why is someone who ran the Office 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 effect on the 75%. This 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 gas 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 3-2017 47 ELR 10206

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