Professor Joel A. Mintz, of Nova Southeastern University Law School has written an informative and important book: Enforcement at the EPA: High Stakes and Hard Choices.
This comprehensive, highly readable volume holds value for anyone concerned with environmental improvement in the United States, the evolving role of law enforcement, and 21st century public administration.
Enforcement Central to US Environmental Progress
Why a book on environmental enforcement?
If environmental improvement has been a great, all too often unheralded accomplishment of the past two generations, law enforcement has been insufficiently recognized as a driver of that ongoing progress.
One can well recall a time, not long ago, when American CEOs routinely recited talking points asserting that the environmental laws were, necessarily, a competitive burden. Enforcement, where the laws directly engage the marketplace, was resented if not resisted.
Now it’s routine for successor generations of CEOs to declare their fidelity to environmental stewardship. Many tout their companies’ achievement of high government standards, such as those of California. Increasingly, companies now move in advance of imminent government regulation, particularly in respect to chemicals.
Enforcement has been a powerful driver. By the late 1980s, and accelerating in the Internet era, brand value can be damaged by enforcement actions. In fact, the prospective costs to brand value may well dwarf the immediate liabilities from enforcement in a given case.
The rewrites of the major environmental statutes in the mid-1980s, completed with the passage of the Clean Air Act Amendments of 1990, increasingly affixed liability for externalities on individuals, companies and government agencies. So, too responsibility was attached to high corporate officials.
This story is important. It should be examined and discussed in debates about environmental priorities.Enforcement at the EPA is an indispensable guide to the mechanics of how enforcement works, what its real-world possibilities and limitations are.
Leadership, Management Lessons
Professor Mintz distills key lessons:
Presidential Commitment Matters. Ironically, in light of its tragic, lawless conclusion, the Nixon Administration instilled an enforcement strand into the Agency’s DNA from its conception in 1970. Surprising to many, though not missed by Professor Mintz, President George H. W. Bush had the strongest public commitment to EPA enforcement of any president since. This flowed directly from the 1988 election. In that now-distant time, he and Governor Dukakis sparred over who would earn the title: “the environmental president.”
As assistant administrator for enforcement in the George H.W. Bush administration, I maintained copies of the president’s statements in my office. His words helped settle many an argument with stakeholders in and outside the Agency.
The president’s commitment reached many places. Implementing began with Chase Untermeyer, the savvy head of White House Personnel, who methodically aligned personnel choices with the Bush policy directives.
Numerous appointees backed the EPA enforcement program. White House Counsel Boyden Gray and his deputy John Schmitz made their influence felt in various, consequential ways, most notably in the Clean Air Act Amendments of 1990. Robert Grady, who had helped draft some of the campaign speeches that underscored environmental enforcement, supported the program in his role as deputy to Richard Darman at the Office of Management and Budget.
EPA Administrator William Reilly instilled the presidential commitment to vigorous enforcement into his conception of the agency’s vision and mission. The Deputy Administrator, F. Henry “Hank” Habicht brought a stellar record from prior service as the head lawyer for what was then the Lands Division at the Department of Justice. In turn, he had highly intelligent, energetic aides with relevant experience, Raymond Ludwiszweski and Nancy Firestone.
For the Department of Justice, President Bush selected the brilliant Richard Stewart to head the Lands Division, backed by the relentless George van Cleve.
In sum: public commitments by presidents matter. A lot.
The Enforcement Mission Must be Articulated Strongly Within the Agency. Over the course of several administrations of different political pedigrees, enforcement effectiveness has been hobbled by an absence of unambiguous management commitment. This has had baleful consequences throughout the agency’s culture. In turn, it’s felt among the various, diverse stakeholders whom EPA serves. Inevitably, the muddied waters require or occasion demands for case-by-case intervention. The result is an appearance of inappropriate political influence, or even cronyism. The reason for EPA enforcement to exist is to serve as the ultimate guarantor of the environmental protection mission. When that is clearly, continuously articulated, enforcement works and the agency thrives.
