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Citation:
James Salzman; J.B. Ruhl; Johnathan Remy Nash,
Environmental Law in Austerity, 32 Pace Envtl. L. Rev.
481 (2015)
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ARTICLE
Environmental Law in Austerity
JAMES SALZMAN,*
J.B. RUHL,** AND JONATHAN REMY NASH***
The EPA has always had enemies. Vigorously denouncing
EPA's activities as "overzealous," "job killing," or a "regulatory
train wreck" has become commonplace on the campaign trail and
from special interest groups covered by the agency's reach.1
Perhaps this is to be expected, since EPA's regulations influence a
remarkably wide range of activities throughout the country. The
agency, though, has been subject to far more than just harsh
rhetoric.
Over the past three decades, there have been concerted
efforts in Congress to restrain the EPA both by legislation and,
less directly, by reducing its resources. Crippling amendments
have largely failed but efforts to restrict budgets and personnel
have been far more successful. Consider, for example, a
description of Congress' most recent EPA budget by the Center
for Effective Government:
* Samuel Fox Mordecai Professor of Law, Nicholas Institute Professor of
Environmental Policy, Duke University. We are grateful for the research
assistance of Daniel Stockton and the comments of Joel Mintz.
David Daniels Allen Distinguished Chair of Law, Vanderbilt Law School.
Professor of Law and David J. Bederman Research Professor (2014-15),
Emory University School of Law.
1. Ruth Marcus, Bad Science Around "Job-Killing Regulations," WASH.
POST, Apr. 24, 2012, http://www.washingtonpost.com/opinions/bad-sciencearound-job-killing-regulations/2012/04/24/gIQARQQTfT-story.html, archived at
http://perma.cc/SR8Z-ECKR; Press Release, America's Power, Exposing the
Truth
Behind
EPA
Regulations
(Nov.
17,
2014),
available at
http://www. americaspower.org/exposing-truth-behind-epa-regulations, archived
at http://perma.cc/W3YS-UVB8; EPA's Regulatory Train Wreck, AM. LEGIS.
EXCH.
COUNCIL,
http://www.alec.org/initiatives/epas-regulatory-train-wreck/
(last visited Apr. 20, 2015), archived at http://perma.cc/6PCT-UVSP.
481
482
PACE ENVIRONMENTAL LAW REVIEW
[Vol. 32
In a continuing effort to dismantle the ability of the [EPA] to
protect public health and the environment, Congress is poised to
adopt afiscal year 2015 budgetthat wouldreduce the agency's
funding for the fifth year in a row. The$60 million cutin EPA's
budget, which builds on previous reductions, will bring the
agency's staffing to its lowest level since 1989. These funding
cuts are not surprising, given that anti-regulatory forces in
Congress havemade clear their intentto use the budget process to
block EPA's work.2
NRDC similarly decried the budget reductions in 2011 as "a
contract on America masquerading as a spending bill. It's nothing
short of a declaration of war on our most basic health protections.
It would do away with fundamental safeguards that keep our air,
water and lands clean."3 Nor has the pressure to limit EPA's
resources
only
come
from
Capital
Hill.
The
Obama
administration acquiesced to significant personnel cuts in 2013
and 2014.4
Chart 1 on the next page, which is drawn from EPA data,
presents how the EPA's budget (left axis, expressed in billions of
dollars) and the EPA's workforce (right axis) have varied over
time.5 Looking at the numbers since 1990, the last time a major
environmental law was enacted, tells an interesting story. With
the exception of the last two years when there were significant
reductions, the workforce has remained roughly flat. Overall,
2. Ronald White, Congress Slashes EPA Budget Again Despite Strong Public
Support for Strengthening Health Protections, CTR. FOR EFFECTIVE GOV'T (Dec.
12,
2014),
http://www.foreffectivegov.org/blog/congress-slashes-epa-budget-
again-despite-strong-public-support-strengthening-health-protection,
archived
at http://perma.cc/3WAM-65WK.
3. Press Release, Natural Resources Defense Council, House Panel's
Spending Bill Threatens Public Health Protections (July 6, 2011), available at
http://www.nrdc.org/media/2011/110706. asp, archived at http://perma.cc/D7W8UDKQ.
