The U.S. EPA pursues three types of enforcement actions
- Administrative actions are non-judicial enforcement measures taken by a state agency or EPA using its own authority. They do not involve a judicial process. An administrative action may be either: 1) a notice of violation, or 2) an order (either with or without penalties) directing an individual, a business, or other entity to take compliance action.
- Civil actions are formal lawsuits. They are filed in court against people or entities that failed to comply with statutory or regulatory requirements or to comply with administrative orders (issued under Administrative actions, above). Cases are filed by the U.S. Department of Justice on behalf of EPA or by the state’s Attorneys General (typically) when the state has the enforcement authority. They can also be filed by citizens themselves, whether individually or as part of an organization. Civil actions may seek remedies or mitigation of damages that occur as a result of the violation.
- Criminal enforcement of environmental laws, done via court action, is less common and generally limited to intentional violations, fraud, repeated or gross negligence, or when danger to human life and/or severe environmental damage occurs. For more see EPA’s website.
Federal Enforcement Policies
A key EPA bureau with useful information is the Office of Enforcement and Compliance Assurance (OECA). Over the last several decades, OECA has compiled numerous enforcement policies. The general policies can be accessed at the links below; understanding them can be very useful when the agency fails to live up to its own policies. For specialized issues, one should examine the OECA webpage closely; it provides much of the “nuts and bolts” of how EPA enforcement is supposed to happen.
- Clean Water Act (CWA); CWA Policy and Guidance
- Safe Drinking Water Act (SDWA); SDWA Policy and Guidance; Enforcement Response
- Clean Air Act (CAA); Mobile Sources of Air Pollution; Stationary Sources of Air Pollution
- Resource Conservation and Recovery Act (RCRA); Waste Enforcement
- Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
An important enforcement purpose that the agencies often fail to achieve—and which citizens can help push—is fully capturing profits from guilty violators. Effective enforcement needs to go beyond just “fixing the problem.” Otherwise, paying pollution fines can be a routine “cost of business” for unscrupulous violators, which can include public facilities as well as private companies.
Disincentives are needed to prevent repeat violations. Economically, the fair way is to ensure that violators disgorge all the increased revenues or profits they received from their illegal behavior. For a company, an auto maker for example, that could be profits that came as a result of increased market share that the company gained because its cars were cheaper than its competitors due to not complying with pollution prevention regulations under the CAA.
For a public entity, such as a municipal wastewater treatment facility, the plant’s managers may have cut costs by doing less contaminant reduction in violation of the CWA, and those “savings” allowed them to remodel their offices. When they are caught, they should be compelled to pay back at least the full value of their illicit benefits.
EPA has sophisticated Penalty and Financial Models to account for illicit gains under these rubrics: General Civil Enforcement Penalty Policies, Penalty Inflation Rules and Penalty Policy Amendments. See:
- Enforcement Policy, Guidance, and Publications
- Guidance on Evaluating a Violator’s Ability to Pay a Civil Penalty in an Administrative Enforcement Action
- Guide to Calculating Environmental Benefits from EPA Enforcement Cases
The problem is that the enforcers, typically state officials, often are not tough enough to apply the full financial penalties to the letter. Citizen pressure on state and EPA officials can help hold their feet to the fire.