31 ELR 10906 | Environmental Law Reporter | copyright © 2001 | All rights reserved

Environmental Enforcement: The Impact of Cultural Values and Attitudes on Social Regulation

James A. Lofton

The author is an Atlantic Fellow in Public Policy, Cambridge University. He thanks Clifford Rechtschaffen, of Golden Gate University School of Law, and Joanne Scott, a member of the Faculty of Laws at Cambridge University, for their review and comments.

[31 ELR 10906]

The process of protecting the environment is big business. The U.S. Environmental Protection Agency (EPA) is now the federal government's largest regulatory agency, with 18,000 employees and a budget of $ 7.8 billion for fiscal year (FY) 2001. Complying with the laws and regulations that EPA is charged with upholding is even bigger business. Compliance costs induced by environmental regulations in the United States are estimated to have cost the regulated community $ 180 billion in 1999.1 Thus, there is cause for keen interest among the regulated community, legislators, and commentators about how EPA goes about its business. In recent years, EPA has been under considerable criticism by business leaders, and their supporters in state governments and the Congress, for being too heavy-handed—too aggressive, too quick to sue, and too adversarial with those it regulates.2 As a result, an effort is underway to attempt to reform EPA and how it does the work of protecting the environment and ensuring compliance with environmental laws. Reformers want to make EPA more "user friendly." EPA's critics say that if EPA were to take a more cooperative approach, the regulated community would be more receptive and less hostile to environmental regulation. The argument is that if EPA functioned more as an adviser and less as an environmental policeman, the same goals could be met at less cost. The logic is that an ethic of trust and cooperation would be forged that fosters openness, and a spirit of partnership would emerge that would replace the old command-and-control paradigm.

In contrast to the enforcement program in the United States, the United Kingdom has a long tradition of working cooperatively with British industry in social regulation including environmental compliance. This Article examines how the American and British versions of environmental compliance assurance and enforcement evolved and shows that cultural, social, and historical differences account for both the divergences in the systems and the efficacy of the system in each country.

U.S. Environmental Enforcement: The Legacy of Command and Control

A Deterrence-Based Approach to Environmental Regulation

Throughout EPA's 30-year history, America's environmental improvements have been attributable to a strong set of environmental laws and consistent enforcement of those laws. As is aptly written in EPA's Operating Principles for an Integrated EPA Enforcement and Compliance Assurance Program,

Throughout the past twenty-five years, the EPA has relied on a strong, aggressive enforcement program as the centerpiece of its efforts to ensure compliance with national environmental laws. This approach has served the nation well, and has created a culture of environmental compliance that is unsurpassed in the world.3

EPA's enforcement program traditionally has been based on a philosophy of deterrence. "Government must maximize its effectiveness through deterrence, publicizing cases, and support of effective efforts by citizens and all levels of government."4 As explained in two thorough articles by Prof. Clifford Rechtschaffen, one of which was published in The Environmental Law Reporter, deterrence-based enforcement has as its central goal the punishment of wrongdoers. If a rule is broken, it merits sanctioning. Typically, inspections by EPA enforcement staff are designed to detect noncompliance and gather evidence for use in enforcement cases.5 EPA enforcement staff and trial attorneys handling enforcement cases at the U.S. Department of Justice (DOJ) have been unapologetic in their determination to reward serious noncompliance with environmental laws and regulations with increasingly substantial fines that are meant to send a message to the regulated community—noncompliance with environmental requirements will be penalized and the penalties will be higher than making the appropriate investments in time and effort to comply with the rules and laws that protect the environment.

[31 ELR 10907]

The U.S. Approach Is Adversarial

A rule-oriented, deterrence-based enforcement approach is by nature adversarial, and aggressive enforcement, even of laws designed to protect the environment, is bound to draw criticism. American business has long been hostile to centralized government, and command-and-control strategies have aggravated an already strained relationship between government and industry—industry thinks government regulators are unreasonable, and regulators think industry is not to be trusted.6 Many American executives blame environmental regulation for many of the difficulties that have confronted the American economy in recent years. Environmental rules have been accused of reducing productivity, increasing inflation, and unemployment, creating additional paperwork and diverting corporate research and development expenditures from productive to nonproductive uses.7 The opposition to environmental requirements has been fueled by public criticism of EPA and other regulatory agencies. Members of Congress have repeatedly referred to EPA inspectors as part of an "environmental Gestapo."8

The Big Business Lobby for Weakening Environmental Laws

As a result, big business and its supporters have attempted to roll back environmental laws that they consider to be unreasonable and too costly. In 1994, with the election of the 104th Congress and the Republican majority's "Contract With America" as their manifesto, the political climate seemed sympathetic to corporate interests. The Republican freshmen who came to power viewed environmental protection as one of the evils of "big government" and they aggressively sought to cut it back. Proposals were made to radically weaken the major environmental statutes, including the Clean Water Act (CWA), the Clean Air Act (CAA), and the Endangered Species Act.9 As he has done again recently, Sen. Frank Murkowski (R-Alaska) introduced a bill to open up the 19-million acre Arctic National Wildlife Refuge in Alaska for oil drilling.10 In addition, the House of Representatives cut EPA's budget by 30% and its budget for enforcement activities by 50%.11

However, not only did the attempt to prune environmental legislation not work, it backfired on the Republican congressmen. The environmental community zeroed in on 19 Republican incumbents, and 16 of those on the "hit list" were defeated in the congressional elections of 1996.12 It was clear that the anti-environmentalists in Congress did not represent the views of the American people in the mid-1990s, nor do they today. In April 2001, a Gallup poll showed that Americans favor environmental protection over energy drilling and economic growth. It also demonstrated that the public disapproved of the Bush Administration's decision not to adhere to the treaty on global warming.13 Polls have shown repeatedly that the public places a high value on the environment and gives President George W. Bush low marks for his handling of it.14 Clearly stung by the reaction to many of its decisions that have been perceived as anti-environmental, the Bush Administration let stand some regulations proposed in the waning days of the Clinton Administration.15 For example, EPA will be allowed to toughen rules on activities that affect wetlands and will require many businesses to make public the details of their emissions of lead into the environment.16

The Enforcement Reform Movement

The deterrence-based approach of environmental enforcement employed by the federal government in the United States has also come under attack from a different quarter. Conservative state governments and their allies have aggressively championed a "compliance first" strategy that emphasizes working cooperatively with violators.17 State governments, which already carry out about 80% of civil enforcement activity, have advocated that they themselves take an even bigger role in environmental enforcement and that the federal EPA shift away from traditional enforcement activities toward compliance assistance programs.18 Many states argue that the appropriate response to noncompliance is working with violators to achieve compliance rather than initiating enforcement actions. These states contend that education and technical assistance are better methods to achieve compliance, and thus they have advanced compliance assistance programs as the mode of first choice. These jurisdictions claim that they can achieve environmental goals faster, cheaper, and with more goodwill by reducing reliance upon aggressive enforcement. Thus, over the past 5 to 10 years, the states have expanded compliance assistance programs to include workshops, fact sheets, web pages, technical assistance visits, and plain English guides that explain regulatory requirements. At the same time, states have cut back on the use of deterrence-based tools such as traditional inspections, enforcement actions, and penalties.19 Because environmental law is based on a model of federalism giving the states authority to implement federal statutes but only under federal oversight, the states want to tame EPA. Some of the states think they "look bad" when EPA brings an enforcement action; moreover, states often disagree with EPA's interpretation of the law or regulation or with the severity of the alleged transgression.

[31 ELR 10908]

Is the British Style of Enforcement a Model for the United States?

