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.