Elgar Encyclopedia of Environmental Law
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Elgar Encyclopedia of Environmental Law

Edited by Michael Faure

The Elgar Encyclopedia of Environmental Law is a landmark reference work, providing definitive and comprehensive coverage of this dynamic field. The Encyclopedia is organised into 12 volumes around top-level subjects – such as water, energy and climate change – that reflect some of the most pressing issues facing us today. Each volume probes the key elements of law, the essential concepts, and the latest research through concise, structured entries written by international experts. Each entry includes an extensive bibliography as a starting point for further reading. The mix of authoritative commentary and insightful discussion will make this an essential tool for research and teaching, as well as a valuable resource for professionals and policymakers.
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Introduction to Volume IV

LeRoy C Paddock, David L Markell and Robert L Glicksman

1 Background

This book addresses the topic of environmental compliance and enforcement from a variety of perspectives. The literature on environmental law has long recognized that effective compliance and enforcement programmes—programmes that are intended to encourage conformance with agency regulations—are essential components of successful regulation. Indeed, the literature recognizes that environmental laws may have little impact in the absence of effective compliance and enforcement programmes. Such programmes currently come in many shapes and sizes. Scholars in a range of disciplines, as well as policymakers, continue to invest considerable effort in improving understanding of the optimal mix of compliance-promotion approaches in different contexts. The mix of approaches to compliance, enforcement and ‘beyond compliance’ tools has expanded significantly in recent years through the introduction of private governance mechanisms such as ‘green supply chain management’, expanding the role of the private sector in compliance and enforcement-like activities.

The contributions to this book, provided by both leading scholars and high-level policymakers, capture many of the types of approaches being used. These include approaches that promote voluntary behaviour, variations of private governance and the use of management systems, common law remedies, traditional ‘deterrence-based’ strategies for violations of statutory law, and hybrid approaches that represent blends of these and other tools. We do not, of course, necessarily embrace all of the strategies discussed in the book or the authors’ respective perspectives in presenting these strategies. Indeed, some of the material presented focuses on strategies with which your editors do p. 2not have much personal familiarity. We have welcomed, and included, such contributions, even though some of the content is beyond our own expertise, because of their importance in terms of the intended reach of this book, which is to present developments in enforcement and compliance from a global perspective.

Before summarizing each of the contributions that comprises the book, we begin by offering a conceptual framework for thinking about effective regulation, including effective compliance. As discussed in the next section, and as we have discussed in more detail in previous work,1 we believe that it is useful to consider the challenge of optimizing regulatory approaches through careful assessment of five key components of such regulation.

2 Five key components of effective regulation

Although it is possible to describe the components of effective regulation in many ways, we think at least five features are relevant to the design of a successful regulatory compliance and enforcement programme: norm clarity, norm achievability, compliance verifiability, an appropriate mix of sanctions and rewards, and indicia of legitimacy.

2.1 Clarity

It is axiomatic that it is important to consider the clarity of regulatory norms in designing effective regulations.2 There are good reasons for regulators to strive to create clear expectations for acceptable (and unacceptable) conduct. It is difficult for a regulated entity to comply with its regulatory responsibilities, or for others to assess whether it has done so, without understanding what those responsibilities are. Participants across the spectrum of interested stakeholders recognize the value of establishing clear standards for regulated parties to meet. Complaints about indeterminacy are heard from regulated parties as well as members of the public.3 The US Government has internalized this message as well, with the head of the US EPA’s enforcement office recently acknowledging that ‘we should focus on greater simplicity and clarity [in our regulations]. One of the principles we have learned over years of hard experience is that compliance is better when the rules are simple and clear’.4 This message is most obviously salient for the development of regulations,5 but it is also important in the development of guidance and the exercise of enforcement discretion.6

p. 3Achieving clarity requires attention during multiple stages of the regulatory process. An obvious starting point is the development of understandable regulatory norms themselves. A second important aspect of clarity, however, involves education, especially education of the regulated community. Studies have shown that extra effort to educate regulated parties about their legal obligations can pay significant dividends in terms of improved compliance.7 A recent Colorado compliance initiative involving hazardous waste rules, for example, found that an innovative state effort to increase understanding of regulatory requirements led to significant improvements in compliance, thereby dramatically reducing the need for enforcement.8

Clarity, however, may also come at a cost. Statutory and regulatory schemes often cover a large number of actors, and not all are similarly situated. Thus, environmental policymakers often need to make choices about whether to use one-size-fits-all approaches or, alternatively, to tailor the treatment of different sub-groups within the regulated community. In some situations it is possible to use fairly bright lines for such tailoring. The Resource Conservation and Recovery Act’s (‘RCRA’) use of thresholds to distinguish between standard generators and de minimis generators is an example.9 Sometimes, however, efforts to regulate ‘fairly’ require much more ad hoc judgments about whether particular members of the regulated community qualify for special treatment. Especially in the latter situations, where there are no bright-line rules or tests, there is a clear tension between clarity and ‘fair’ treatment.10

Regardless of the precise weight policymakers and others attach to clarity as a component of effective regulation in a particular context, it seems relatively uncontested that clarity of norms and expectations is a factor that at a minimum deserves attention in regulatory design.11