4. See Andy Amici, Government Cuts 84,500 Federal Employees in Three
Years, FEDERAL TIMES (Jan. 20, 2015, 2:44 PM), http://www.federaltimes.
com/story/government/management/agency/2015/01/20/agencies -cut-feds/
22012321/, archived at http://perma.cc/M49B-NKC7.
5. See Planning, Budget, and Results, EPA, http://www.epa.gov
/planandbudget/budget
(last updated
Feb.
2,
2015),
archived at
http://perma.cc/3WAL-W2BC (last visited Mar. 11, 2015); U.S. INFLATION
CALCULATOR, http://www.usinflationcalculator.com/ (last visited Mar. 11, 2015),
archived at http://perma.cc/YQV6-YAZP.
ENVIRONMENTAL LAW IN A USTERITY
2015]
483
EPA has faced a static or slightly declining level of total
resources .6
$12
19,000
18,800
$11
18,600
18,400
$10
18,200
18,000
17,800
17,600
17,400
17,200
17,000
16,800
$9
$8
/
.. tx
$7
$6
$7
.%,%.s s
t
I
$6
I
16,600
16,400
t
$5
k
$4
$2
Inflation Adjusted EPA
Budget Authority'EPA Employeesl
$1
$0
16,200
16,000
15,800
15,600
15,400
15,200
15,000
14,800
14,600
14,400
14,200
14,000
Chart 1 - EPA Workforee and Budget
In real terms, however, this represents a reduction. In
addition to the increased cost of employees, the scope of EPA's
responsibilities has significantly increased. Over the years, the
EPA has regulated an ever larger number of sources in a much
larger economy, dealt with new issues such as greenhouse gases
and endocrine disruptors, as well managed its longstanding
obligations to protect the environment and public health in an era
of increasing complexity and procedural requirements for
rulemaking.
Given the political dynamic in play at the national level, with
the country evenly split between Republicans and Democrats, and
incumbent Tea Party and other politicians highly critical of the
6. Mason Inman, Removing the Baseline, 1 NATURE CLIMATE CHANGE 430
(2011).
484
PACE ENVIRONMENTAL LAW REVIEW
[Vol. 32
EPA, there is no reason to think this trend in decreasing
environmental budgets will change any time soon. In some states
the trend is even more pronounced.7
Fiscal austerity has become the new norm. The interesting
questions are whether this matters for environmental law, how it
matters, and what it means going forward.
One possible scenario seems obvious. Reduced resources for
EPA means reduced environmental protection and reduced
environmental quality. The connections are easy to draw - fewer
personnel and inspections mean reduced compliance monitoring,
fewer enforcement actions with less deterrent effect, and more
violations that harm the environment. It means fewer resources
for permitting, drafting new regulations, and revising existing
regulations. In all, not a pretty picture. One can well understand
the concerns expressed by NRDC and the Center for Effective
Government. One might call this future one of "Doing less with
less."
There is, of course, another perspective. Those defending
sequestration and budget cuts defend their actions as trimming
fat from the bureaucracy, forcing agencies to do "more with less."
This was one of the central themes behind the butcher's cleaver
strategy of sequestration-cutting equal amounts from all
agencies. Terry Anderson, for example, has argued that
"increasing the EPA's budget, as the Obama administration has
proposed, will only increase bureaucracy, not air quality."8 As
demonstrated in Chart 2 on the next page, Anderson contrasts
Chart 1 of EPA's inflation-adjusted budget with measures of air
quality. The budget line looks similar to the previous chart. But
the overall picture shows declining pollution, not what one might
expect from the "Doing less with less" dystopia. Indeed, this
seems strong evidence for a "Doing more with less" scenario.
7. STEVEN BROWN, STATUS OF STATE ENVIRONMENTAL AGENCY BUDGETS 3
(2012), available at https://dl.dropboxusercontent.com/u/41680992/September
%202 0 12%2OGreen%2OReport.pdf, archived at http://perma.cc/SB6G-792E.
