Document Type

Article

Publication Date

2022

Keywords

environmental regulation, enforceability, CAA, CWA, noncompliance, pollution abatement, vehicle tampering, integrated permitting, regulatory design

Abstract

There are great expectations for a resurgence in federal environmental enforcement in a Biden-led federal government. Indeed, federal environmental enforcement suffered serious blows during the Trump administration, particularly at the Environmental Protection Agency (EPA), including large cuts in the budget for enforcement and reversals of key enforcement policies. Yet, while important to repair the damage, truly strengthening federal environmental enforcement will require more. This Article highlights the need for greater attention to the multiple hurdles that plague environmental enforcement. In doing so, it makes three contributions to the literature. First, it asserts that even though environmental statutes, regulations, and guidance documents often contain “enforceable” as an explicit term, in practice the term lacks scope and definition, making the actual enforceability of regulations dubious. Second, it demonstrates the difficulties with actual enforceability by examining key hurdles that become legal defenses for corporate and government defendants in environmental enforcement matters regarding regulatory exceptions, evidentiary standards, and the preemption and preclusion doctrines. Third, it recommends that drafters of environmental laws and regulations consider actual enforceability by considering, within the documents they are drafting, the likely hurdles for enforcers after the law or regulation becomes effective. Although hurdles in environmental enforcement can be important for regulatory flexibility, judicial expediency, and other normative values, they often result in a tradeoff for achieving enforceability of environmental laws and regulations. Grappling with such tradeoffs, within the law or regulation itself, is essential for meeting the expectations for enforcement held by regulated entities, researchers, environmental advocates, and most of all, local communities. After all, as noted in a March 2021 Grist news article, “[l]aws are only as good as their enforcement.”

Publication Citation

30 N.Y.U. Environmental Law Journal 65 (2022)

Disciplines

Administrative Law | Environmental Law | Law

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