2.2 Achievability

A second key component of effective regulation (and compliance regimes) is its capacity to achieve (including the agency’s ability to effectively implement) regulatory requirements. p. 4Using EPA’s terminology, achievability involves the extent to which strategies ‘will work in the real world—rules with compliance built in’.12 A recent example of EPA’s emphasis on achievability in developing a particular regulatory regime relates to the agency’s proposal of emission control regulations for oil and gas producers under the Clean Air Act (‘CAA’). EPA adopted the strategy of allowing producers simply to inform EPA that they are using air pollution control equipment that EPA has certified rather than testing the equipment themselves. EPA explained that its purpose in using this approach was to ‘make compliance easier and less costly, while improving results…’.13

Achievability has not always trumped other values in policy design. In the United States, Congress has at times insisted that regulatory standards be set with little if any attention given to achievability because of the weight it attached to other values, such as attaining a particular level of health or environmental protection. In the environmental laws, for example, Congress in some cases has directed EPA not to consider costs in developing regulatory standards.14 In other regulatory schemes, Congress did not prohibit consideration of cost, but nevertheless made it clear that it was permissible for EPA to attach relatively little weight to it, and apply a relatively loose definition of achievability.15 At least in some contexts, technology-forcing regulatory approaches have been used successfully to substantially improve normatively desired outcomes notwithstanding questions at the outset about the achievability of such approaches.16

Independent of any particular regime, scholars have debated the value of including hortatory language in environmental statutes because of the gap between objectives and likely results. Some suggest that setting the bar high has had a positive influence on performance.17 Others have been more sceptical.18 Regardless of the weight that should p. 5be attached to achievability in the design of any particular regulatory regime, the larger, conceptual point is that, when developing regulatory approaches, it is important to consider the extent to which regulated parties are likely to achieve regulatory standards.

2.3 Verifiability

A third key component of effective regulation and of strategies to induce compliance involves what we term ‘verifiability’. We define verifiability as the capacity to monitor compliance with regulatory requirements.19 There is little question that the ability to monitor compliance with legal requirements is a critical component of effective regulation.20

The major federal environmental regulatory statutes in the United States generally provide broad monitoring authority that includes, at a minimum, authority for the government to inspect an operation’s compliance with regulatory requirements, as well as an obligation for the regulated party to monitor its own performance.21 Yet, monitoring schemes come in various shapes and sizes.22 For example, New York implemented a state-wide strategy that sought to enhance verifiability by requiring facilities with especially significant compliance concerns to hire independent third-party monitors whose role was to complement both government inspection efforts and the facility’s own compliance efforts.23

As a practical matter, the nature and extent of monitoring that occurs is likely to depend on a variety of features of the particular regulatory regime involved, including the availability of government resources; the complexity associated with monitoring compliance and the training required to monitor credibly; the availability, cost, and reliability of monitoring equipment; the trustworthiness of regulated parties and their commitment to self-monitoring; and the capacity of non-governmental interests to participate in monitoring.

Some commentators have highlighted the importance of broader transparency to the public as an aspect of verifiability.24 Transparency can be enhanced in a variety of ways. p. 6For example, the Clean Water Act in the United States requires permittees to submit discharge monitoring reports (‘DMRs’) that demonstrate compliance or noncompliance with legal requirements and, in addition, requires that these DMRs be easily accessible to interested citizens.25 The transparency of the CWA in revealing noncompliance is a principal reason why most of the citizen suit activity against alleged violators of major environmental laws has occurred under that statute.26 Other reporting requirements, such as those for hazardous substance releases above a reportable quantity,27 or pursuant to EPA’s toxics release inventory (‘TRI’) programme,28 are useful for monitoring and verifying compliance with legal requirements while also serving other purposes.29

Considerable evidence shows that in many circumstances inadequate verification contributes to lower-than-desired levels of compliance with environmental requirements. To offer an example from international environmental law, the Kyoto Protocol’s Clean Development Mechanism (‘CDM’) has suffered from weak verifiability, which has undermined the Mechanism’s effectiveness.30 The Canadian Auditor General similarly found that monitoring shortcomings weakened the enforcement and compliance performance of a Canadian environmental programme.31 On the other hand, enhanced reporting has led to dramatically improved compliance in some cases. In a recent article, EPA’s Assistant Administrator for Enforcement highlighted a 2008 study in Massachusetts that found that requiring drinking water systems to mail compliance information to customers significantly reduced both environmental regulatory violations and severe health violations.32 She noted that ‘EPA’s efforts to make our data more available are only starting to scratch the surface of the ways transparency can improve results’.33 In short, while the optimal parameters for incorporating a verification component into a particular regulatory regime will depend on a wide variety of factors, the literature demonstrates that verification is a foundational element of an effective regulatory scheme.

p. 72.4 The mix of rewards and sanctions

A fourth component of an effective regulatory scheme is its capacity to incentivize regulated parties to comply with regulatory obligations through the use of both carrots and sticks. Conceptually, an optimal level of compliance maximizes net social benefits.34 Strategies that embody a mix of rewards and sanctions have the potential to contribute to achieving desired compliance levels. The US EPA, on its own and in tandem with environmental or community non-governmental organizations (‘NGOs’) and regulated parties, has a rich array of options for promoting compliance.35 These include litigation options such as criminal prosecutions under many of the environmental statutes, civil judicial actions and administrative enforcement actions, some of which may, like their judicial counterparts, seek penalties and other relief.36 Beyond these types of formal enforcement litigation, EPA uses strategies that employ ‘carrots’, or a mix of ‘carrots and sticks’, to promote compliance.37