8. Terry Anderson, EPA Budget Cuts: Reducing Bureaucracy, Not
Environmental Quality, THE PERC BLOG, http://perc.org/blog/epa-budget-cutsreducing-bureaucracy-not-environmental-quality#sthash.vT4i3Ayx.dpuf
(last
visited Mar. 11, 2015), archived at http://perma.cc/8SWW-L4ZQ.
ENVIRONMENTAL LAW IN A USTERITY
2015]
485
Air Quality and the EPA Budget Since 1980
14
120
C12>
100 0
EPA Budget
SS
20
'
22
-93%
Source: EPA
0
1980
1985
0
1990
1995
2000
2005
2010
Chart 1 - Air Quality and EPA Budget9
In fact, the interrelationships between EPA resources,
environmental protection activities, and environmental quality
are far from straightforward. In the extreme, of course, dramatic
cuts in funding will likely harm the environment, but what about
marginal reductions over time? Do greater EPA resources
actually lead to greater environmental protection efforts? And to
what extend do these efforts lead to improved environmental
quality in the field? Is the converse true, with reduced resources
causing poorer environmental quality? These are empirical
questions that belie easy answers. It is possible, after all, that the
improvements in air quality shown above may be attributed as
much to path dependency as to dedicated EPA resources. And
what about the role played by non-state actors in the role of
citizen suits or industry codes of conduct?
The three of us are engaged in a larger research project
trying to gain insights into these interrelationships as well as
their implications for environmental law. In the next few pages,
we work off the assumption that EPA's fiscal austerity will
9. Id.
PACE ENVIRONMENTAL LAW REVIEW
486
[Vol. 32
continue or grow even more extreme, suggesting how this might
lead to specific changes in the fields of enforcement, compliance
monitoring, permitting, and regulation. We explore the different
ways fiscal austerity has influenced EPA and how this might
continue to shape what environmental law and protection look
like in the decades to come.
Will this result in a future of EPA Doing more with less,
Doing less with less, or perhaps Doing different with less?
I.
ENFORCEMENT
Joel Mintz and others have written persuasively on the
dangers posed by reducing enforcement budgets. As he has
concluded, "any form of budget cutting in EPA's severely
understaffed enforcement program is likely to have an adverse
effect on the robustness and effectiveness of the Agency's critical
enforcement work."o Nor is the impact felt only in staffing.
Reduced budgets also affect data management capacity.
According to the Center for Effective Government, the EPA's
strategic plan calls for a 40-50% reduction in inspection and
enforcement cases.11 How might we expect environmental law in
practice to adapt?
An obvious approach involves greater reliance on others who
can contribute their resources. The EPA, for example, may cede
or encourage a greater role to states. State environmental
agencies, though, are equally under budget pressure. A more
likely route would involve non-state actors. EPA could encourage
greater use of citizen suits (though, of course, brought against
polluters rather than against the agency). The Endangered
Species Act and Act to Prevent Pollution from Ships currently
10. Joel Mintz, Cutting EPA's Enforcement Budget: What It Might Mean,
FOR
PROGRESSIVE
REFORM
BLOG
(Apr.
12,
2012),
http://www.progressivereform.org/CPRBlog.cfm?idBlog=A6A2E941-98B3-80079CEEB42458BED78E, archived at http://perma.cc/6DSX-6T98.
11. Ronald White, Congress Slashes EPA Budget Again Despite Strong Public
CENTER
Support for Strengthening Health Protections, CENTER
FOR EFFECTIVE GOV'T
(Dec. 12, 2014), http://www.foreffectivegov.org/blog/congress-slashes-epa-budgetagain-despite-strong-public-support-strengthening-health-protection,
archived
at http://perma.cc/EF99-BRNJ.
ENVIRONMENTAL LAW IN A USTERITY
2015]
offer bounty provisions for successful actions in court.12 This
could be extended to other statutes, as well.