Enforcement Binds All of EPA’s Functions. It is not an accident that effective EPA administrators such as William Reilly and William Ruckelshaus, and regional administrators such as Val Adamkus and Wayne Nastri placed enforcement at the foundation of their public agendas from day one. The political challenges of strict enforcement are obvious. The institutional significance may be somewhat less so but is not less important for that. Predictable enforcement is a force for simplification of regulations and statutes. The more complex a law is, the more challenging it is to enforce. That feedback mechanism is important. It is attenuated by opportunistic improvisation, which opens the road to the appearance or reality of favoritism. So, too, vigorous enforcement empowers the forces for environmental stewardship in companies and government agencies who must factor environmental liabilities into their operations. In that most overused but apt characterization, it levels the playing field, ensuring that compliance becomes a competitive advantage.
Vigorous Enforcement Creates Credibility for Reform, Policy Innovation. It is essential that enforcement be innovative. This is all the more important when most of the underlying statutes have not been fundamentally reviewed or revised in the legislative process for a generation. A problem can arise when new appointees, motivated by abuses or dysfunction they have encountered, attempt to make changes before their stewardship has established a track record of strict enforcement. The result is a perception, or perhaps a reality, that reform and enforcement are incompatible.
The strong enforcement record achieved in 1989-91 made numerous innovations and new directions credible. A major example was the issuance of “Supplemental Environmental Projects” guidance, 25 Environmental Law Reporter (Environmental Law Institute.) 35,607, at 35,607 (Feb. 12, 1991). This policy was controversial at the time of its issuance. It has proved enduring, and continues to evolve.
The Enforcement in the 1990s Project cited by Professor Mintz, laid the groundwork for a number of short- and long-term innovations. Among them was expanded cross-media enforcement, both for its own sake and as an underlying driver of ongoing organizational reform. The latter is seen in its logic of unified data and information systems, pointing toward unified regulations and statutes.
Presidential Appointees Have More Management Authority Than Is Generally Recognized. Other than in a crisis, it is in the beginning of a presidential administration that the greatest changes can be accomplished. Unfortunately, that window is often missed. One reason is delay in the Senate confirmation process. Another is that new presidential appointees are often unschooled in management generally, public management in particular. They may be distracted or immobilized by the widespread assumption that the personnel management system is simply impossible to navigate.
To be sure, it’s not easy. But much more can be done than is often understood. In 1989-91 the Office of Enforcement in 1989-91 attracted and placed outstanding individuals from outside the agency. Brian Runkel, an exceptionally intelligent lawyer and energetic manager joined from big firm private practice. William Frank brought years of highly respected legal and journalistic experience from the Bureau of National Affairs. The highly regarded Scott Fulton moved from the Department of Justice. Kathie Stein made her way from the Environmental Defense Fund. Earl Devaney would take over the newly expanded criminal program, after an exemplary career with the Secret Service.
View the Career Enforcement Staff as an Asset. Newly minted presidential appointees often view career staff with suspicion. This can be heightened when the appointees represent an administration seeking to make significant changes. Republican officials may feel this most keenly in our era, but many Democrats harbor similar reactions.
Examples of high performers making new contributions include Michael Walker, who became head of toxics enforcement. Edward Reich and Gerald Bryan applied their incomparable expertise and experience to the range of issues.
The dedicated career staff were invaluable in driving the office to simultaneously increase outputs in terms of high-value actions, while making significant personnel and organizational changes. Indeed, it is hard to imagine it could have been accomplished otherwise.
Work Closely With Your Article One Stakeholder. The framers of the Constitution empowered Congress in Article One for a reason. They’re the closest to the people from whose consent all federal government power is derived. EPA enforcement may not always have a starring role within the agency, but it’s invariably center-stage before Congress. EPA enforcement is most effective when it strives to find ways to work with, rather than against Congress. The short-term satisfactions that might be gained from ignoring congressional overseers can be costly indeed. As in so many things, breakthroughs often come at unanticipated times, in unexpected ways.
For example, the Pollution Prosecution Act of 1990, a historic expansion and redirection of criminal enforcement, was the result of close executive-legislative cooperation. It was made possible by committed legislators and their outstanding staff, including William Bonvillian and Joyce Rechtschaffen with newly elected Senator Lieberman (a former Connecticut attorney general with extensive relevant experience), House Energy & Commerce Committee Chairman John Dingell’s fine staffer Richard Frandsen (whom I regard as the best enforcement chief that EPA never had), and Edward Heidig with Senator Wilson (the former mayor of San Diego with memorable mastery over the range of environmental matters). So, too, the Clean Air Act Amendments of 1990 benefited from close legislative-executive cooperation that coexisted alongside inevitable public disagreements and partisan positioning.