An active debate continues about the relative effectiveness of various enforcement strategies in different contexts.38 At the ground level, EPA has developed a library full of enforcement response and penalty policies that seek to prioritize violations that warrant different levels of enforcement attention.39 The Agency has generally attempted to focus on ‘significant violations’ and ‘high priority’ violations, while giving less or different types of attention to minor instances of noncompliance.40 It has also developed a substantial set of compliance promotion and incentive policies that reflect a mix of strategies.41 In short, effective compliance promotion is most likely to derive from the use of a combination of traditional enforcement activity, facilitated by robust monitoring and reporting regimes, and efforts to induce regulated entities to comply through financial and other positive and negative incentives. Determinations of how best to combine those elements will inevitably be context specific.

p. 82.5 Legitimacy

Finally, we suggest that an important component of effective regulation is its capacity to promote legitimacy, which we define as including enhancing the confidence of the public and others.42 We believe that, in designing and implementing regulatory enforcement and compliance mechanisms, it is appropriate for policymakers to ask whether a particular regulatory design will enhance or diminish public confidence in the government’s ability and willingness to promote compliance with it. A regulatory scheme that leads to a public perception that government is corrupt, overbearing or selective in its enforcement of the law may lead to a loss of confidence and trust that undermines effective regulation in many ways, including by exacerbating budget pressures if public support for necessary funding diminishes.43 As one of us has noted elsewhere, ‘[t]he legitimacy of a regulatory system also [may] turn on the degree to which it protects against deviation from legislative goals due to capture of regulators by special interests’, and on whether decision makers are perceived as honest, unbiased, or competent.44 Polling results showing the American public’s loss of confidence in the federal government highlights the salience of perception by different audiences and constituencies in designing the enforcement aspects of regulatory programmes.45

3 Interrelatedness of the five components of effective regulation

The preceding section introduces what we believe to be five important components of effective regulation.46 Considering each of these components on its own merits is, we submit, a starting point in designing and implementing an effective enforcement and compliance promotion regime. A second layer of analysis involves assessing how the relationships among the components affect the manner in which, and the degree to which, policymakers should pursue each individual component of effective regulation. This section focuses on the fundamentally interrelated character of different components of the regulatory process in order to reinforce the importance of considering regulatory design holistically rather than atomistically. The five components of effective enforcement and compliance that we discuss above are interrelated in a virtually unlimited number of ways. We offer one illustration in this section.

p. 9An example relates to concerns that arose in 2007 about compliance rates among small quantity generators (‘SQGs’) of hazardous waste under Colorado’s hazardous waste programme.47 As backdrop, state regulators believed that SQGs in the state might collectively pose a greater risk to human health and the environment than other, larger generators.48 This was because in the aggregate SQGs generated a considerable amount of waste; they did so at many more locations than large quantity generators; and the SQGs had less control over the waste and lower levels of compliance.49 Because of resource constraints, agency staff members were only able to inspect each SQG once every eight years. In the agency’s view, ‘[t]hat [was] simply not enough to improve compliance… The 12 per cent inspection coverage we were attaining each year did not create enough accountability and deterrence to improve compliance rates.’50

Colorado decided it needed to address the SQG sector in a different way.51 It adopted a regulation that sought to improve compliance by changing the ‘verifiability’ component and enhancing the clarity of the regulatory requirements. In particular, the state required that each SQG complete and return a ‘self-certification checklist’ to the Agency.52 Failure to do so subjected an SQG to an enforcement action and the possibility of penalties.53 Colorado reports that the return rate for the checklists was more than 95 per cent.54

Beyond tweaking the verifiability component of its regulatory scheme, Colorado also invested considerable effort in improving the scheme’s clarity. The state prepared a comprehensive compliance checklist that identified all of the regulatory requirements, and it developed an instruction booklet that provided guidance on how to complete each question on the checklist.55 The state sent the checklist and instruction booklet to all members of the regulated community.56 The changes to verifiability, sanctions and clarity led to significant increases in compliance. As the report on the initiative reflects, ‘compliance rates across the SQG sector have dramatically improved… In 2008, only 32 per cent of the SQGs were in compliance with 100 per cent of the regulatory requirements…. By 2011, the compliance rate had increased to 84 per cent.’57 This example reflects the value of thinking about key components of a compliance promotion scheme in an integrated way and appears to be an example of a significant redesign that yielded impressive improvements in performance concerning compliance.