The British Approach Is Similar to the Approach Advocated by Reformers in the United States

The British approach is similar to the approach advocated by state governments in the United States.20 Like the state governments, British environmental regulators view an enforcement action as a "failure" rather than a success.21 In England, inspectors for the Environment Agency for England and Wales (Environment Agency) rarely impose sanctions on firms found to be in violation, relying instead on a system of informal negotiation and persuasion to achieve compliance. The development of an on-going relationship is central to the enforcement style.22 The central assumption of enforcement personnel is that their efforts will be more productive if they are conciliatory rather than coercive, and that they will achieve the most compliance by maintaining good relations with regulated entities. The work of British environmental agencies is technically and scientifically based rather than founded on concepts of rules, sanctions, and other penalties. Thus, education and advice are perceived as being more important than prosecution or other formal enforcement mechanisms.23

EPA has often measured its success by the number of enforcement actions and the amount of fines imposed.24 However, the Environment Agency has been careful to state that its goal is to work together with those it regulates, and its "success will therefore not be measured simply in terms of the frequency with which we carry out inspections, take enforcement action, or call for legislative changes. Instead, it will be assessed and measured by the lack of the need to take such actions."25

In sum, American regulatory policy has been more ambitious, but has produced greater resistance from business.26 British regulatory authorities demand less, but because their demands are perceived as reasonable, industry is more likely to comply with them.27 However, as will be developed more fully below, business opposition to environmental regulation in the United States has more to do with politics than with the way that regulators interact with the regulated community.

Are Environmental Regulators More Effective in Great Britain?

In comparing U.S. and British environmental enforcement programs, some commentators have argued that the British system of environmental compliance assurance is at least as effective in achieving environmental compliance as its more aggressive American counterpart.28 However, the question for American policymakers in deciding whether to adopt an enforcement program similar to the British system is whether such an approach would work in America. The commentators who favor the British approach have failed to take into account important Anglo-American social, political, and historical differences that must be examined before a well-reasoned judgment can be made.

According to David Vogel, most of the critical differences in British and American regulatory practices have arisen since the 1960s, which was at the beginning of the environmental movement in the United States.29 It was during that period that regulation in the United States shifted away from the states and cities to the federal government. On the whole, federal regulation tended to be noticeably more aggressive than state and local efforts had been in policy areas such as environmental protection, consumer protection, occupational health and safety, and equal employment.30 Why, then, did American social regulation evolve into a more legalistic and adversarial system than its counterpart across the Atlantic? Several writers have attributed the divergence to historical and cultural distinctions in Anglo-American attitudes and values.31 In the past, Europe was ruled by hereditary elites and there were sharp differences between ruler and the ruled. Administrative power grew out of the monarch, whose legitimacy and authority were rarely questioned. This led to a dominant value system which encouraged [31 ELR 10909] deference to authority and produced a style of governance that has essentially survived political reforms.32

The desire by British industrialists for social acceptability also made them more willing to accept regulation of business. It was a way of demonstrating that one had successfully transcended one's bourgeois origins and had become a gentleman. The development of a system of regulation in Britain was based on informal social controls, or as one official put it, on the assumption that manufacturers are "gentlemen desirous of doing what is right."33 The higher echelons of the larger businesses were dominated by men whose standards had been formed in the gentlemanly mode.34

Regulators in Britain have been able to draw on a tradition of deference toward public authority on the part of both industry and the public.35 The relative willingness of the British community to cooperate with regulatory authorities in a variety of areas has been symptomatic of a much broader acceptance of public authority.36 This benign and deferential British view of political authority is possible because the public seems not to be particularly distrustful of government in general.37 The British business community exhibits a degree of deference toward the norms and values of the civil service that has no equivalent in the United States.38 Unlike in the United States, trade associations in Great Britain also represent an important source of peer pressure on firms which makes them more susceptible to social pressure from both government officials and other firms to "behave responsibly."39 As a consequence, the majority of inspectors believe that most people comply with the law as a matter of principle. "People comply either because it is right to do so, or because there is a law which requires them to act in certain ways, and it is right to comply with the law."40 The prevailing belief in Britain is that people are reasonably capable of regulating themselves without frequent or prominent displays of legal activity.41

Complementing this deferential attitude toward public authority, and perhaps partly because of it, Great Britain was successful in developing and maintaining a competent and highly respected civil service.42 The relatively high social status enjoyed by civil servants enabled regulators to secure compliance by exerting social pressure. Such public trust in the basic decency and competence of the civil service assists in fostering a view of the essential legitimacy of governmental intervention in Britain.43

In contrast, a mistrust of public authority in general and of professional values and expertise in particular has deep roots in American political culture. In comparison to other countries, commentators have noted the characteristically American tendency to challenge the legitimacy of a law and its agents.44 It is fair to say that Americans have a long tradition of challenging rules or laws that they consider to be unreasonable, unfair, or to which they are philosophically opposed. Moreover, American suspicion of any centralized political power goes back to revolutionary-era republicanism.45 This general American trait is consistent with the philosophy that is at the root of American economics. In 1776, Adam Smith published his An Inquiry Into the Wealth of Nations, the year that the United States won its independence. The book heralded the economic philosophy of laissez-faire and became a charter for American economic liberties.46 Smith popularized the idea that an individual who acts in his own self-interest and intends only his own gain is "led by an invisible hand to promote … the public interest."47 Smith was extremely influential in the development of American economics and social thought.48 Americans, and particularly American business, strongly believed that what was economically good for the individual was also good for the American consumer. Thus, out of American history emerged values that encouraged self-assertion and a reluctance to acquiesce to authority. In America, the starting point was individuals defining personal goals. It came to be regarded as legitimate for people in America to define and pursue their own paths, to assert themselves. However, as became clear in the latter half of the 20th century, Smith's economic principles do not necessarily apply when it comes to environmental matters: what is in one's economic self-interest may not account for environmental impacts and costs that affect society at large.49

Between the mid-1960s and the mid-1970s, the period when the major initiatives in environmental policy took place in the United States, more regulatory legislation was enacted and more regulatory agencies were established to administer them than in the entire previous history of the American federal government. These sweeping changes in regulatory policy were associated with a significant reduction in the political influence of business in the United States and a corresponding increase in the power of public interest organizations that were relatively critical of business.50 [31 ELR 10910] Thus, a tension developed between a long tradition of relative economic freedom in the United States and the rising tide of environmental awareness.51 Businesses that had little or no environmental regulation before the 1960s found themselves subject to sometimes complex environmental regulations that they quickly came to view as expensive, unreasonable, and unnecessary.52 Moreover, the federal government's aggressive intrusions into all aspects of social policy conflicted with America's strong tradition of individual freedom.53 Thus, business executives in America came to regard government officials much as they view their competitors: as challengers to be met as aggressively as possible. British businessmen appear less competitive with each other and more willing to cooperate with government. To the extent that the only standard of success for American businessmen remains the "bottom line," they have regarded any restraint on management's prerogatives as threatening.54 Accordingly, there is little doubt that many businesses are philosophically opposed to the current regime of environmental regulation and consider it illegitimate.55 In contrast, British companies have not demonstrated the ideological resistance to environmental regulation that American companies have, and British business interests have not tried to undercut environmental regulation.56

Moreover, public service in the United States never managed to acquire the social status that it came to enjoy in Great Britain.57 Civil servants in the United States, including officials of regulatory agencies, were never able to acquire either the power or the prestige of their counterparts across the Atlantic. Far from viewing them as social equals, American business executives regard regulators as their social and intellectual inferiors. They might cooperate with them in their self-interest, but there is hardly any social pressure to defer to either their authority or their expertise.58

Ironically, the American commitment to openness and equal access to government may also contribute to the tension between regulators and industry. Any ordinary citizen, grass-roots organization, or public interest group has a right to comment on and participate in the regulatory process, and regulatory agencies are required to have arm's-length dealings with those they regulate so as to avoid conflicts of interest. Although less so in recent years, Great Britain has a tradition of extensive consultation of industry by government officials before regulatory policies are made and enforced. Rather than seeking to limit conflicts of interest, the British system was built on consensus. The British public perceived government officials as having sufficient integrity and competence to be able to represent its interests reasonably well, even if not all governmental decisions were subject to public scrutiny.59 In Britain the regulatory process has been less political and legalistic than in the United States; Britain has a tradition of discretionary, local decisionmaking based on pragmatism.60 What to American eyes seems to be a recipe for capture is seen in Britain as a chance for consultation.61 The process of drafting regulations has even been performed with various interest groups at the table where differences in policy could be negotiated in such a way that a consensus is reached.62 Regulation, in contrast with the American position, tends to be slower, more orderly, and predictable. This system is tolerated in Britain because of the public trust in the good faith and competence of the civil service and of government in general.

