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Reason Foundation

Environmental Enforcement

In Search of Both Effectiveness and Fairness

Alexander Volokh and Roger J. Marzulla
August 1, 1996

Executive Summary

The current enforcement of environmental laws often violates basic principles of fairness, with perverse consequences for everyone.

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:

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 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:

And to be fair, an enforcement regime must:

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.


Alexander Volokh is Associate Professor of Law

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