4 Chapter summaries

With this background in mind, we turn to the chapters in the book. The first section of the book focuses on non-regulatory approaches to compliance. In Chapter 1 Sarah Stafford discusses voluntary self-policing, focusing on the US Environmental Protection p. 10Agency’s long-standing Audit Policy. The Audit Policy eliminates or reduces civil penalties for regulated entities that voluntarily disclose and correct violations of environmental regulations discovered during an environmental audit. In theory, self-policing can allow regulators to more effectively use enforcement resources and increase both overall compliance and the amount of remediation that occurs. However, theoretical models also show that self-policing may be used strategically to avoid the detection of noncompliance. Stafford concludes that in practice the Audit Policy appears to have had either no or only a modest positive effect on compliance and environmental performance. She notes that formal self-policing programmes in other countries are quite rare. One of the few programmes outside of the United States is Mexico’s Clean Industry Program. Like its US counterpart, Stafford observes that the Clean Industry Program has had only a modest impact on environmental performance.

The editors have both had significant experience with audit programmes and found them to be useful tools in certain circumstances. The US Environmental Protection Agency has recently re-evaluated its audit programme and has decided to expand it through a new ‘eDisclosure’ programme by creating

[a] centralized web-based ‘eDisclosure’ portal to receive and automatically process self-disclosed civil violations of environmental law. Under the automated eDisclosure system, large and small businesses will quickly be able to resolve certain routine types of disclosures. EPA is launching the eDisclosure system to continue the benefits of self-disclosure policies and provide penalty mitigation and other incentives for companies that self-police, disclose, correct and prevent violations.58

Chapter 2 turns to the use of industry-based management standards as compliance tools. Martin de Bree and Han de Haas examine the use of management systems in public environmental supervision in the Netherlands. Effective regulation of big companies is a growing concern of public administrations. Processes are complex and risks often hard to analyse. Public supervisors therefore look for more effective methods of regulation for large facilities that also are efficient. Self-regulation through company compliance assurance programmes is one option that has been considered. Even though self-regulation has advantages in certain circumstances, there are also pitfalls that can result in serious societal damage. Some forms of self-regulation such as codes of conduct have not proven to be consistently reliable in assuring risk reduction. In contrast, management systems utilized by regulated companies may offer a more suitable focal point for public supervisors. A compliance management system (‘CMS’) is the part of the private management system aimed at assuring regulatory compliance. By focusing public supervision on the CMS the supervisor can differentiate companies with effective and ineffective compliance assurance and stimulate improved compliance assurance by giving feedback on a system level.

In Chapter 3 Rachel Deming focuses on the role of environmental management systems (‘EMSs’) in compliance programmes. Over the past twenty years, and especially since the introduction of the International Standards Organization (‘ISO’) 14001 p. 11standard for EMSs, there has been much discussion about the role EMSs could or should have in environmental compliance programmes. Underlying all these discussions is the premise that EMSs have the potential to generate enhanced environmental performance through a process designed to achieve continuous improvement.

The emergence of EMSs also coincided with the exploration of transforming regulatory systems from governmental command-and-control policies to more flexible regimes that allow private actors a greater range of options to meet governmental requirements. At the same time, the laws of individual nation-states have become just one of several considerations operating entities must take into account to compete in an increasingly global marketplace. Because EMSs provide an internationally recognized standard for evaluating environmental processes, they have been suggested as a mechanism providing for a more uniform global approach to environmental management as well as leveraging the capabilities of constrained environmental enforcement agencies, something particularly important for developing nations.

EMSs have the potential to produce significant environmental performance benefits. Those benefits have already been well recognized in many markets, as demonstrated by both the number of companies that make having an EMS a requirement of doing business and the dramatic growth of EMSs throughout the world. The chapter focuses on how governments can better utilize EMSs to supplement their regulatory programmes, as well as to encourage improvements in overall environmental performance that might be beyond their regulatory powers.

Beginning with Chapter 4 the book turns to the role of traditional means of compliance and enforcement. Neil Gunningham looks at the roles of compliance and deterrence strategies of environmental enforcement, arguing that neither is likely to be successful except in particular circumstances. He suggests that better results will be achieved by developing more sophisticated strategies which employ a judicious blend of persuasion and coercion, with the mix being adjusted to the particular circumstances and motivations of the entity they are dealing with. This is the enterprise of Responsive Regulation, upon which a further strategy, Smart Regulation, builds. The latter argues that public agencies may harness institutions and resources residing outside the public sector (in conjunction with a broader range of complementary policy instruments) to further policy objectives. Gunningham concludes that while there are no ‘magic bullets’ and no single approach that will function effectively and efficiently in relation to all types of enterprises and all circumstances, some approaches are considerably better than others and there is much to be learnt from each of the regulatory models.

Chapters 5 and 6 explore the role of traditional common law remedies in environmental enforcement. Marie-Eve Arbour addresses how private law can enhance the protection of the environment. By way of traditional legal categories, it offers, within civil law jurisdictions, enforcement tools that can compensate damages or provide in-kind solutions to property rights violations. However, Arbour finds that common law remedies have limited ability to address more recent norms such as the precautionary principle or sustainable development. Still, Arbour concludes that procedural and substantive measures increasingly allow property law and civil liability to offer remedies to the deterioration of the environment, thus testifying to their underlying potential.

