Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

If environmental lawyers have been wondering when they’re going to get their share of economic stimulus, it’s time to stop wondering. Last week, Cynthia Giles, EPA’s Assistant Administrator for Enforcement and Compliance Assurance, announced that her office would be focusing on higher impact cases.  Giles also noted that, by the end of this month, EPA would have more than 200 criminal investigators.

If it weren’t for one statement by Giles, I don’t think that this would be news. Enforcement numbers always fluctuate. Environmental and watchdog groups always criticize EPA and state agencies when the numbers go down, and EPA and state agencies always respond to that criticism.

What caught my eye, however, was this. According to the Daily Environment Report, Giles said that the best measure of the effectiveness of EPA’s enforcement efforts is

how many people are charged and how many people are convicted, and on those scores I think we're doing pretty well.

Sorry. I don’t buy it. If everyone’s complying, then no one gets charged and no one gets convicted. I’m not naïve. Not everyone does comply and vigorous enforcement is necessary to ensure that compliance does happen. In fact, most of my clients are large corporations who comply with environmental laws and they often appreciate vigorous enforcement, because it helps ensure a level playing field. 

At the same time, however, it’s important to recognize that enforcement numbers don’t particularly correlate with the level of compliance. Nor are they a good measure of whether environmental agencies are doing their job well. Instead, enforcement numbers are mostly just red meat to advocacy groups who either want scalps, want to pressure agencies to do more, or both.

Giles’s remarks may be good news for environmental lawyers, but that doesn’t mean that more enforcement is the best use of government resources to increase environmental protection.

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In a story from today’s Daily Environment Report, Cynthia Giles, the new Assistant Administrator for Enforcement at EPA, stated that she was looking increase the number of criminal investigators at EPA, noting that

Criminal enforcement is a very important part of our arsenal in achieving compliance and has a powerful deterrent effect. It's important to us that we're out there and that we pursue the criminal cases.

There’s no doubt that, in a simplistic way, she is correct. Generally speaking, as the plausible threat of enforcement increases, the amount of noncompliance will be expected to decrease. However, for criminal enforcement to be a truly useful enforcement tool, EPA has to communicate clearly and unambiguously what conduct constitutes a criminal violation of environmental laws and what does not. Where language is ambiguous and interpretations shift, criminal enforcement only works as the roughest kind of hammer. It may decrease noncompliance, but it will also decrease productive, compliant, economic activity, because the risk posed by uncertainty will not be worth the reward.

Anecdotal evidence is always dangerous, but from where I sit, the risk that EPA will fail to wield its bludgeon with due care is substantial.

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