As discussed in more detail below, the British approach has been undergoing a process of change in the last 20 years. The informality and flexibility has remained, but the process of promulgating regulations has become more open, more centralized, more legalistic, and more contentious—especially in the last 10 years.63 Some of the factors that account for these changes include the requirement to harmonize regulations with European Community (EC) directives, centralization of pollution control functions in the Environment Agency, and the increased profile of environmental issues.64 In addition, the Blair Administration has recently committed itself to a policy of openness or "transparency" in government. In its Enforcement and Prosecution Policy, the Environment Agency lists as one of its principles of enforcement "transparency about how the Agency operates and what those regulated may expect from the Agency…."65 However, Britain's use of consensus in the regulatory process is certainly one of the reasons that British industry has not been philosophically opposed to regulation.66 Ironically, the trade off for the openness in government that Americans prize may be that industry, and interest groups as well, may be less trusting of government.

In sum, Great Britain and the United States have developed regulatory approaches best suited to the culture and values in each country: the cooperative approach works in Britain precisely because British business does not have a confrontational attitude toward public authority and can be trusted to negotiate in good faith because industry does not believe what is asked of it is unreasonable. The deterrence-based approach toward environmental compliance is suited to America, where the business community is highly competitive, jealous of prerogatives, and less inclined to accept the advice or authority of government officials.

As David Vogel notes:

Had the pattern of interaction between business and government remained cooperative, the United States might [31 ELR 10911] well have made less progress in improving the quality of its physical environment…. For all its myriad shortcomings, the adversarial relationship has worked; it has undoubtedly forced industry to allocate far more resources to improving the quality of the environment than it would otherwise have done.67

Conversely, a sudden shift away from deterrence-based enforcement would have a direct relationship with decreased compliance. "The forces of individual interest, once legitimized, are not easily controlled," and normative inducements for compliance are likely to be ineffective as a mode of social control.68 In short, a compliance strategy of enforcement, relying on techniques of persuasion, advice, and education is appropriate as long as the regulated community accepts the fundamental reasonableness of regulation and the authority of regulators and is inclined to accept advice. "The key is to convince corporate actors that environmental values are worthwhile and important."69

Thus, the difference in corporate attitudes toward environmental regulation in the United Kingdom and the United States is a key factor in assessing the advisability of adopting the British approach in the United States. As Professor Rechtschaffen explains, ideological resistance to regulation plays a key role in undermining compliance. "Absent deterrence, corporate actors are far more likely to adhere to laws that in their eyes are legitimate, particularly when compliance is expensive."70 Corporations violate environmental protection laws more frequently than laws designed to protect the integrity of the marketplace because environmental laws do not enjoy the same legitimacy in the eyes of businesses. People are more likely to comply with laws that are consonant with their own moral and political values. "Indeed, many law-abiding individuals ignore rules inconsistent with their beliefs if there is little or no risk of getting caught."71 Given American businesses strong hostility to environmental regulation, the belief that a deterrence-based environmental enforcement program should be abandoned on the theory that businesses will comply with environmental laws because corporate managers are law-abiding citizens is naive.72 A cooperative approach to environmental regulation will continue to be of limited usefulness until American industry is convinced of the legitimacy of environmental laws. A cooperative-based compliance program will only work with members of a regulated group who care about social concerns, perceive program benefits accurately, favor the ends of the law, and subscribe to norms of good citizenship. Where one or more of those traits is absent, the use of coercion or incentives is called for.73

Experiences With the Cooperative Approach in Virginia

One highly publicized case from Virginia illustrates the pitfalls of using the cooperative approach with a large and influential business that has been consistently hostile to environmental regulation. Smithfield Foods, Inc., and its subsidiaries (Smithfield), operate two large pork slaughtering and processing plants in Smithfield, Virginia.74 Until 1997, Smithfield discharged wastewater from both plants into the Pagan River, a tributary of the James River, which in turn empties into the Chesapeake Bay. Smithfield's wastewater discharges contain numerous pollutants from the pig slaughtering and processing operation, including phosphorus and ammonia, that are regulated under the CWA.75 Smithfield was issued a discharge permit in 1986, which was modified in 1990 to include more restrictive phosphorus limitations.76 Smithfield's violations accounted for 80% of the phosphorus flowing into the Pagan River and contributed to the closure of shellfish harvesting there.77 However, not only did Smithfield challenge the new phosphorus limitation by appealing the permit modification, the company began to talk publicly about moving its operations out of Virginia rather than complying.78

Negotiations between Smithfield and Virginia ensued. Smithfield eventually agreed to upgrade its own treatment facilities to pretreat its wastes and to connect its plants to a local sanitation district system. In January 1992, the Virginia State Water Control Board issued Smithfield a new permit, which contained a January 1993 deadline for achieving compliance with the new phosphorus limits. Smithfield never challenged the 1992 permit conditions nor sought a modification.79 However, by 1996, Smithfield had neither completed its facility upgrades norconnected to the sanitation district's wastewater treatment system and was grossly out of compliance with its permit limitations.80

In the spring of 1996, EPA requested that Virginia file an enforcement action against Smithfield for the thousands of violations at the two pork processing plants. However, under the Republican administration of then-Gov. (now Sen.) George Allen, environmental enforcement actions in Virginia had ground to a halt, in keeping with Allen's pledge to make the regulatory climate more favorable to business.81 When it became apparent that Virginia did not intend to initiate legal action against Smithfield for its CWA violations, EPA began preparations to file its own action. However, when state officials got wind of the pending federal suit, Virginia filed a complaint in state court against Smithfield in an attempt to insulate it from the EPA action.82 When EPA subsequently filed its own suit in a U.S. district court against [31 ELR 10912] Smithfield, the company claimed that EPA's claims were preempted by the protective state action filed by Virginia.83 However, the district court found that Virginia's state law is not comparable to the CWA and rejected the defense that had been provided by state officials. The court found Smithfield liable for more than 5,000 violations of permit limitations.84 In addition, the court found that Smithfield had submitted 15 months' of false reports and had destroyed more than two years' worth of incriminating records. The district court assessed a civil penalty of $ 12.6 million, then the largest in the history of the CWA. Except for remanding it to correct an accounting error in calculating the penalty, the district court's opinion was affirmed in full by the Fourth Circuit Court of Appeals.85

The belief that Virginia regulators have been lax in enforcing environmental laws is an opinion held not just at EPA but within Virginia's own state legislature. A scathing audit report in 1996 by Virginia's General Assembly found that the Virginia Department of Environmental Quality (DEQ) failed to take meaningful enforcement action against persistent and serious violators, such as Smithfield. The state auditor concluded that lackadaisical enforcement by state regulators resulted in serious noncompliers thumbing their noses at regulatory requirements. The report concluded that Virginia's top environmental officials "have chosen to disregard" the state's laws and constitution and were skirting federal environmental requirements to favor industry.86 "The state continues to experience difficulty in addressing long-term noncompliance and does not have a consistent, credible enforcement program," the report said. "DEQ's lack of leadership in these areas puts the state's future water quality at risk."87 The state auditor's conclusions are consistent with anecdotal evidence suggesting that weak enforcement and a shift to compliance-assistance activities by state agencies have contributed to significant rates of industry noncompliance.88 The Smithfield case is instructive not just to show the failure of the cooperative approach when business is hostile to environmental regulation and the extremes of agency capture. Perhaps it also allows us a window into the motives of Virginia officials who have been among EPA's severest and most zealous critics.89 Rather than viewing cooperative-based enforcement as a way to improve environmental protection, Virginia officials have used it as an excuse to allow the regulated community to ignore the law. According to former EPA Administrator Carol Browner: "I think there is a belief on the part of some in Virginia that ignoring the environment and public health standards is what the business community wants."90

Effectiveness of Deterrence-Based Enforcement in the United States

A fair amount of research and scholarly writing has been done on the efficacy of deterrence in American environmental enforcement and the dangers of abandoning it.91 It need not be repeated here. As succinctly summarized by Professor Rechtschaffen, "the evidence shows that deterrence-based approaches work, and that in the absence of meaningful sanctions, compliance suffers."92