In Chapter 6 Lynda Collins and Heather McLeod-Kilmurray examine common law tools to protect the environment. Common law actions were effective protectors of the p. 12environment long before legislation. They assert that these causes of action remain necessary, and that there has been recent resurgence in their use for several reasons. Environmental laws leave some wrongs unaddressed, or permit unacceptable harm. Litigants can seek environmental protection through nuisance, negligence, trespass, strict liability and intentional torts. Collins and McLeod-Kilmurray contend that while people debate the appropriateness of regulation by litigation, there is persuasive evidence that governmental responses to threats such as pollution and climate change are inadequate. The common law offers mechanisms to complement and reinforce statutory schemes.

Chapter 7 turns to the issue of enforcement strategies for inspections, targeting and escalation. Cameron Holley and Darren Sinclair note that all regulators must confront the question of how best to achieve compliance and enforcement within their resource constraints. This challenge comprises four issues, namely the where, how, who and why of regulatory enforcement. First is where to allocate regulatory resources. In most circumstances, agencies will not be able to inspect and target all regulated firms or sites due to limited resources. As such, regulators inevitably have to make a choice between potential inspection targets, and about the frequency and length of inspections. The second question confronting regulators is how to intervene in the affairs of regulated firms in instances of non-compliance. This encompasses both the range and nature of enforcement tools available to inspectors, and the way in which those tools are employed (or not) individually, in combination or sequentially. It is the interplay of the available tools and their application that determine an agency’s regulatory enforcement strategy. Two subsidiary issues are who should intervene (government or other parties beyond government regulators that are willing and able to assume a surrogate enforcement role) and why they should intervene (eg is the enforcement action rationale for education, retribution or deterrence purposes?). The chapter explores the where, how, who and why of five key regulatory enforcement strategies. It also highlights how context influences the application of these strategies, particularly relating to inspection, targeting and escalation.

A critical issue in enforcing environmental laws is the enforceability of a regulation. In Chapter 8 Michelle Sanders and Pieter Asbeek-Brusse offer a practical overview of some key regulatory design considerations that help ensure that environmental regulations are enforceable. This includes ensuring that obligations are clear and unambiguous; that regulatees are properly identified; that powers to inspect, investigate, take action, and compel compliance are provided for; that requirements to self-monitor, report, and keep records are clear; and that the technological support needed to verify compliance is available.

Staying with the effectiveness theme, in Chapter 9 Jon Silberman and David Hindin discuss effective environmental monitoring and reporting. Self-monitoring, self-certification and reporting provisions in rules and permits require regulated entities to accurately determine their compliance status and report the results to regulators and the public. Third-party programmes use independent third parties to report information on regulated entities to the government or assess and verify whether the entities are meeting their regulatory obligations. Citizen monitoring engages members of the public in monitoring activities. Increasingly, regulators are providing for monitoring data to be reported electronically and designing the monitoring to prompt p. 13the regulated community to identify and respond to compliance deficiencies before they become violations. Monitoring and reporting provisions are also increasingly being used synergistically with disclosure and transparency approaches to drive high compliance. Effective monitoring and reporting requires understanding and addressing the six ‘w’s of compliance monitoring and reporting: why, who, what, which, where and when.

Assessment of civil penalties for environmental violations can be a complex process. Brendan Grigg explores the issue from an Australian perspective in Chapter 10. A civil penalty is one of a range of enforcement tools available to a regulator. The characteristics of civil penalties defy the neat application of elements traditionally associated with either criminal law or civil law. For example, civil penalties characteristically use the civil, rather than the criminal, standard of proof yet they can result in a penalty that is punitive in nature. The lower burden of proof makes civil penalties particularly attractive to environmental regulators as it makes contraventions easier to prove and, arguably, it bolsters the regulatory scheme’s ability to deter contraventions. The regulatory efficiencies inherent in the lower burden of proof, however, compromise protections of the criminal law and procedure. Civil penalties thus create a tension between regulatory efficiency and fairness. The chapter deals with the Australian experience with environmental civil penalties. Focusing, firstly, on federal biodiversity protection laws, it illustrates how, in a jurisdiction where there are no express procedural guarantees such as those that exist in the United States Constitution or under the European Convention on Human Rights, civil penalty schemes can exert punishment. Its consideration, secondly, of a state-based civil penalty scheme in pollution prevention laws illustrates, however, that careful design of a civil penalty scheme can address the tension between administrative efficiency and procedural fairness.

Many environmental enforcement cases result in settlements that include both remedial actions as well as penalties. Joel Mintz in Chapter 11 discusses settlement of environmental enforcement disputes. After considering the reasons for the ubiquity of negotiated settlements, the chapter describes three common forms of enforcement settlement agreements—administrative orders, consent decrees and plea agreements. It also considers the role of alternative dispute resolution (ADR) techniques in the settlement of environmental enforcement cases and inter-party negotiation in the creation of environmental permits. This chapter then focuses on several other topics that concern the substantive terms of environmental enforcement settlement agreements, including environmental agency penalty policies, ‘overfiling’ by national environmental agencies in circumstances where a national agency is dissatisfied with the terms of an enforcement settlement reached by a sub-national agency, and supplemental environmental projects. Finally, the chapter treats the topic of the settlement of environmental disputes that arise between or among nations.

