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“Running on Fumes”: The Development of New EPA Regulations in an Era of Scarcity

June 2016

Citation: ELR 10510

Author: Joel A. Mintz

EPA’s operating budgets and staff size are at historically low levels, and the volume of its facility inspections and civil enforcement cases has dropped. The enforcement resources available to state environmental agencies have also declined considerably. At the same time, the regulatory and enforcement responsibilities of both EPA and state agencies have expanded significantly. In addition, too many of EPA’s new regulations have been rejected by reviewing courts on the ground that they fail to provide regulated parties with fair notice; beyond this, ambiguous regulations may preclude enforcement actions altogether or weaken the hand of Agency personnel in negotiating individual settlements. To correct these problems, EPA’s top managers need to promote an Agency culture in which enforcement and regulatory enforceability are given added importance. OECA should cultivate allies in DOJ and EPA’s 10 regional offices, fight for more resources, and train new members of the Agency’s enforcement staff in regulatory development. From the standpoint of environmental protection, the enforceability of new EPA regulations is absolutely critical.

Joel A. Mintz is Professor of Law at Nova Southeastern University, Shepard Broad College of Law.

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