A recent example affirms the stark reality of that statement. When Congress enacted the CAA in 1970, it decided that existing pollution sources would be "grandfathered." In other words, existing sources would not be required to install pollution control equipment that the CAA requires for new sources of air pollution. For industries such as electric utilities, Congress deemed this approach an appropriate compromise. Retrofitting air pollution control equipment on power plants was expensive, and since many of the nation's existing power plants were close to their expected life spans of 35 to 40 years,93 it did not make economic sense to install expensive equipment that would be taken out of service in a relatively short amount of time. However, Congress did not intend these sources to remain permanently exempt from the Act's pollution control requirements. Instead, Congress provided that existing sources would become subject to the Act's requirements when these sources were "modified."94 However, industry argued to EPA that the definition of "modification" in the CAA was too broad: it included "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source."95 Industry correctly asserted that the "any physical change" definition would include even the daily routine maintenance necessary to keep plants running. Utilities pointed out that just running the plants would qualify as "modification" of an existing source under the CAA, and all existing sources, no matter [31 ELR 10913] how old and close to closure, would be required to install air pollution controls. EPA accepted the point and, without defining the terminology, exempted "routine maintenance, repair, and replacement" at power plants from permitting requirements under the CAA.96

However, by the late 1990s, it had become apparent to EPA that the electric power industry had used the "routine maintenance" exception as a major loophole in the CAA. EPA discovered that coal-fired power plants built as early as the 1950s, which supposedly had a productive life expectancy of 35 to 40 years, were still going strong at the end of the 1990s. EPA undertook an industrywide investigation and determined that the industry had performed major overhauls and replacements of major component parts costing millions (and even tens of millions) of dollars at coal-fired plants under the guise of "routine maintenance, repair, and replacement." These major component replacements and improvements were designed to extend the lives of the plants; but by calling them "routine,"97 the electric utility industry had circumvented the requirement to install air pollution controls required by the CAA. The result was that millions of tons of illegal nitrogen oxides (NOx) and sulfur dioxide (SO2) were emitted by these coal-fired plants annually.98

In November 1999, EPA began a national initiative against electric power utilities that operate coal-fired power plants. The government has filed eight suits against private electric utilities, and EPA instituted an administrative case against a federal operator, the Tennessee Valley Authority (TVA). The first case to settle was in February 2000, when Tampa Electric Company committed to spend $ 1 billion to reduce 380 million pounds of emissions of NOx and SO2 annually.99 The TVA case was the first to be litigated, in July 2000. In September 2000, the Environmental Appeals Board issued its Final Order on Reconsideration ordering TVA to install air pollution controls on 10 of its coal-fired power plants.100 The third domino to fall was in November 2000, when a settlement in principle was reached with Virginia Electric Power Company (VEPCO). In this settlement, the company agreed to spend $ 1.2 billion to reduce NOx and SO2 from eight coal-burning plants by 70%.101 In addition, VEPCO will perform $ 13.9 million in environmental projects, and pay a $ 5.3 million civil fine. The 8 Virginia plants emit as much NOx and SO2 as all 30 electric power plants in New York State combined. VEPCO's settlement will be the largest settlement in the history of the CAA.102

The EPA power plants initiative illustrates several points. First, the use of the "routine maintenance" exception is a good illustration of how American businesses have taken legalistic views of environmental requirements when it is to their advantage to do so, going to the very edge of technical noncompliance—and sometimes over. For example, in the TVA case, TVA managers were aware that if the scale and magnitude of the massive construction projects needed to keep the plants running came to EPA's attention, it was unlikely that EPA would agree that these projects were routine maintenance, repair, or replacement.103 Rather than seeking agency guidance to determine if their practices were legal, TVA managers took careful notes at power industry conferences where they were counseled to use the term "routine maintenance" rather than "modifications" when talking to EPA officials about component replacements at coal-fired plants.104 Critics complain that environmental regulations are too complex, too technical, and too long.105 However, the power plant cases show that the regulated community itself is at least partly to blame. Environmental rules are complex because, as illustrated by the power plant cases, regulated entities will attempt to exploit the slightest ambiguity in simple, generally worded rules, forcing regulators to draft detailed provisions in an effort to cover every contingency.

Second, when finally confronted with EPA's position that major construction projects at aging coal-fired plants did not qualify as routine maintenance, repair, or replacement, the industry was recalcitrant. Despite weeks of meetings, talks and negotiations, not a single utility would accept the Agency's judgment that the law required air pollution controls at coal-fired power plants where major overhauls had been performed and major components had been replaced—until the lawsuits were filed. In sum, EPA's recent experiences with the power industry confirm the view that there is reason to believe that industry will not monitor itself or comply on its own without coercion.

The Efficacy of Deterrence-Based Enforcement

The passage of environmental laws and their aggressive enforcement has made a difference in environmental quality in the United States. For example, more than 6.8 billion pounds of pollutants were reduced as a result of federal enforcement actions in FY 1999.106 These actions resulted in the reduction of 5.8 billion pounds of NOx, 573 million pounds of contaminated soil, 200 million pounds of iron, and 129 million pounds of polychlorinated biphenyl (PCB) waste.107 EPA also reported that more than 3,000 facilities took actions to achieve compliance or took actions to improve the environment as a direct result of civil enforcement settlements in FY 1999. For example, these settlements required defendants to conduct activities such as industrial process changes, emission or disposal changes, improvements in the use or handling of pollutants to achieve emission and discharge reductions, and improvements in facility [31 ELR 10914] management practices.108 Initial reports for FY 2000 indicate that enforcement actions were responsible for major pollution reductions in 2000 including 905 million pounds of contaminated soil and sediments, 11.6 million pounds of chromium, 117 million pounds of solvents, and 21 million pounds of PCB wastes.109

Clearly, environmental enforcement actions are responsible for steady improvements in environmental quality in the United States that would not otherwise have happened. In other words, it is undeniable that EPA's enforcement program is an unqualified success, which has contributed to lasting improvements in air, water, and land quality.

Convergence of Regulatory Approaches?

Having examined the cultural differences that account for the divergence in national styles of environmental regulation and the relative success in each country, it is clear that there are political winds blowing on both sides of the Atlantic that will undoubtedly make the regulatory approaches in the United States and Great Britain more alike. In the United States, because of reform pressure, EPA has made concerted efforts to institute and integrate compliance assistance and compliance incentive strategies in its enforcement program.110 These strategies include information disclosure measures, voluntary audit programs, environmental management systems, EPA's 33/50 Program, Project XL, technical assistance programs, and trading of emissions credits.111 These programs and other "ideas that actually work" to achieve compliance with environmental laws are an opportunity to improve environmental quality by integrating features of the cooperative model in the existing environmental compliance program. These nonadversarial strategies present an opportunity for people of differing ideological persuasions to come together around practical measures that move in the direction of reducing pollution and protect the environment.112 However, a wholesale shift to a cooperative-based strategy without weakening environmental compliance will first require a shift in the mind set of corporate America. Businesses will need to "modernize" their attitudes and ways of thinking about environmental values. As Maarten Hajer, one of the leading theorists of ecological modernization, sees it, this new thinking will require pulling together several concepts: sustainable development in place of unbounded growth; a preference for anticipation rather than cure; equating pollution with inefficiency; and treating environmental regulation and economic growth as mutually beneficial.113

The principle of sustainable development has taken root in Europe. In fact, Stuart Bell and Donald McGillivray state flatly that "the concept of sustainable development is central to the recent and future development of environmental law and policy."114 Evidence of the transformation and integration of this principle can be seen in European and British law. Article 2 of the EC Treaty states that the EC "shall have as [one of its tasks] to promote throughout the [EC] harmonious, balanced and sustainable development of economic activities."115 This requirement applies across all policy areas and legislation and is supplemented by a further provision in the Treaty, which specifically requires integration of environmental protection requirements into other policy areas "in particular with a view to promoting sustainable development."116 The EC's policy framework on sustainable development was set forth in the Fifth Environmental Action Programme: Towards Sustainability, which set out a series of long-term objectives for sustainable development in the EC, and which was followed in 2001 by the Sixth Environmental Action Programme: Environment 2010: Our Future, Our Choice.117 The new program sets out five key approaches to achieve environmental improvements: the implementation of existing environmental legislation; integration of environmental concerns into all policy areas; working closely with business and consumers to identify solutions; developing better and more accessible information on the environment for citizens; and developing a more environmentally conscious attitude toward land use.118