Administrative review of enforcement actions also play an important role in resolving enforcement disputes. Robin Juni provides in Chapter 12 a comparative discussion of environmental enforcement proceedings in administrative tribunals, focusing on the review standards used by such tribunals regarding imposition of penalties. The chapter utilizes the well-developed review procedures of the Environmental Appeals Board of the United States Environmental Protection Agency as a focal point, with additional analyses of similar agency boards and courts in other countries.

p. 14The chapter concludes that, in practice, p. 15administrative bodies adjudicating environmental enforcement matters have often taken a common sense view that provides deference to an initial reviewing tribunal within the Agency, particularly on discovery and witness issues, even when such deference is not explicitly authorized and may be inconsistent with the review standards set forth in statute or regulation. Policymakers developing administrative review structures should recognize this tendency, and consider whether explicit language should be included in legislation or other rules seeking to define administrative review processes.

While national governments are often thought of as the primary environmental enforcers, local governments also play an important role. In Chapter 13 Helen Kang looks at the role of local governments. The chapter reviews the different kinds of environmental enforcement in which localities engage, as well as their enactment of laws aimed at environmental protection. The chapter discusses local government enforcement of state and national laws; enactment and enforcement of local laws that address a wide variety of local environmental challenges, from pollution abatement to sustainable development; and enactment and enforcement of local environmental laws that have impacts beyond the immediate locality.

Chapters 14, 15 and 16 address the role of criminal law in environmental enforcement. In Chapter 14 Susan Mandiberg looks at the controversial issue of the mental state necessary to establish a criminal violation. Environmental crime statutes vary greatly in their approach to the mental element of criminal liability. Some require proof that the actor was aware of the conduct, results and circumstances set out in the act or material element of the crime; some require only awareness of risks or possibilities; some are satisfied with proof that the actor should have been aware of such risks; some require mental states beyond those focused on the factual elements of the offense; and some environmental crimes require no mental state at all. Understanding these options requires knowledge of a particular jurisdiction’s approach to mental state generally. Nonetheless, each of these categories presents issues for environmental crime that are different from those raised by traditional offences. Research and a general discussion of mental state are hampered by a variety of challenges stemming from both translation and variations in the use of terminology. This chapter reviews the challenges and addresses the various mental states in both their general and environmental aspects.

Chapter 15 by Jeffrey Miller and Caroline Justice explores the question of organizational liability for environmental crimes. For environmental law enforcement to be effective, officials must have access to a broad array of effective enforcement actions and sanctions. The actions must include the most potent enforcement action: criminal prosecution. Since the largest potential environmental violators are corporations and other organizations, effective criminal enforcement in the environmental sphere raises the perennial issue of whether artificial entities can be criminally liable. The chapter discusses the evolution of organizational criminal liability in the United States and several other countries.

In Chapter 16 Heather McCready and Karina Barker examine the issue of intelligence-led environmental enforcement. As environmental crime becomes more complex and transnational in nature, environmental protection agencies face increased pressure to respond in efficient and sophisticated ways. One solution has been to adopt an intelligence-led approach to environmental enforcement. While intelligence-led enforcement has roots in policing, its core concepts and business practices can be adapted to fit regulatory enforcement settings. This approach uses intelligence principles to inform decision-making, support priority-setting, and reorient the organization to more effectively identify and suppress the most serious environmental harms. This chapter examines the evolution and application of intelligence-led enforcement in an environmental regulatory context. It presents considerations for agencies that are moving towards implementing intelligence-led environmental enforcement.

Beginning with Chapter 17 the book focuses on the issue of measuring the effectiveness of enforcement actions. In Chapter 17 Jay Shimshack addresses empirical tools for assessing the impact of environmental monitoring and enforcement actions in order to quantitatively measure deterrence. He asks how we know when and where monitoring and enforcement actions enhance environmental compliance and performance in the real world. The chapter reviews a growing literature that quantitatively measures the deterrence effects of environmental monitoring and enforcement activity. The focus is on the ‘how and why’ of empirical deterrence measurement. Key topics include the promise of deterrence measurement, data requirements, empirical approaches and methodological challenges.

In Chapter 18 Shelley Metzenbaum discusses the crucial role of measurement in environmental compliance and enforcement efforts. When measurement is wholly integrated into environmental compliance and enforcement management decisions, it can be transformative—allowing regulatory agencies to achieve better environmental outcomes, higher compliance rates, improved fairness, a better understanding of regulated entities and environmental problems, and a higher return on investment. Without a strong system of outcomes-focused measurement, regulators run a high risk of being wasteful and ineffective.

Measurement need not be difficult, but it does require clear thinking about objectives and how to assess progress on those objectives, as well as a commitment to start to measure and continuously use data to find ways to improve. The chapter uses three examples to illustrate the value and feasibility, as well as the variety, of useful compliance and enforcement measurement approaches: water quality data to clean up a river, maps to reduce wetlands loss, and self-reported compliance information complemented by government-conducted audits of randomly sampled facilities to increase compliance. It also explores why, what and how to measure as well as measurement challenges.

Some enforcement issues are addressed in Volume II of the Encyclopedia of Environmental Law—Decision Making in Environmental Law. These include ch. II.18 ‘Motivating Without Mandates? The Role of Voluntary Programs in Environmental Governance’ by Cary Coglianese and Jennifer Nash; ch. II.19 ‘Private Environmental Governance’ by Sarah E Light and Michael P Vandenbergh; ch. II.26 ‘Environmental Justice’ by LeRoy C Paddock; and ch. II.31 ‘Citizen Enforcement’ by Karl S Coplan.