The EPA Enforcement Office Must Assert Its Voice. There is no one way that EPA enforcement capacities need to be organized so as to be most effective. A danger is that the agency, in asserting that enforcement is everyone’s business, will render it no one’s ultimate responsibility. The enforcement office—currently saddled with the unfortunate, bureaucratic name, Office of Enforcement and Compliance Assurance—best serves when it asserts its authority and accepts accountability. This is in the interest of internal and external stakeholders generally, though they may individually resist changes that would sunder longstanding relationships or customs they view as beneficial. At times the enforcement office appears to have surrendered its authority as the client, the decision-maker vis-a-vis the Department of Justice. At times it has ceded too much authority to the EPA program offices who have been granted significant resources under the enforcement rubric. At times the office appears to have had dysfunctional relationships with the regional offices who face local pressures against strict application of the law. Taking on such entrenched interests—which is generally only an intermediate step toward ultimate enforcement results– generates organizational friction. To that extent, such friction is a necessary part of a properly functioning EPA.
Deploy All Appropriate Authorities, Work With Panoply of Stakeholders. Stakeholders, stakeholders, everywhere. Truly no one walks alone to accomplish environmental compliance in a continental nation of extraordinary enterprise. Citizens groups can be an important adjunct. Business competitors to likely violators can add surprising value. State attorneys general are essential allies.
Because environmental protection is a relative latecomer as an organizing principle of government, various agencies have responsibilities with significant environmental significance. EPA enforcement can scale its impact in coordination with other agencies with related missions, such as OSHA.
Not surprisingly in the Information Age, among the most important authorities, from the point of view of achieving results, relate to information gathering and disclosure. The Emergency Planning and Community Right-to-Know Act, drafted and enacted as part of the 1986 Superfund re-authorization and reform, has only begun to reach its potential. In our time, information can empower more and more stakeholders who support the agency’s mission.
Public Communication Matters. One of the great challenges of environmental enforcement is that resources are often outstripped by the magnitude of the statutory responsibilities. This may be all the more true as compliance issues continue to evolve from a focus on centralized, high-volume industrial emitters, to decentralized sources, such as small businesses. Both for education purposes for those seeking to do the right thing, and for deterrence for those tempted to do the wrong thing, public communication is of great significance. William Frank, an outstanding environmental lawyer and journalist, joined the enforcement office in 1989. He was instrumental in making communication a recognized, customary part of civil and criminal enforcement.
Each assistant administrator for enforcement has cases which result in serious attempts to have one fired by the president. One of mine was orchestrated by one of the nation’s most respected companies, which was frustrated by our office’s determination that their admitted violations be made part of the public record. In subsequent years, reflecting the power of social media and the rising public consciousness of environmental stewardship, public information policies are ever more central to the enforcement mission.
The Future of Federal Law Enforcement
Professor Mintz closes with useful chapters examining cross-cutting issues: regulatory capture and the decline of the U.S. civil service. Each of those topics merits detailed consideration. Enforcement at the EPA is a good starting point.
In this reader’s view, traditional notions of regulatory capture may be inadequate to capture the totality of change underway in American law enforcement generally in recent years. As the Special Interest State has taken hold, enforcement has increasingly lost its historic, unique status; it’s increasingly viewed as just another part of the political process. Regrettably, environmental enforcement is no exception.
The American environmental statutes are now rather long in tooth. Major reconsideration, reflecting updated knowledge and experience since the 1970s and 1980s is overdue. One part of that reconsideration might well be a unification of environmental enforcement authorities.
Without waiting for full-scale civil service reform, there could be value in enhanced, practical management training for incoming EPA enforcement appointees in new presidential administrations. Structured give-and-take with current and former officials could help new leadership find its footing quickly, in the beginning of new terms when they can reliably undertake the most far-reaching reforms.
Joel A Mintz | Enforcement at the EPA