At the national level, the best discussion of British policy on sustainable development can be found in the recent White Paper, A Better Quality of Life: A Strategy for Sustainable Development for the United Kingdom,119 which contains aims, priorities, and government policies for promoting sustainable development. The 1999 White Paper describes how the government will measure progress and describes measures to build sustainable development into policies and decisions in government and across society. It also looks at how to create a sustainable economy with less impact on the environment. The initial step of incorporating sustainable development in U.K. law was taken in the introduction of the Environment Agency's principal aim under § 4 of the Environment Act of 1995. In discharging its functions, the Environment Agency is required to protect or enhance the environment so as to make the contribution toward attaining the objective of achieving sustainable development. On the local level, in 2000, the British Parliament passed the Local Government Act 2000, which requires localities to develop plans for sustainable practices. Every local authority must prepare a community strategy for promoting or improving the economic, social, and environmental well-being of its area and contributing to the achievement of sustainable development in the United Kingdom.120

The British government's seriousness about steering the country in a more sustainable direction can be seen in the [31 ELR 10915] programs initiated at all levels of government. The Blair Administration has mandated that the process of greening Great Britain will start with government. A Cabinet Committee on the Environment has been established, chaired by the deputy prime minister, which brings together ministers from all key departments to consider environmental policies and to coordinate on sustainable development. Each department has a "green minister," who is responsible for sustainable development and environmental matters in their own departments. The green ministers are charged to work collectively to promote the integration of sustainable development across government and in the public sector, to encourage the use of environmental appraisals as a part of policy-making, and to improve environmental performance of departments in managing their buildings and facilities.121

In addition, the U.K. Sustainable Development Commission was launched in October 2000 by the prime minister. The commission's role is to advocate sustainable development across all sectors in the United Kingdom, review progress toward it, and build consensus on the actions needed to achieve further progress. The members of the commission are drawn from business, local government, academia, and public interest organizations.122 Within government, teams have been set up to increase awareness and promote sustainable practices at the national, regional, and local levels. For instance, at the national level, the Sustainable Development Unit at the Department of the Environment, Transport, and the Regions (DETR) is responsible for a public awareness campaign that promotes sustainable lifestyles and practices. Called "Doing Your Bit," the (BRITISH POUND) 25 million initiative includes newsletters, websites, press releases, messages from well-known government officials, an interactive road show, and even includes a well-produced promotional campaign that has appeared on British television and radio. The initiative aims to communicate key "quality of life" messages. It encourages people to take simple everyday actions to help protect their local and global environment and reinforces and complements the environmental messages and activities of the Energy Saving Trust, Going for Green, and other partner organizations, local authorities, and businesses. The campaign's key messages focus on four areas: showing how individuals can cut local pollution by changing their travel habits; fighting global warming by using energy efficiently; conserving water; and cutting waste.123 At the regional level, Sustainable Awareness Teams have been set up to assist small businesses in developing practices that cut energy usage, conserve resources, and reduce waste.124

In short, the British government is engaged in an institutional effort to promote environmental values, to increase the public awareness of the consequences of environmental problems, and to motivate and encourage both the British public and British industry to develop a more environmentally conscious attitude that is consonant with the goals of sustainable living. These environmental goals and strategies are consistent with Prime Minister Tony Blair's "third way" approach, which attempts to transcend both socialism on the one hand, and neoliberal free market capitalism on the other.125 In short, the policies and strategies being developed and implemented by the British government will foster the values and attitudes in society that are necessary for a cooperative approach to environmental regulation to work effectively.

Ironically, though, while implementing sustainable development strategies, the British government has also gotten tougher on business. The Environment Agency has ruffled corporate feathers by publishing a semi-annual Spotlight on Business Environmental Performance, which tracts the comparative performance of individual companies. The so-called Hall of Shame, which now reports on good performers as well as bad, publishes the names of 30 companies that received the highest environmental fines in England and Wales. This report has been met with predictable hostility by British industry.126 In May 1999, the government launched a "pollution inventory" on the Environment Agency's website inspired by EPA's toxics release inventory (TRI).127 Like the TRI, the Environment Agency's pollution inventory is designed to pressure those businesses who pollute the most to reduce emissions through public exposure.

Even more interesting is the widely held perception in government and academic circles in Britain that fines for environmental violations are too low.128 In March 2000, an advisory panel appointed by the Home Secretary recommended sentencing guidelines129 on environmental offenses to the Court of Appeal in response to the general concern about the overall level of fines imposed by the courts.130 And in September 2000, the chairman of the Environment Agency stated that:

We are deeply concerned that it can still be cheaper for a business or individual to commit an environmental crime than it is to comply with the law. The fines are still derisory compared to the state of corporate finance. It is simply not enough. It is not a deterrent. It is not even a mosquito bite.131

In 1999, only 32 British businesses were fined more than (BRITISH POUND) 10,000 for environmental offenses. The average fine imposed by the courts in 1999 was (BRITISH POUND) 3,500, and total fines for environmental offenses in 1999 in England and Wales amounted to (BRITISH POUND) 2,695,192.132 This amount is slightly less than 2% of the fines assessed in the United States for environmental offenses for the same time period. One commentator [31 ELR 10916] recently suggested that routine trivialization of environmental offenses occurs in the lower courts.133 Environment Minister Michael Meacher, has called for a substantial increase in the level of fines: "It has to be six figures at least, in my opinion, in these cases."134

What conclusions can we draw from Great Britain's increasingly aggressive stance with industry on environmental compliance? There are a number of possibilities. The first is purely political. In a society that promotes sustainability and takes global environmental issues such as climate change seriously, does the Blair Administration feel pressured to show that it is "doing something" in the short run by punishing polluters with stiffer fines? Or have businesses in Britain become less deferential to regulators, less susceptible to persuasion, and generally more opposed to social regulation that impacts on the bottom line? In other words, as businesses become multinational and even global, are businesses in the United Kingdom becoming more like their corporate cousins on the other side of the Atlantic who only respond to a "get tough" approach?

Bell and McGillivray attribute the use of tougher enforcement tactics to a basic shift in the way that environmental problems are perceived, not only by the public but also by the environmental agencies and even the regulated community. As environmental issues have become more important in the public eye, there is a desire to ensure that environmental standards are maintained and environmental damage minimized. As the public becomes more aware and interested in the environment and the impacts of pollution, there follows a demand for action against those who are responsible for environmental degradation. Bell and McGillivray conclude that the changes in public awareness and concern about the environment necessitate a shift from compliance-based strategies to a tougher approach.135

In addition, the creation of the National Rivers Authority under the Water Act of 1989 and subsequently the Environment Agency under the Environment Act of 1995 allowed the new and separate enforcement agencies to adopt an arm's-length relationship with operators. This new relationship has fostered a tougher approach to enforcement. Another factor that has increased the distance between regulator and regulated has been the adoption of transparent policies on enforcement and greater third-party involvement in setting standards and drawing up guidance documents.136

The U.K.'s membership in the European Union (EU) has had a tremendous impact on environmental policy in Great Britain and consequently on the way in which environmental laws and regulations are administered. In the years since 1972, the EU has created a system of environmental governance with a wide range of legislative measures, extending from pollution control in water and air through policies on solid waste management, protection of wildlife, to requirements for how environmental policies are managed and administered. The EU's environmental policy is broad in scope, extensive in detail, and often stringent in effect.137 Most of the EU's environmental policy measures take the form of "directives" which Member states, including the United Kingdom, are required to implement. If a Member state fails to implement a directive, which includes transposing environmental directives into national law and regulations and then enforcing those requirements on the regulated community in the Member state, the EC can bring an enforcement action against the Member state in the European Court of Justice.138 As a result, Member states feel a constant pressure from Brussels to implement and apply EU environmental measures at the national level. British regulators may feel compelled to be more aggressive in enforcing EU environmental directives because the EC's office responsible for environmental legislation and policy, Directorate-General XI, takes a strict and legalistic approach to failure to enforce EU environmental law by the Member states.

Finally, the U.K.'s Environment Agency may be borrowing more aggressive tactics from the United States because British regulators are trying to integrate "ideas that actually work" within the confines of their own brand of environmental enforcement. In every society there are those who will have a hard time complying with the law unless coercion, or the threat of coercion, is involved. Even with a co-operative approach, the ultimate recourse is sanction. Because the level of fines has traditionally been notoriously low and therefore not an effective sanction, the British government has groped for other strategies to deal with serious and persistent environmental offenders.

