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Competing Visions: EPA and the States Battle for the Future of Environmental Enforcement

October 2000

Citation: ELR 10803

Author: Clifford Rechtschaffen

An important battle is currently taking place over the future direction of environmental enforcement in the United States. The conflict is in part between businesses and government; more fundamentally, however, it is between the U.S. Environmental Protection Agency (EPA) and the states. EPA's vision of effective enforcement is one grounded in deterrence, the theory that generally underlies societal efforts to control unlawful behavior. Many states, by contrast, have been shifting to a more conciliatory, cooperation-oriented approach. Since environmental law rests on a federalism model giving states authority to implement federal statutes but only under federal oversight, and since the states' brand of enforcement does not follow EPA's deterrence-based policies, the area is rife with tension.

Several recent Articles in the Environmental Law Reporter have discussed significant enforcement issues, including research about the efficacy of deterrence-based policies and efforts by EPA to tweak its traditional enforcement approach. Those Articles, however, address only part of the current ferment about environmental enforcement. This Article looks at the broader canvas of enforcement issues today: the debate between the states and EPA over deterrence versus cooperation as a means to achieve compliance with environmental law.

The author is Professor and Co-Director, Environmental Law and Justice Clinic, Golden Gate University School of Law. This Article is excerpted from a book on the evolving federal/state environmental enforcement relationship that Professor Rechtschaffen is writing with Professor David Markell. It will be published by the Environmental Law Institute in 2001. Portions of this Article previously appeared in Clifford Rechtschaffen, Deterrence vs. Cooperation and the Evolving Theory of Environmental Enforcement, 71 S. CAL. L. REV. 1181 (1998), and are reprinted with permission of the Southern California Law Review. Thanks to Golden Gate law student Kristin Henry for valuable research assistance. Thanks also to David Markell and Joel Mintz for their comments on an earlier draft of this Article.

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