Academic journal article The Journal of Law in Society

Effectiveness of the Clean Air Act in Light of the Shortcomings of the Epa's Stationary Source Civil Penalty Policy: A Call for Binding Rules with an Increased Deterrent Effect on Industry

Academic journal article The Journal of Law in Society

Effectiveness of the Clean Air Act in Light of the Shortcomings of the Epa's Stationary Source Civil Penalty Policy: A Call for Binding Rules with an Increased Deterrent Effect on Industry

Article excerpt

I. Introduction

Proper penalty assessments for the violation of environmental laws are the only protection American citizens have against billion dollar corporate polluters. For example, Detroit Michigan's 48127 zip code is home to some of the state's largest industrial plants, and, not surprisingly, the most toxic concentrations of air pollution. The majority of residents are low-income minorities struggling to make ends meet, and they share their neighborhood with an oil refinery and steel plant owned by billion dollar corporations. Environmental violations by industrial sources in areas such as these degrade the quality of life for families in this area, and a failure to impose strict enough penalties sends a message to these people that somehow their lives matter less than Marathon Oil and U.S. Steel's bottom-line. It is the responsibility of the EPA to ensure that all Americans have healthy clean air to breathe, not just those that live far enough from heavy polluters who disregard the health of their neighbors and the environment by violating the requirements of their permits designed to prevent such harm. The protection of the environment and public health through federal environmental regulation is unachievable without strong, fair and effective civil penalty policies.

In order to ensure penalty assessments induce the desired behavior on the part of the regulated community, compliance with environmental laws, penalties must be large enough to force agencies to internalize the cost of their pollution and make "paying to pollute" an economically unfavorable option for any source, even those owned by billion dollar corporations. The EPA was given an immense amount of power to prevent degradation of the environment. The Agency is permitted to develop rules, adjudicate the meaning of those rules, and penalize those who violate them. (1) The powers held by the EPA are a blend of all three branches of government, and as such the Agency has a duty to the nation to ensure all rules, policies and procedures developed and utilized by the EPA are designed to protect the environment and ultimately benefit society as a whole. (2) When a regulated entity violates an environmental statute, provisions within those statutes provide the U.S. Environmental Protection Agency (EPA) the authority to commence a civil action against the violator to recover penalties. (3) Both rulemaking and adjudication are extremely vital aspects of effective environmental regulation, however, compliance with environmental rules and agency decisions by regulated entities is only induced through the use of penalties.

The EPA's Deputy Assistant Administrator of the Office of Enforcement and Compliance Assurance (OECA) in 1995, Michael M. Stahl, described the importance of the Agency's effective use of its enforcement authority to the productive functioning of the federal environmental regulatory system as "one of the most important aspects of the current national dialogue about the scope of government regulation and the future of ecological protection." (4) Since 1995, the importance of effective compliance efforts by the EPA in order to achieve the overall mission of all environmental laws - the protection of the environment--has not lessened. The effectiveness of environmental regulation hinges almost entirely on the adequacy of the penalties imposed for violations of those rules. If there is no consequence for breaking the law, then the law itself is meaningless and may be disregarded entirely. Therefore, when sources violate laws created to protect societal welfare, such as environmental regulations and those violations are inadequately penalized, motivation to comply with those rules is completely undermined and society must pay for the Agency's failure to effectively enforce.

When a regulated entity violates an environmental statute, provisions within those statutes provide the U.S. Environmental Protection Agency (EPA) the authority to commence a civil action against the violator to recover penalties. …

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