American Public Opinion on the Environment

In 1984, Oxford Prof. Keith Hawkins argued that society had ambivalent attitudes toward polluting activity.139 Professor Hawkins asserted that the ambivalence was due in part to the fact that most pollution results from otherwise productive, economically desirable activity that contributes to the material well-being of society.140 However, as noted above, Professor Hawkins' views do not reflect public attitudes and opinions today in either the United States or Great Britain. For example, in a March 2001 Gallup poll, 81% of those surveyed were in favor of higher emissions and pollution standards for business and industry, and 77% of those surveyed favored stronger enforcement of federal environmental regulations.141 In fact, nationwide polls indicate a steady and enduring concern among Americans for the health of the environment. Over the last 15 years, Americans have consistently indicated that the environment should be given priority over the economy.142 Some scholars [31 ELR 10917] have explained the social concern about the environment as an element of a much broader shift in values that emerged beginning in the late 1960s. In his work on the "silent revolution," Ronald Ingelhart observed a marked shift in value preferences from goals that related to "scarcity values" to "post-materialist" values. After a certain level of prosperity has been reached, it is argued, people become less concerned with economic issues than with quality of life issues.143

In one of the most penetrating looks at what Americans think about the environment and why, anthropologists Willet Kempton, James Boster, and Jennifer Hartley found that environmentalism has become integrated with core American values such as parental responsibility, obligation to descendants, and traditional religious teachings. They found that in America "environmentalism goes deeper than just opinion or attitude to core values and fundamental beliefs about the world."144 Clearly, a significant portion of the population believes that protection of the environment has a decidedly moral character, and that pollution, even when it results from economically desirable activity, is morally wrong.145 As Bell and McGillivray have observed, "where public interest in the environment increases, the moral opprobrium attaching to pollution increases."146

Similarly, the American public continues to support environmental protection as is evident from Gallup's Earth Day 2001 poll. In contrast to EPA's critics, only 11% of the American public feel that government is doing "too much" in terms of protecting the environment.147 Moreover, two-thirds of Americans say that American corporations are doing "too little" to protect the environment.148 The clear implication is that EPA's critics represent only a small minority in the United States, and any attempt to change EPA's efforts to enforce environmental laws will be met with attendant political risk. Ironically, it is clear that most Americans believe that industry should show more concern for the environment, not that regulators should take a more conciliatory stance with business.

Conclusion

Deterrence-based environmental enforcement has not evolved by accident in the United States. The aggressive and adversarial enforcement philosophy adopted by EPA and the DOJ is grounded in necessity: because many American businesses are philosophically opposed to environmental regulation, only coercion or the threat of coercion works to assure compliance with America's environmental laws and regulations. Cooperative-based approaches, such as market-based strategies, can and should be used to augment and enrich EPA's enforcement program, but a wholesale shift to a cooperative approach without a concurrent shift in corporate attitudes and values would have disastrous consequences for environmental quality in the United States. A change in enforcement strategies can only be successful if businesses are first convinced of the legitimacy and value of environmental protection. Environmental costs must be internalized, and corporate actors must be convinced to take the far-sighted view that in the long run, pollution means inefficiency and environmental responsibility makes good economic sense. If states such as Virginia are genuinely interested in implementing successful cooperative-based compliance assurance programs, then they must first institutionalize the concepts of sustainable development and the integration of environmental concern with social and economic policies. As has begun to happen in Great Britain, programs must be implemented to convince businesses and society in general that environmental and economic values are not mutually exclusive.

1. Paul R. Portney, Environmental Policy in the Next Century, in SETTING NATIONAL PRIORITIES: THE 2000 ELECTION AND BEYOND 359, 366 (Henry J. Aaron & Robert D. Reischauer eds., 1999).

2. See Clifford Rechtschaffen, Competing Visions: EPA and the States Battle for the Future of Environmental Enforcement, 30 ELR 10803 (Oct. 2000) [hereinafter Rechtschaffen, Competing Visions]; Clifford Rechtschaffen, Deterrence Versus Cooperation and the Evolving Theory of Environmental Enforcement, 71 S. CAL. L. REV. 1181 (1998) [hereinafter Rechtschaffen, Deterrence Versus Cooperation]; Rena I. Steinzor, The Corruption of Civic Environmentalism, 30 ELR 10909 (Oct. 2000); Rena I. Steinzor, Reinventing Environmental Regulation: The Dangerous Journey From Command to Self-Control, 22 HARV. ENVTL. L. REV. 103 (1998) [hereinafter Steinzor, Reinventing Environmental Regulation].

3. U.S. EPA, OPERATING PRINCIPLES FOR AN INTEGRATED EPA ENFORCEMENT AND COMPLIANCE ASSURANCE PROGRAM (1996), available at http://epa.gov/oeca/princip/html (last modified Feb. 25, 1998).

4. Id.

5. See Rechtschaffen, Competing Visions, supra note 2, at 10803; Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1186-88.

6. See DAVID VOGEL, NATIONAL STYLES OF REGULATION: ENVIRONMENTAL POLICY IN GREAT BRITIAN AND THE UNITED STATES 23 (Comell Univ. Press 1986).

7. Id.

8. Rechtschaffen, Competing Visions, supra note 2, at 10806 & n. 17.

9. See Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1194 & n.43; WILLIAM WILSON, MAKING ENVIRONMENTAL LAWS WORK: LAW AND POLICY IN THE U.K. AND THE U.S.A. 21 (Hart Press 1999).

10. See WILSON, supra note 9, at 21.

11. Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1194 & n.43.

12. WILSON, supra note 9, at 23.

13. Katherine Q. Seelye, Bush Endorses Rule on Lead Emissions Proposed by Clinton, N.Y. TIMES, April 17, 2001, at A1.

14. Id.

15. Id. See also Mike Allen, EPA Will Toughen Rules on Wetlands, WASH. POST., Apr. 17, 2001, at A1; Mike Allen, EPA to Keep Lead Emissions Rules, WASH. POST, Apr. 18, 2001, at A3.

16. Id.

17. Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1184 & n.2.

18. Rechtschaffen, Competing Visions, supra note 2, at 10806.

19. See id. at 10806-28; Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1183-20 (thorough discussions of the reform movement and the arguments of its proponents).

20. STUART BELL & DONALD McGILLIVRAY, ENVIRONMENTAL LAW 241-42 (Blackstone 5th ed. 2000) (the British approach to environmental regulation facilitates the development of a flexible relationship between the regulator and the regulated which is characteristic of the compliance style of enforcement).

21. Personal Interview with Abdul Sattar, Environmental Protection Officer, Environment Agency (Jan. 16, 2001) [hereinafter Sattar Interview]; see also VOGEL, supra note 6, at 87 (prosecution is regarded not only as reflecting badly on the company, but also as a failure on the part of regulatory officials: it demonstrates that efforts to persuade and educate industry regarding their responsibility to control emissions have been unsuccessful); KEITH HAWKINS, ENVIRONMENT AND ENFORCEMENT: REGULATION AND THE SOCIAL DEFINITION OF POLLUTION 5 (Oxford Univ. Press 1984) ("punishment is an unsatisfactory operational philosophy" in a compliance system because it risks damage to the ultimate end of enforcement, i.e., compliance).

22. Personal Interviews with Nicholas Sauer, Environmental Scientist, Environment Agency (Oct. 9, 2000); Paul Wright, Environmental Manager for the Bedford, England office, Environment Agency (Nov. 14, 2000); Sattar Interview, supra note 21; see also BELL & McGILLIVRAY, supra note 20, at 242; Keith Hawkins, Rule and Discretion in Comparative Perspective: The Case of Social Regulation, 50 OHIO ST. L.J. 663, 665 (1989); HAWKINS, supra note 21, at 4 ("In a compliance strategy, … the style is conciliatory and relies upon bargaining to attain conformity. Enforcement here is prospective; a matter of responding to a problem and negotiating future conformity to standards which are often administratively determined.").

23. HAWKINS, supra note 21, at 4.

24. Rechtschaffen, Competing Visions, supra note 2, at 10804; JOEL MINTZ, ENFORCEMENT AT THE EPA: HIGH STAKES AND HARD CHOICES 102 (1995).

25. ENVIRONMENT AGENCY, CREATING AN ENVIRONMENTAL VISION (2000), available at http://www.environment-agency.gov.uk/aboutus/vision/index.htm [hereinafter ENVIRONMENTAL VISION].

