Low compliance rates with rules intended to protect air, water, and public health are both vastly underestimated and unresolvable by stronger government enforcement. Experts maintain that poorly designed regulations are the root of the problem; the structure of these rules dictates rates of compliance.
These findings, drawn from a series of papers published by Harvard Law School’s Environmental and Energy Program (EELP), were the subject of a May 28 online forum hosted by the AU School of Public Affairs’ Center for Environmental Policy (CEP), and co-sponsored by AU Washington College of Law’s Program on Environmental and Energy Law (WCL PEEL) and Harvard’s EELP.
The forum, Next Gen: Environmental Regulation for the Modern Era, convened by SPA Executive in Residence John Reeder, was moderated by former AU President Neil Kerwin and series author Cynthia Giles. Giles, the assistant administrator for the EPA’s Office of Enforcement and Compliance Assurance during the Obama administration, is also a guest fellow at Harvard’s EELP.
“The identification of transparency, of incontestable published metrics––a whole series of principles that Cynthia applies to these programs––are highly attractive and relevant,” said William Reilly, the former EPA administrator who spoke at the event. “We need this kind of research.”
In her remarks, Giles noted that serious violations of environmental regulations are common in all sectors and sizes of business. She contended that limited resources prevent compliance via the standard methods of monitoring and prevention. Instead, policymakers should focus on crafting regulations that spell out expectations and consequences. Rules should be designed to make compliance the default.
“Rule design is the principle determinant of the compliance outcome,” Giles said. “If a rule creates lots of opportunities for companies to evade, obfuscate, or ignore, there will be a lot of violations.”
Acid rain regulations, for example, built in requirements for continuous emission monitoring and data substitutions, resulting in compliance rates of nearly 99% and significant reductions in pollution. In contrast, regulations incentivizing the modernization of pollution controls in coal plants were complicated and vague, and met with serious noncompliance.
Brenda Mallory, director and senior counsel for the Conservation Litigation Project, agreed that well-designed regulations are necessary, but emphasized the need for public support.
“We seem to no longer have a shared notion of the importance of regulations,” Mallory said. “When people talk about getting rid of regs, it’s often simply from the perspective of cost, as if there were not a countervailing environmental benefit that was being lost by the change. We have to focus on getting that shared vision again.”
Panelist Roger Martella, former EPA general counsel and director of global environment, health, and safety at General Electric, said major environmental law has not kept up with the seriousness of the issues, such as climate change.
“These outdated tools need to be updated for modern problems. We should take advantage of technology to address these issues,” said Martella. He noted that while he believes corporations generally want to comply, rules sometimes lack certainty and clarity.
Giles suggested strategies to build compliance into rules, such as leveraging technology and public notifications requirements to motivate companies to adhere to the standards.
“Almost never will enforcement alone be sufficient to fix the serious compliance issues created by bad compliance design,” she said. “We cannot afford to repeat the regulatory mistakes of the past… Time is up. Whatever we do next has to work.”
“Not only was the dialogue around Giles’ enforcement research excellent,” said WCL PEEL Director Bill Snape, “but I was also struck by the bipartisan and across-the-board agreement that thoughtful and lawful agency governance is absolutely crucial in addressing modern challenges such as climate change, toxic pollution, and Covid-19.”