The discussion of the five key components of effective regulation is derived largely verbatim from Markell and Glicksman (2014). The article, however, contains a much more comprehensive view of the role of agency enforcement in the environmental context.

See eg Office of the Auditor General of Canada (2011) 6 (noting that a ‘range of activities contributes to compliance… including drafting regulations that are enforceable’ and further noting that ‘enforceability… depends on a number of factors, including clear language and definitions’).

At the far end of the continuum are cases such as General Electric Co v EPA, 53 F3d 1324, 1333-4 (DC Cir 1995) in which the DC Circuit rejected an EPA enforcement action because EPA’s rules did not provide sufficiently clear norms.

Giles (2013) 24; see also Water Quality Standards Regulatory Clarifications, 78 Fed Reg 54,517, 54,521 (proposed 4 Sept 2013) (to be codified at 40 CFR pt 131) (highlighting the value of ‘[c]lear regulatory requirements’ and transparency in promoting water quality protection).

See eg Di Lorenzo (2012) 89 (citing research that ‘demonstrates that certainty in statutory or regulatory mandates increases the likelihood of compliance’).

For an interesting case study about adaptive management theory and suggested legal and management reforms to more fully realize the theory’s potential, see generally Scanlan and Tai (2013). See also Geltman and Skroback (1998) 53 (urging creation of a ‘no action’ process in which EPA would provide facility-specific guidance ‘so that it gives industry a higher degree of certainty than the EPA’s existing guidance documents and policy letters’).

See eg United States Environmental Protection Agency (2008) (describing successful education programmes which reduced emissions from paint stripping and coating operations and partnerships between EPA and states to increase understanding of industry best waste management practices); United States Environmental Protection Agency (2002) 19-21 (describing a compliance assistance initiative involving the metal finishing sector).

See Schieffelin and others (2013) 18.

40 CFR s 261.5 (2013) (describing conditional exemption for small quantity waste generators).

Some of the waiver provisions under the CWA are examples of regulations that require ad hoc judgments. On the potential benefits of making case-by-case adjustments to regulations after adoption, including through the enforcement process, see generally Glicksman and Shapiro (2004).

The rule of lenity is a canon of construction that highlights the value courts have attached to clarity, particularly in criminal prosecutions. See United States v Bass, 404 US 336, 347-9 (1971); see also Arizona v Roberson, 486 US 675, 681-2 (1988) (highlighting the benefits of a bright line rule which provides ‘“clear and unequivocal” guidelines to the law enforcement profession’).

Giles (2013) 23. For arguments in favour of pragmatic regulatory approaches, see Shapiro and Glicksman (2003) ix-xii. There is obviously an overlap between this second attribute and clarity in that clear rules may be easier to achieve than unclear ones.

Giles (2013) 23. We do not mean to suggest that self-reporting without agency oversight would necessarily be appropriate. See eg Schieffelin and others (2013) 3 (noting that self-reporting in tandem with agency oversight helped to improve compliance). Instead, allowing regulated entities to certify that they have used technology EPA itself has approved, subject to verification by the agency that the certification is accurate, is more efficient than requiring regulated entities to retest the efficacy of the technology.

See eg Whitman v Am Trucking Ass’ns, 531 US 457, 486 (2001) (holding that the CAA prohibits EPA from considering cost in setting national ambient air quality standards).

See eg Union Elec Co v EPA, 427 US 246, 260 (1976) (‘Therefore, the Committee determined that existing sources of [air] pollutants either should meet the standard of the law or be closed down…’ (quoting S Rep No 91-1196, at 2-3 (1970))); Ass’n of Pac Fisheries v EPA, 615 F2d 794, 808-9 (9th Cir 1980) (acknowledging that Congress adopted stringent technology-based regulations under the CWA that might put some regulated sources out of business).

Technology-forcing regulation has long been an accepted and important tool for achieving environmental goals. Aspirational regulations have prompted technological developments that facilitated improved performance, sometimes in the face of infeasibility claims. See Glicksman and others (2015) 82; McGarity (1994) 955-8.

See eg O’Hear (2004) 150 (noting that many environmental laws with aspirational objectives ‘have arguably forced much beneficial technological and social change’).

See eg Davies (2012) 326-7 (raising the possibility that renewable portfolio standards have operated as ‘political subterfuges: symbolic legislation adopted to garner electoral favor but intended to accomplish very little in actuality’); Dwyer (1990) 300 (‘Symbolic legislation is not a set of specific instructions for the agency to follow, but a statement of legislative aspirations and assurances delivered to various constituencies as well as the agency’).

Cf Kahrshtedt (2011) 110 (defining verifiability as ‘the ability of a follow-on researcher to confirm that he or she has successfully reproduced the original experiment’).

See eg United States Government Accountability Office (1993) 15.

See eg 33 USC s 1318 (2012) (CWA); 42 USC s 6927 (2012) (RCRA); 42 USC s 7414 (2012) (CAA).