26. VOGEL, supra note 6, at 23.

27. However, there is a danger in overstating the distinctiveness of the two approaches. Even the cooperative approach relies on the threat of coercion and prosecution. See Kathryn Harrison, Is Cooperation the Answer? Canadian Environmental Enforcement in Comparative Context, 14 J. POL'Y ANALYSIS & MGMT. 221, 222 (1995).

28. VOGEL, supra note 6, at 21-27; see also PHILIP HOWARD, THE DEATH OF COMMON SENSE: HOW LAW IS SUFFOCATING AMERICA 7-8, 32-34, 57-58, 176 (1994) (a diatribe against big government, in which the author takes particular aim at EPA and environmental regulations that he views as unreasonable, inefficient, and misguided. Howard claims that British environmental regulators are "highly effective" and that their relationship to the regulated community is "more like a doctor getting a patient's cooperation in treating a disease than that of a policeman apprehending a culprit").

29. VOGEL, supra note 6, at 226, 241.

30. Id. at 241.

31. See Steven Kelman, Enforcement of Occupational Safety and Health Regulations: A Comparison of Swedish and American Practices, in ENFORCING REGULATION 111-16 (K. Hawkins & J. Thomas eds., 1984); HAWKINS, supra note 21, at 663, 670-71; VOGEL, supra note 6, at 241-50.

32. HAWKINS, supra note 21, at 671. See also CHARLES HAMPDEN-TURNER & FONS TROMPENAARS, THE SEVEN CULTURES OF CAPITALISM, VALUE SYSTEMS FOR CREATING WEALTH IN THE UNITED STATES, BRITAIN, JAPAN, GERMANY, FRANCE, SWEDEN, AND THE NETHERLANDS 302-07 (1993).

33. VOGEL, supra note 6, at 243.

34. Id. at 248; see also HAMPDEN-TURNER & TROMPENAARS, supra note 32, at 307:

To be a gentleman required grace, style, self-possession and an intuitive sense of what constituted "good form." Gentlemen had more to lose than money and because of this, they could be trusted to act honorably. Thus, in regulation, as well as in other areas of legal life, what evolved were notions of trust and the belief that people comply with the law as a matter of principle.

35. VOGEL, supra note 6, at 244; see also GEOFFREY GORER, EXPLORING ENGLISH CHARACTER (Cresset Press 1955).

36. VOGEL, supra note 6, at 248.

37. HAWKINS, supra note 21, at 670.

38. VOGEL, supra note 6, at 249; HAWKINS, supra note 21, at 674.

39. VOGEL, supra note 6, at 250.

40. HAWKINS, supra note 21, at 675.

41. Id. at 672.

42. VOGEL, supra note 6, at 242.

43. HAWKINS, supra note 21, at 670.

44. Robert Kagan, What Makes Uncle Sammy Sue?, 21 LAW & SOC'Y REV. 717, 728-32 (1988).

45. JOSEPH J. ELLIS, FOUNDING BROTHERS: THE REVOLUTIONARY GENERATION 7 (Knopf Press 2000).

46. HAMPDEN-TURNER & TROMPENAARS, supra note 32, at 53. According to these authors, "it is certainly the most influential book on economics ever written."

47. ADAM SMITH, AN INQUIRY INTO THE WEALTH OF NATIONS 423 (Modern Library 1937).

48. HAMPDEN-TURNER & TROMPENAARS, supra note 32, at 53.

49. The idea that individuals who act only in their own interest are locked into a system of fouling the public nest was first presented, at least in modern America, by Garret Hardin. See Garret Hardin, The Tragedy of the Commons, 162 SCI. 1243-48 (1968).

50. VOGEL, supra note 6, at 250-51.

51. The birth of the environmental movement in the United States is often dated to 1962, the year that Rachel Carson published her book, Silent Spring, on the dangers of dichlorodiphenyltrichloroethane (DDT) and other pesticides.

52. VOGEL, supra note 6, at 21-22.

53. Steinzor, Reinventing Environmental Regulation, supra note 2, at 107-08.

54. For an incisive discussion of corporate culture and motivation of corporate managers, see id. at 158-62 (discussing ROBERT JACKALL, MORAL MAZES: THE WORLD OF CORPORATE MANAGERS (1988)).

55. Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1193-94.

56. Even during the Prime Minister Margaret Thatcher years, no such revolt occurred. See VOGEL, supra note 6, at 22; HAWKINS, supra note 21, at 670.

57. VOGEL, supra note 6, at 245.

58. Id. at 245; HAWKINS, supra note 21, at 669-70.

59. VOGEL, supra note 6, at 257.

60. BELL & McGILLIVRAY, supra note 20, at 190.

61. HAWKINS, supra note 21, at 669.

62. Id.

63. BELL & McGILLIVRAY, supra note 20, at 192.

64. Id. at 190-94.

65. ENVIRONMENTAL VISION, supra note 25.

66. In scores of interviews, David Vogel found that British managers could not cite a single occasion when his firm had been required to do anything it regarded as unreasonable. VOGEL, supra note 6, at 21-22.

67. Id. at 258.

68. Kelman, supra note 31, at 112.

69. ENVIRONMENTAL VISION, supra note 25, at 42, 43.

70. Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1193.

71. Id.

72. Id. at 1194.

73. See Raymond J. Burby & Robert G. Paterson, Improving Compliance With State Environmental Regulations, 12 J. POL'Y ANALYSIS & MGMT. 753, 757 (1993).

74. United States v. Smithfield Foods, Inc., 191 F.3d 516, 520, 30 ELR 20076 (4th Cir. 1999), cert. denied, 121 S. Ct. 46 (2000).

75. Id.

76. In response to elevated levels of nitrogen and phosphorus in the Chesapeake Bay, the commonwealth of Virginia promulgated regulations that required national pollutant discharge elimination system (NPDES) permits for facilities discharging into nutrient-rich waters like the Pagan River be modified to include a monthly phosphorus effluent limitation. In 1988, Smithfield filed suit challenging Virginia's new phosphorus limitation. Id.

77. See Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1227 & n.191.

78. Smithfield, 191 F.3d at 520-21, 30 ELR at 20076.

79. Id. at 522, 30 ELR at 20077.

80. Id. at 523, 30 ELR at 20077.

81. John H. Cushman Jr., Virginia Seen as Undercutting U.S. Environmental Rules, N.Y. TIMES, Jan. 19, 1997, at A22 [hereinafter Cushman, Virginia Seen].

82. Id.

83. Smithfield, 191 F.3d at 523, 30 ELR at 20077.

84. United States v. Smithfield Foods, Inc., 982 F. Supp. 373, 28 ELR 20445 (E.D. Va. 1997), aff'd in part, rev'd in part, 191 F.3d 516, 30 ELR 20076 (4th Cir. 1999), cert. denied, 121 S. Ct. 46 (2000). Smithfield was ultimately found to have committed 5,919 violations of its effluent limitations, including 5,112 for phosphorus, 459 for ammonia, 200 for nitrogen, 72 for fecal coliform, 63 for total suspended solids, 4 for hydrogen power (ph), 4 for cyanide, 4 for chlorine, and 1 for oil and grease.

85. Smithfield, 191 F.3d at 523, 531, 30 ELR at 20077, 20081.

86. Cited in Cushman, Virginia Seen, supra note 81, at A22.

87. Id.

88. Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1228 & n. 192.

89. See prepared statement of Becky Norton Dunlop, Secretary of Natural Resources, Commonwealth of Virginia, in The Relationship Between Federal and State Governments in the Enforcement of Environmental Laws: Hearings Before the Senate Comm. on Env't and Pub. Works, 105th Cong. 190 (1997).

