The current enforcement of environmental laws often violates basic principles of fairness, with perverse consequences for everyone.
- Businesses suffer from the high costs of attempting to comply with vague and ambiguous environmental regulations to avoid prosecution.
- Individuals suffer by being subject to civil and criminal penalties unjustly imposed, and out of proportion to the severity of their violations.
- Government suffers by failing to improve the environment, while spending vast sums of money on sometimes useless litigation efforts.
- We all suffer by having dirtier water, more polluted air and a less clean environment than we should have for the tremendous sums we spend.
Environmental enforcement encompasses the range of measures which government uses to punish noncompliance with environmental laws or regulations. When faced with a violation of environmental laws, enforcement agencies can often choose from a range of options—from administrative action to civil fines to criminal prosecution.
The question is not whether we need environmental enforcement—of course we do. As in any regulatory regime, the possibility of violations exists; wherever there is an intent to harm people or intentionally violate the law, a mechanism for enforcement (and, sometimes, criminal enforcement) must exist. But how do we judge whether a particular enforcement regime, whether for environmental or other laws, is effective and appropriate? Some of the criteria we should use in answering this question are:
- Is it procedurally fair?
- Is there some reasonable relationship between the “crime” and the “punishment”?
- Does it effectively prioritize enforcement efforts, concentrating the most resources on punishing the worst actors and protecting us from the worst risks?
- Do enforcement agencies have appropriate incentives?
- Does the regulated community have appropriate incentives?
These issues exist in some degree for all enforcement efforts, and there's little about environmental law that differs inherently from the issues raised by other substantive areas of the law. Yet environmental enforcement has seldom been held up to the same scrutiny as other government enforcement programs.
The problems of environmental enforcement fall into two main categories:
- The current environmental enforcement system often fails to improve the environment—because of unclear regulations, and because environmental enforcers inappropriately concentrate on technical compliance with regulations and not on improving environmental quality.
- Current environmental enforcement policy often violates fundamental principles of fairness and justice— by using criminal punishments where they're not appropriate, by abandoning traditional concepts of intent and responsibility, and by eroding constitutional protections.
The numbers of cases filed, penalties collected, and years of imprisonment obtained are largely irrelevant to measuring the success of the environmental enforcement program. One would think, from the fact that these figures climb year by year, that American businesses are becoming increasingly lawless and disdainful of environmental protection. Yet the opposite is actually true. Year by year, American businesses improve their environmental record and spend more on environmental protection than in any previous year. What these statistics prove is that the environmental enforcement program is pushing the margins of judicial deference, regulatory interpretation, and strict liability, to achieve essentially meaningless results of greater penalties and more convictions. Environmental enforcement is responding to the first principle of any government bureaucracy: bigger budgets and more employees. New measures of success must be found.
There is no one way to achieve effective and fair environmental enforcement; reality is complicated. The principles to keep in mind, though, are relatively simple. To be effective, an enforcement regime must:
- be clear in what it mandates and prohibits;
- be predictable in how it punishes violations of the regulations, and rely where possible on cooperative, problem-solving approaches; and,
- seek environmental improvement, not numerical enforcement targets.
And to be fair, an enforcement regime must:
- reserve criminal penalties for the morally blameworthy, and punish others with civil or administrative penalties;
- restore specific criminal intent as a necessary condition of a criminal prosecution, and only punish those who are truly responsible for the criminal acts; and,
- respect the Bill of Rights.
Reforms based on these principles would make environmental enforcement more predictable for businesses and more cost-effective for governments. Environmentalists would benefit from these reforms, because a misguided enforcement regime that leads to unjustified punishments is, after all, bad press. The environment need not suffer as a result, and would, in fact, probably improve as the government starts to send a clearer and more consistent deterrent message. Most importantly, these reforms would make environmental enforcement more fair for all concerned.