This is an excerpt of the third post in a Yale Notice & Comment symposium on Cynthia Giles’ book, Next Generation Compliance: Environmental Regulation for the Modern Era. For other posts in the series, click here. The Notice & Comment blog is published by the Yale Journal on Regulation.
No one disputes the central role that enforcement plays in any regulatory regime. In its latest Strategic Plan, the federal Environmental Protection Agency states that “A robust compliance monitoring and enforcement program is necessary to ensure communities get the environmental and human health benefits intended by environmental statutes and the Environmental Protection Agency (EPA)]’s regulations.” I once quoted former Connecticut Senator Joe Lieberman, who said that without effective enforcement, “most of the rest of environmental protection lacks meaning, lacks truth, lacks reality.”
EPA and its environmental regulatory state partners have engaged in many important successful efforts during the modern environmental law era that began in 1970 to foster compliance with regulatory obligations through enforcement actions and otherwise. But in her new book, Next Generation Compliance: Environmental Regulation in the Modern Era, Cynthia Giles documents widespread and significant noncompliance with these obligations. Giles is in a good position to know — she headed EPA’s Office of Enforcement and Compliance Assurance (OECA) for eight years under the Obama administration. She surely knows where the bodies are buried, but she also provides ample substantiation in her book of this disturbing reality.
For decades, environmental law scholars and public officials have pondered how best to bolster compliance. Some solutions seem obvious, such as throwing more money at the problem in the form of increasing agency budgets so that they can hire more enforcement personnel. But that kind of fix does not seem to have moved the needle on the noncompliance register.
Giles’ solution is different—designing environmental regulations “so that compliance is the default.” Giles first publicly advanced this idea about a decade ago, when she published a short piece on Next Generation Compliance. “Next Gen” was an approach to fostering greater compliance that she spearheaded during her tenure as the head of OECA. She described in that early publication several elements that have the potential to revolutionize the ways in which agencies like EPA can go about the business of reducing noncompliance. She posited that “We can get a bigger bang for the buck by working hard to make sure we design rules that will work in the real world — rules with compliance built in.” The other key elements of Next Gen included advanced monitoring, electronic reporting, transparency, and innovative enforcement strategies.
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Robert L. Glicksman | January 17, 2023
The U.S. Environmental Protection Agency (EPA) and its environmental regulatory state partners have engaged in many important successful efforts to foster compliance with regulatory obligations through enforcement actions and otherwise. But in her new book, Next Generation Compliance: Environmental Regulation in the Modern Era, Cynthia Giles documents widespread and significant noncompliance with these obligations.
James Goodwin | January 12, 2023
In case you missed it, the Biden administration capped off 2022 with the release of a new “open government” plan that aims to improve access to federal data and information, better engage the public in the regulatory process, and streamline delivery of government services and benefits.
Ajulo Othow, Sidney A. Shapiro | January 11, 2023
This op-ed was originally published in the Winston-Salem (North Carolina) Journal and the Greensboro (North Carolina) News & Record. The Winston-Salem Journal recently reported that Walmart had joined environmental and climate advocates in opposition to Duke Energy’s proposed carbon reduction plan, which is now under review by the N.C. Energy Commission. In the clash of […]
Daniel Farber | January 10, 2023
There are U.S. Supreme Court cases going back a century or more dealing with what we would now consider environmental issues, such as preserving nature or air pollution. But when did the Court start seeing filthy rivers and smoky cities as embodiments of the same problem, despite their striking physical differences? And when did it start thinking of “wilderness” as a good thing rather than a failure to use available resources?
Daniel Farber | January 5, 2023
Last year, Congress took its first big step into climate policy by passing blockbuster spending measures. Nonetheless, many states are ahead of the feds in climate policy. There were important developments in a multitude of states.
Allison Stevens | January 4, 2023
Greetings from sunny San Diego, where the Center for Progressive Reform is gathering alongside the annual Association of American Law Schools conference to celebrate 20 years of impact and explore legal and policy changes that would secure a more sustainable climate and a more just transition to clean energy. Also at the top of our agenda: celebrating our invaluable Member Scholars.
Daniel Farber | January 3, 2023
Here we are, starting another year. Last year turned out to have some major environmental developments. The most notable were the U.S. Supreme Court’s ruling in the West Virginia v. EPA case, striking down the Clean Power Plan, and the passage of the Inflation Reduction Act, with its huge economic incentives for clean energy. Here’s a quick rundown of what 2023 might hold in store.
Robert L. Glicksman | January 3, 2023
In August, with relatively little fanfare, President Biden signed into law the Inflation Reduction Act. While the act’s provisions do indeed have the potential to reduce inflation, it also represents the most significant measure Congress has ever adopted to combat climate change. The act’s measures to mitigate climate change have attracted some attention in the press, but what has been largely missing has been an analysis of its potential to deliver important protections against the myriad adverse public health consequences that scientists have linked to climate change.
Catalina Gonzalez, Katlyn Schmitt | December 15, 2022
In 2021, President Joe Biden created the Justice40 Initiative, which directs at least 40 percent of federal investments in climate, energy, transit, workforce, infrastructure, and environment-related programs to “disadvantaged communities.” The benefits are far-reaching and range from reduced air pollution and greenhouse gas emissions, lower energy burdens (the share households spend on electric and other energy bills), improved public transportation, and the creation of clean energy jobs and training opportunities, among others.