Regulation and the Courts: The Case of the Clean Air Act

By R. Shep Melnick | Go to book overview

CHAPTER SEVEN
Enforcement: The Triumph of Equity

The position of the Government . . . was that, upon the basis of the violation as found by the EPA and the non-compliance by the Town, the Government was ipso facto . . . entitled to an order of enforcement. We think this was too rigid a position and that proof of relevant circumstances was admissible in support of what we consider to be the Court's duty, in the exercise of its equitable powers, to fashion its decree in such a way as to deal fairly with the case.

-- U.S. v. Town of North Hempstead, 1979

CONGRESSMEN and environmentalists who criticized the Environmental Protection Agency's use of administrative orders before 1977 often claimed that the EPA would have been more successful in forcing polluters to comply with emission limitations had the agency filed more enforcement suits under section 113 of the Clean Air Act. Responding to this criticism, Congress added to the 1977 amendments a section requiring the EPA to initiate litigation in federal district court against all sources not in compliance with state implementation plans (SIPs) by 1979.

Yet the EPA originally adopted its administrative order strategy because it considered litigation an extremely risky and burdensome undertaking. Agency lawyers with experience in arguing environmental cases before federal district courts warned that since judges seldom impose credible sanctions on local polluters, the meager benefits of filing suit do not come close to equaling the large administrative costs of the enterprise. The EPA has filed many enforcement suits since 1977, but it has tried hard to settle these cases through consent decrees, even if this has required making concessions to polluters on schedules, extent of control, and civil penalties.

Has court action in enforcement proceedings impeded the EPA's efforts to force polluters to comply with the act, or is this an excuse used by bureaucrats to hide their timidity and ineffectiveness? Studies of other regulatory programs indicate that delay and the "balancing of

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