90. Cushman, Virginia Seen, supra note 81, at A22.

91. Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1205 (despite the widespread calls for moving away from deterrence-based enforcement, there is relatively little data to support the argument that cooperation works better to achieve compliance in environmental law); Jon D. Silberman, Does Environmental Deterrence Work? Evidence and Experience Say Yes, But We Need to Understand How and Why, 30 ELR 10523, 10524 (July 2000); Mark A. Cohen, Empirical Research on the Deterrent Effect of Environmental Monitoring and Enforcement, 30 ELR 10245 (Apr. 2000); Rechtschaffen, Competing Visions, supra note 2; Peter K. Krahn, Enforcement Versus Voluntary Compliance: An Examination of the Strategic Enforcement Initiatives Implemented by the Pacific and Yukon Regional Office of Environment Canada: 1983 to 1998 (1999) (unpublished manuscript, available at http://pyr.ec.gc.ca/ep/enforcement/envsvo98.htm); Harrison, supra note 27, at 222 (a case study in the paper mill industry comparing the cooperative-based approach used in Canada with the U.S. regulatory style, which showed cooperative enforcement to be less effective than the more prosecution-oriented approach); Burby & Paterson, supra note 73, at 765-67.

92. Rechtschaffen, Competing Visions, supra note 2, at 10803.

93. In re Tennessee Valley Auth., CAA Docket No. 00-6 (U.S. EPA EAB Sept. 15, 2000), available at http://www.epa.gov./eab/disk11/tva.pdf, ELR ADMIN. MAT. Digest at 41232.

94. 42 U.S.C. § 7411(e), ELR STAT. CAA § 111(e).

95. Id. § 7411(a)(4), ELR STAT. CAA § 111(a)(4).

96. 40 C.F.R. §§ 52.21(b)(2)(iii), 51.165(a)(1)(v)(C), 51.166(b)(2)(iii), & 60.14(e).

97. At coal-fired plants operated by the TVA, these "routine" replacements of major components occurred only once during the life of the individual plant, cost from $ 2.5 million to $ 57 million, and took from several months to more than a year to complete while the plant was shut down. In re Tennessee Valley Auth., CAA Docket No. 00-6, ELR ADMIN. MAT. Digest at 41232.

98. U.S. EPA, ANNUAL REPORT ON ENFORCEMENT AND COMPLIANCE ASSURANCE ACCOMPLISHMENTS IN 1999, available at http://es.epa.gov/oeca/fy99accomp.html (last modified Sept. 27, 2000) [hereinafter U.S. EPA, ANNUAL REPORT].

99. Id. Work to achieve the reductions will take place over a 12-year compliance schedule.

100. In re Tennessee Valley Auth., CAA Docket No. 00-6, ELR ADMIN. MAT. Digest at 41232. The TVA has appealed the decision to the Eleventh Circuit Court of Appeals.

101. Richard Perez-Pena, Power Plants to Cut Emissions Faulted in Northeast Smog, N.Y. TIMES, Nov. 16, 2000, at A8.

102. Id.

103. In re Tennessee Valley Auth., CAA Docket No. 00-6, ELR ADMIN. MAT. Digest at 41232.

104. Id.

105. See HOWARD, supra note 28, at 43-44.

106. U.S. EPA, ANNUAL REPORT, supra note 98.

107. Id.

108. Id.

109. Press Release, U.S. EPA, EPA Releases FY 2000 Enforcement and Compliance Assurance Data (Jan. 19, 2001), available at http://es.epa.gov/oeca/r-20.pdf.

110. See Rechtschaffen, Competing Visions, supra note 2, at 10810-13; Steinzor, Reinventing Environmental Regulation, supra note 2, at 104-38; Silberman, supra note 91.

111. Id. For a history of EPA's "reinvention" initiatives and efforts to incorporate cooperative approaches in its compliance program, see Steinzor, Reinventing Environmental Regulation, supra note 2.

112. Christopher H. Schroeder, Third Way Environmentalism, 48 U. KAN. L. REV. 801, 827 (May 2000).

113. MAARTEN A. HAJER, THE POLITICS OF ENVIRONMENTAL DISCOURSE (Oxford Univ. Press 1995).

114. BELL & McGILLIVRAY, supra note 20, at 39.

115. Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 3, art. 2.

116. Id. art. 6.

117. COM (2001) 31, available at http://europa.eu.int/comm/environment/newprg/index.htm.

118. Id.

119. U.K. DEP'T OF THE ENV'T, TRANSPORT, AND THE REGIONS (DETR), A BETTER QUALITY OF LIFE: A STRATEGY FOR SUSTAINABLE DEVELOPMENT FOR THE U.K. cmt. 4345 (1999).

120. Local Government Act 2000, c. 22, pt. I, § 4.

121. DETR, GREENING GOVERNMENT—UK, THE WORK OF GREEN MINISTERS (2000), available at http://www.environment.detr.gov.uk/greening/minister/i0645b/02.htm.

122. Sustainable Dev. Comm'n (2000), at http://www.sd-commission.gov.uk/commission/02.htm.

123. See DETR website discussion, available at http://www.doingyourbit.org.uk/index.html.

124. Personal Interview with Joe Hefford, Team Leader, Sustainable Development Awareness Team, Bedford, England (Nov. 28, 2000).

125. See ANTHONY GIDDENS, THE THIRD WAY: THE RENEWAL OF SOCIAL DEMOCRACY (Polity Press 1998); see also Schroeder, supra note 112, at 807.

126. 306 ENDS REP. 6 (July 2000).

127. 307 ENDS REP. 13 (Aug. 2000).

128. BELL & MCGILLIVRAY, supra note 20, at 245.

129. All environmental cases in Great Britain are handled by the criminal courts.

130. SAP, ENVIRONMENTAL OFFENSES: THE PANEL'S ADVICE TO THE COURT OF APPEALS (Mar. 1, 2000), available at http://www.sentencing-advisory-panel.gov.uk/advenv.htm; Neil Parpworth, Environmental Offenses: Views From the Sentencing Advisory Panel for England and Wales, 3 ENV'T LIABILITY 91 (2000).

131. 306 ENDS REP. 4 (July 2000).

132. ENVIRONMENT AGENCY, SPOTLIGHT ON BUSINESS ENVIRONMENTAL PERFORMANC, REPORT 1999, available at http://www.environment-agency.gov.uk//envinfo/spotlight/index.htm.

133. Paula de Prez, Excuses, Excuses: The Ritual Trivialisation of Environmental Prosecutions, 12 J. ENVTL. L. 65, 66 (2000).

134. 306 ENDS REP. 4 (July 2000).

135. BELL & McGILLIVRAY, supra note 20, at 250.

136. Id. at 251.

137. ALBERT WEALE ET AL., ENVIRONMENTAL GOVERNANCE IN EUROPE 1-11 (Oxford Univ. Press 2000). According to these authors, more than 300 EU environmental policy measures are currently operative.

138. Under Article 226 of the EC Treaty, if the EC finds that a member state has failed to fulfill an obligation under a directive, the EC may bring the matter before the European Court of Justice.

139. HAWKINS, supra note 21, at 10-13.

140. Id. at 10-13, 203.

141. Gallup Poll, Mar. 2001, available at http://www.pollingreport.com/enviro.htm.

142. Id. The Gallup Poll has surveyed Americans on whether the environment or the economy should be given priority nine times since 1984. In each poll, a majority answered that the environment should be given priority. Even with the economic downturn in 2001, 57% of Americans surveyed in March 2001 favored protecting the environment over economic growth. See also Rena I. Steinzor, Unfunded Environmental Mandates and the "New Federalism": Devolution, Revolution, or Reform?, 81 MINN. L. REV. 97, 146 & n. 169 (1996).

143. RONALD INGLEHART, THE SILENT REVOLUTION: CHANGING VALUES AND POLITICAL STYLES AMONG WESTERN PUBLICS (Princeton Univ. Press 1977); RONALD INGLEHART, CULTURAL SHIFTS IN ADVANCED DEMOCRACIES (Princeton Univ. Press 1990).

144. WILLET KEMPTON ET AL., ENVIRONMENTAL VALUES IN AMERICAN CULTURE 4 (MIT Press 1995).

145. See Rechtschaffen, Deterrence Versus Cooperation, supra note 2, at 1217.

146. BELL & McGILLIVRAY, supra note 20, at 250.

147. Press Release, Gallup Poll, 2001 Earth Day poll, available at http://www.gallup.com/poll/releases/pr01416.as.

148. Id. Gallup Polls conducted in 1990, 1991, and 1999 also found that 85%, 83%, and 74% of those surveyed believed that American business and industry was not worried enough about the environment. See http://www.gallup.com/poll/indicators/indenvironment.as.

31 ELR 10906 | Environmental Law Reporter | copyright © 2001 | All rights reserved