Last month, the California Air Resources Board released a draft Aliso Canyon Methane Leak Climate Impacts Mitigation Program. The program comes in response to Gov. Jerry Brown’s January 6 proclamation that Southern California Gas be held responsible for mitigating the estimated 100,000 tons of methane released from the gas storage facility at Porter Ranch, which leaked the equivalent of about one-fifth of all other California sources of the powerful greenhouse gas combined over that same period. While this high-profile case is unique in both its global and local impacts, the response by California may nevertheless be illustrative of certain broader environmental enforcement trends.
Legal scholars from the Center for Progressive Reform and elsewhere have written about a recent policy shift in the federal approach to enforcement, which the U.S. Environmental Protection Agency (EPA) calls “Next Generation Compliance.” Spurred by damaging cuts to the agency’s inspection and enforcement budgets over the last decade or more, EPA has attempted to turn lemons into lemonade by not only overhauling the way it enforces violations and interacts with potential polluters, but also by utilizing new technology to enable communities to better monitor local pollution and detect violations.
EPA’s hope is that by focusing increasingly limited agency resources on the biggest sources of pollution and most egregious violations and increasing public transparency, it can hold the line on pollution even as deterrence from traditional enforcement wanes. (Even EPA admits, however, that the amount of pollution reduced through enforcement will likely decrease in the future.)
Recently, CPR Member Scholar Rob Glicksman and Professor David Markell published an update on the implementation of EPA’s Next Generation Compliance initiative. They note that the ultimate success or failure of the agency's efforts may hinge on the extent to which states, as the primary source of much of the nation's environmental permitting, monitoring, and enforcement work, get “on board” with “NextGen” principles and methods.
For example, in order to effectuate NextGen goals in large compliance cases, EPA’s Office of Enforcement and Compliance Assurance (OECA) released guidance last year regarding settlement of civil enforcement cases. In this guidance, OECA requested that EPA regions carry out NextGen principles in complex settlements by imposing conditions in the agreements that force polluters to use advanced monitoring technologies and electronic data reporting and to promote greater transparency of the collected data. Additionally, OECA took the opportunity to remind the regions of previous guidance promoting the use of mitigation planning (of the type now being proposed in the Aliso Canyon case) in settlements.
If the success of NextGen compliance relies on states to carry out its principles and methods, then the Aliso Canyon example at least demonstrates reason for EPA optimism that some states will step up. Not only is California’s response focusing heavily on the use of mitigation projects, but the Air Resources Board’s draft mitigation program has identified as one of its key objectives the ongoing monitoring and verification of projects, quantification of the methane reductions of selected projects, and continual public progress reports. The draft document has also identified the subsidization of new zero-emissions and other innovative technologies as one source of mitigation credit. Of course, California also has one of the world’s most comprehensive greenhouse gas reduction programs; if the Aliso Canyon leak had occurred in another state without a strong present focus on climate change mitigation, the response might have been weaker.
The problem, however, is that NextGen compliance is essentially a way to make a bad situation a little bit better by working around devastating budget cuts, but the initiative is no substitute for the crucially important deterrent effect of vigorous enforcement. In other words, NextGen tools and ideas are a useful supplement to traditional and fully funded enforcement programs, but they should not supplant those efforts.
The risk that a NextGen strategy replaces traditional enforcement might be particularly risky in the context of large civil and criminal settlements. EPA, working with the federal Department of Justice, uses large settlements to bring about important environmental changes, including effectuating its top policy priorities like controlling the discharge of raw sewage from combined sewer systems and tackling urban runoff pollution.
Thankfully for Southern Californians, there is little risk that the state’s use of mitigation projects and other NextGen-type compliance tools in the Aliso Canyon case will take the place of traditional enforcement. The case made too many headlines and affected too many people not to generate a strong response, with the State of California, the City of Los Angeles, and private citizens already filing lawsuits.
However, we need to pay close attention to cases below the headlines to make sure that violations are being pursued and any subsequent settlements contain penalties that will deter future violations, bring violators back into compliance, and impose conditions that produce meaningful environmental changes. Otherwise, EPA’s NextGen policy will mean that the next generation will fail to see the environmental gains realized by the last.