Monitoring takes several forms, such as a requirement that regulated entities file periodic discharge monitoring reports (DMRs) under the Clean Water Act, see 40 CFR ss 122.2 (defining DMRs), 122.41(l)(4)(i), or the obligation for industrial facilities to report annual chemical releases under the Emergency Planning and Community Right-to-Know Act, see Toxics Release Inventory (TRI) Program <www2.epa.gov/toxics-release-inventory-tri-program> accessed 4 May 2016.

See Markell (1994) 407-8.

See Markell (2005) 8-10 (discussing increases in transparency and public involvement). EPA’s view on transparency, as expressed by its Office of Enforcement and Compliance Assurance assistant administrator, Cynthia Giles, is that ‘[p]ublic disclosure is [an] underutilized tool; there is powerful evidence that publishing information about company performance drives better behavior, as pressure is applied by customers, neighbors, investors, and insurers’, Giles (2013) 24. Further, Giles indicates that transparency may serve a ‘reminder function’ by drawing attention to problems and inducing senior-level officials to fix them (ibid 25). Transparency may also bring community pressure to bear on lower performing parties by alerting investors and insurers to noncompliance in ways that provide financial motivation to improve performance (ibid 25-6).

See eg Paddock and Mulherin (2017) 180-2.

See Andreen (2007) 75 (reporting that environmental organizations brought hundreds of CWA cases during the Reagan administration when federal enforcement flagged). See also Coplan (2016).

See eg Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC s 9603(a) (2012) (reporting requirement).

42 USC s 11023 (2012).

See Markell (1993) 33 n 86.

See eg Ramo (2014) 121 (‘The CDM has suffered serious [verifiability] problems. Determining whether emissions have actually increased is easy if you have continuous and automatic emissions monitoring that can be verified. In a developing country where one relies upon records that may not exist, and testing technology that may be inadequate or fraudulent, it can be difficult if not impossible’).

Office of the Auditor General of Canada (2011) 2.

Giles (2013) 25.

ibid.

Farber (1999) 316.

Silberman (2005) 384 (describing actions EPA can use, including civil and criminal enforcement, penalties, injunctive relief, public notification of violations, and varying incentives).

See eg 33 USC s 1319 (2012) (CWA); 42 USC s 6928 (2012) (RCRA); 42 USC s 7413 (2012) (CAA).

See Esworthy (2013) 19 (noting that EPA uses a diverse set of strategies to promote compliance, including compliance assistance, administrative and civil enforcement, and criminal enforcement); Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, 65 Fed Reg 19,618, 19,618-19 (11 April 2000); Environmental Law Institute (2003) 1-2 (listing a mixture of compliance tools, including both incentives and penalties, that organizations use to promote and achieve compliance with environmental regulations).

Compare Cohen (2000) 10247-50 (discussing the deterrent effects of compliance inspections, criminal sanctions, self-regulatory efforts, and information disclosure) with Silberman (2005) 386-91 (evaluating the deterrent effects of civil and criminal penalties, informal enforcement by market forces, and conditional government benefits and theorizing that communication about and visibility of the consequences of noncompliance would increase their deterrent effect), and Simpson and others (2013) 233-4 (noting that, while studies have been conducted on effective deterrence through government regulation, scholars and policymakers know little about the effectiveness of different corporate crime-control strategies associated with self-regulation).

See eg United States Environmental Protection Agency (1999).

See eg Uhlmann (2010) 1459 (‘The EPA emphasizes cases involving significant harm in its policy regarding the exercise of investigative discretion’).

See eg United States Environmental Protection Agency (2012).

For efforts to raise this fifth feature of effective regulation in different contexts, see generally Hammond and Markell (2013) (discussing the potential of ‘inside-out’ strategies to foster legitimacy); Knox and Markell (2011) (discussing the NAFTA Environmental Commission’s citizen petition process as an example of a government programme emphasizing increased legitimacy through citizen involvement and transparency). For discussions of the difficult-to-define concept of legitimacy, see eg Shapiro, Fisher and Wagner (2012) 466 (noting that ‘[l]egitimacy is a notoriously treacherous concept’). One way to define legitimacy is to focus on ‘the acceptability of [a] regulation to those involved in its development’ (Freeman and Langbein (2000) 63).

Sackett v EPA, 132 S Ct 1367 (2012), in which landowners challenged an ePa order requiring them to apply for a dredge and fill permit under the CWA before developing portions of their land alleged to contain wetlands, may be an example of lack of legitimacy.

See Camacho and Glicksman (2014) 30.

See eg Wilke and Newport (2013).

A recent Congressional Research Service (‘CRS’) report notes that ‘[c]ompliance with pollution control laws is addressed through a continuum of response mechanisms, ranging from compliance assistance to administrative and civil enforcement, to the stronger criminal enforcement’ (Esworthy (2013) 19).

This summary of the Colorado programme is taken from Schieffelin and others (2013) 4–5.

ibid 5.

ibid 4-5.

ibid 4.

ibid 5.

ibid 3.

ibid 5.

ibid.

ibid 3.

ibid.

ibid.

See US EPA, ‘EPA’s eDisclosure’ <www.epa.gov/compliance/epas-edisclosure> accessed 2 June 2016.

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