Meeting the Enemy

During eight years as chief of the Environmental Protection Bureau in the New York State Attorney General's Office, I had the political backing necessary to take on large corporate polluters.

Such support is crucial to enforce the hard-won standards contained in our environmental legislation. If there was any doubt, The New York Times ("Clean Water Laws Neglected, at a Cost") has laid bare just want happens when political will fails: polluters with deep pockets and millions-sometimes billions-of dollars at stake run roughshod over our country's cornerstone environmental laws.

Public records, government documents and even reports submitted by polluters themselves analyzed by the Times set out a stunning portrait of non-compliance across the country that includes over half a million violations of the 1972 Clean Water Act since 2004. Well over half of these were described as "significant non-compliance". Still, the Times' research found fewer than 3% of these Clean Water Act violations resulted in fines or other significant punishment.

For anyone in the business of enforcing environmental law, these figures merely provide unsettling detail for a broader picture they already know all too well. The numbers underscore a stark reality: our environmental laws have not failed us; we have failed our environmental laws. To quote the comic strip character Pogo, "We have met the enemy and he is us." Without enforcement, even the finest laws protect little.

Environmental regulation was rarely a Bush administration priority and the New York Times report has given a whiff of what that low priority has produced. Today, there is a new administration in Washington and the appointment of Lisa Jackson as head of the Environmental Protection Agency is encouraging. She told The Times that "strengthening water protections is "among her top priorities."

It will be important that she repeatedly shows her attention to water quality because political direction-and political will-flow from the top.  If the EPA shows determination on enforcement, then state regulators will get tough, too. Success in just one high profile case can cause a ripple effect with a far broader impact.

While political will is crucial, it's not enough. Government regulators at both federal and state levels often lack the resources needed to enforce key provisions of the Clean Water Act and other environmental legislation. In New York state, for example, the number of regulated polluters has doubled over the past decade, yet the number of government inspectors has remained roughly the same, according to the Times. When the economic slowdowns force governments at all levels to tighten their belts, enforcement budgets are often among the first cut.  

But beyond these staffing numbers there's also a more subtle-equally damaging-barrier to enforcement that has grown steadily over the past two decades: the ability of defendants to drag out enforcement cases to the point that the process itself becomes a deterrent to regulators. If they launch an enforcement case today, they know they are taking on a long and exhausting battle, one that could last years-while still dealing with everything else on their plate.

For example, it took the New York State Attorney General's office, working with EPA, the Department of Justice and other states and environmental organizations (including NRDC) ten years to win cases against major polluters who had violated the Clean Air Act's New Source Review Provisions.

It was an important case because the pollution was costing thousands of lives each year and although we won it, the very length of such a fight raises questions about the balance of public interests versus the interests of private polluters; between public health and private gain. To protect the public, the pace of these cases must go faster at both the administrative and judicial level. There needs to be greater presumptions favoring the public interest.

To achieve that, we have to ask ourselves how we feel as a people about environmental law, the value we place on it and the value we place on those who regulate it. All too often, the regulator's public image is a negative cliché: a bureaucrat interested mainly in disrupting business and endangering jobs. The truth is far different. The New York Times story provides a glimpse of what happens when regulators are unable to enforce environmental laws.  Law enforcement is critical to leveling the playing field and ending the competitive advantage given to polluters. Consistent enforcement is also crucial to create the kind of predictability needed to justify for new investment. But the real evidence of under-enforcement is that, years after the deadlines imposed in key environmental legislation, we haven't yet met the goals set out in those laws and people still get sick from drinking water.