Environmental Enforcement: The Impact of Cultural Values and Attitudes on Social Regulation
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31 ELR 10906
ELR
NEWS&ANALYSIS
8-2001
Environmental Enforcement: The Impact of Cultural Values
and Attitudes on Social Regulation
by James A. Lofton
T he process of protecting the environment is big busi-
ness. The U.S. Environmental Protection Agency
(EPA) is now the federal government's largest regulatory
agency, with 18,000 employees and a budget of $7.8 billion
for fiscal year (FY) 2001. Complying with the laws and reg-
ulations that EPA is charged with upholding is even bigger
business. Compliance costs induced by environmental regu-
lations in the United States are estimated to have cost the
regulated community $180 billion in 1999.1 Thus, there is
cause for keen interest among the regulated community, leg-
islators, and commentators about how EPA goes about its
business. In recent years, EPA has been under considerable
criticism by business leaders, and their supporters in state
governments and the Congress, for being too heavy-
handed-too aggressive, too quick to sue, and too ad-
versarial with those it regulates. As a result, an effort is un-
derway to attempt to reform EPA and how it does the work
of protecting the environment and ensuring compliance
with environmental laws. Reformers want to make EPA
more user friendly. EPA's critics say that if EPA were to
take a more cooperative approach, the regulated community
would be more receptive and less hostile to environmental
regulation. The argument is that if EPA functioned more as
an adviser and less as an environmental policeman, the same
goals could be met at less cost. The logic is that an ethic of
trust and cooperation would be forged that fosters openness,
and a spirit of partnership would emerge that would replace
the old command-and-control paradigm.
In contrast to the enforcement program in the United
States, the United Kingdom has a long tradition of working
cooperatively with British industry in social regulation in-
cluding environmental compliance. This Article examines
how the American and British versions of environmental
compliance assurance and enforcement evolved and shows
that cultural, social, and historical differences account for
The author is an Atlantic Fellow in Public Policy, Cambridge University.
He thanks Clifford Rechtschaffen, of Golden Gate University School of
Law, and Joanne Scott, a member of the Faculty of Laws at Cambridge
University, for their review and comments.
1. Paul R. Portney, Environmental Policy in the Next Century, in SET-
TING NATIONAL PRIORITIES: THE 2000 ELECTION AND BEYOND
359, 366 (Henry J. Aaron & Robert D. Reischauer eds., 1999).
2. See Clifford Rechtschaffen, Competing Visions: EPA and the States
Battle for the Future of Environmental Enforcement, 30 ELR 10803
(Oct. 2000) [hereinafter Rechtschaffen, Competing Visions]; Clif-
ford Rechtschaffen, Deterrence Versus Cooperation and the
Evolving Theory of Environmental Enforcement, 71 S. CAL. L. REV.
1181 (1998) [hereinafter Rechtschaffen, Deterrence Versus Cooper-
ation]; Rena . Steinzor, The Corruption of Civic Environmentalism,
30 ELR 10909 (Oct. 2000); Rena I. Steinzor, Reinventing Environ-
mental Regulation: The Dangerous Journey From Command to
Self-Control, 22 HARV. ENVTL. L. REV. 103 (1998) [hereinafter
Steinzor, Reinventing Environmental Regulation].
both the divergences in the systems and the efficacy of the
system in each country.
U.S. Environmental Enforcement: The Legacy of
Command and Control
A Deterrence-Based Approach to Environmental
Regulation
Throughout EPA's 30-year history, America's environ-
mental improvements have been attributable to a strong set
of environmental laws and consistent enforcement of those
laws. As is aptly written in EPA's Operating Principles for
an Integrated EPA Enforcement and Compliance Assur-
ance Program,
Throughout the past twenty-five years, the EPA has re-
lied on a strong, aggressive enforcement program as the
centerpiece of its efforts to ensure compliance with na-
tional environmental laws. This approach has served the
nation well, and has created a culture of environmental
compliance that is unsurpassed in the world.3
EPA's enforcement program traditionally has been based
on a philosophy of deterrence. [G]ovemment must maxi-
mize its effectiveness through deterrence, publicizing cases,
and support of effective efforts by citizens and all levels of
government.4 As explained in two thorough articles by
Prof. Clifford Rechtschaffen, one of which was published in
The Environmental Law Reporter, deterrence-based en-
forcement has as its central goal the punishment of wrong-
doers. If a rule is broken, it merits sanctioning. Typically, in-
spections by EPA enforcement staff are designed to detect
noncompliance and gather evidence for use in enforcement
cases.5 EPA enforcement staff and trial attorneys handling
enforcement cases at the U.S. Department of Justice (DOJ)
have been unapologetic in their determination to reward se-
rious noncompliance with environmental laws and regula-
tions with increasingly substantial fines that are meant to
send a message to the regulated community-noncompli-
ance with environmental requirements will be penalized
and the penalties will be higher than making the appropriate
investments in time and effort to comply with the rules and
laws that protect the environment.
3. U.S. EPA, OPERATING PRINCIPLES FOR AN INTEGRATED EPA EN-
FORCEMENT AND COMPLIANCE ASSURANCE PROGRAM (1996),
available at http://epa.gov/oeca/princip/html (last modified Feb. 25,
1998).
4. Id.
5. See Rechtschaffen, Competing Visions, supra note 2, at 10803;
Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at
1186-88.](ViewImageLocal?handle=hein.journals/elrna31&div=98&collection=&method=preview&ext=.png&size=3)
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Environmental Enforcement: The Impact of Cultural Values and Attitudes on Social Regulation
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