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Rebuttal: EPA Enforcement and the Challenge of Change

October 1996

Citation: ELR 10538

Author: Joel A. Mintz

Over the past few years, regulated industry's criticism of the U.S. Environmental Protection Agency's (EPA's) approach to enforcing environmental requirements has increased. Perhaps emboldened by shifts in Congress' composition, the Agency's industrial critics have argued that EPA's arm's-length approach to enforcement, with an emphasis on sanctioning violators and deterring other parties from committing violations, is now anachronistic and unneeded.

One such critic is Bruce M. Diamond, a former EPA enforcement official. In his recent Dialogue, Confessions of an Environmental Enforcer, Diamond advocated "real changes" in the way enforcement activities are conducted at the Agency.1 He contended that EPA's deterrence-based approach to enforcing environmental statutes should be replaced "in many, probably most situations" with "less adversarial" approaches that put a premium on cooperation between the Agency and regulated entities.2 Noting changes of circumstance since the formative days of EPA enforcement, Diamond decried "political, bureaucratic, and psychological impediments to change."3 While conceding that EPA's "traditional" enforcement activities have produced "much beneficial impact," and thus should not be completely abandoned, Diamond nonetheless contended that only "bold and comprehensive steps" away from such activities—and in the direction of greater governmental compliance assistance to regulated entities—can bring about a needed reformation of the environmental enforcement system.4

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