More strategically, EPA could shift its enforcement emphasis
from specific deterrence (changing the behavior of the individual
charged) to general deterrence (influencing the regulated
community). To some extent, EPA already does this through highprofile litigation. As a general practice, however, EPA has not
publicized most of its non-trivial enforcement actions.13 In the
future, one might envision fewer enforcement cases but brought
against larger and more visible targets for more egregious
violations. While this might, as some fear, lead to greater
noncompliance by small sources, it is an empirical question
whether this would actually lead to significant deterioration of
environmental quality.
II.
COMPLIANCE MONITORING
Dan Esty, Melissa Scanlan, and others have written about
the potential for "smart" technologies to transform how agencies
gather information from the regulated community.14
Fewer
inspectors need not mean less rigorous compliance monitoring.
The advent of low-cost, tamper-proof, real-time monitors that
regularly transmit data to regulators holds great promise, as do
remote sensing technologies.15 One could imagine in the not too
distant future, for example, greater reliance on drones for
collecting air quality data or biomarkers to track effluent
12. Endangered Species Act of 1973, 16 U.S.C. § 1540(g) (2012); see generally
Act to Prevent Pollution from Ships, 33 U.S.C § 1908 (2012).
13. Joel Mintz, Shaping Next Generation Compliance at EPA: Lessons from
the Agency's Past and Some Post-Workshop Thoughts, in NEXT GENERATION
ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT 327, 323-39 (Leroy C. Paddock
& Jessica A. Wentz, eds., 2014).
14. See Daniel C. Esty, Environmental Protectionin the Information Age, 79
N.Y.U. L. REV. 115 (2004); Melissa Scanlan & Stephanie Tai, Marginalized
Monitoring.Adaptively Managing Urban Stormwater, 31 UCLA J. ENVTL. L. &
POL'Y 1 (2013). See also Dave Owen, Mapping, Modeling, and the Fragmentation
of Environmental Law, 2013 UTAH L. REV. 219 (2013) (discussing how major
advances in electronic mapping and spatially explicit, computer-based
simulation modeling are transforming how researchers conceptualize
environmental systems).
15. Esty, supra note 14, at 118, 160.
488
PACE ENVIRONMENTAL LAW REVIEW
[Vol. 32
discharges to specific polluters. There is already a product in
development for fracking that does just this.16
Compliance monitoring and enforcement are, of course,
interconnected.
Better
monitoring of violations
makes
enforcement much easier. As Linda Breggin has described,
developments in big data of compliance also could promote more
effective enforcement activities.17
The problem, of course, is that EPA's fiscal austerity may
well prevent it from investing in either advanced monitoring
technologies or big data computing capacity. Moreover, if there is
little prospect of EPA purchasing such equipment, there is little
incentive for entrepreneurs to develop these technologies.
This leads to the final potential implication of austerity in
compliance monitoring-shifting ever-more costs onto regulated
parties. EPA could, for example, create a significant market
signal by requiring regulated parties to adopt state-of-the-art
monitoring technologies. This would have little impact on the
agency budget while sending market signals that could drive a
new generation of monitoring technology.
III.
PERMITTING
And what of permitting? Reduced EPA resources suggest
that permitting will take longer. One might also expect EPA to
shift more permitting authority and responsibility to states. The
challenge here is the same as with monitoring and enforcementstates operate in a similarly austere fiscal environment.
There are possible structural adaptations that could emerge.
One would involve greater reliance on the use of general permits.
As Eric Biber and J.B. Ruhl have explained, expanded use of
general permits creates opportunities for adaptive management
and can significantly streamline costs.18 A similar strategy might
16. See James Salzman & Martin Doyle, Turning the World Upside Down:
How Frames of Reference Shape Environmental Law, 44 ENVTL. L. 1, 24 (2014)
(discussing Base Trace).
17. LINDA K. BREGGIN & JUDITH AMSALEM, ENVIRONMENTAL LAW INSTITUTE,
BIG DATA AND ENVIRONMENTAL PROTECTION: AN INITIAL SURVEY OF PUBLIC AND
PRIVATE INITIATIVES 3 (2014).
18. See Eric Biber & J.B. Ruhl, The Permit Power Revisited: The Theory and
Practiceof Permittingin the Regulatory State, 64 DUKE L.J. 133, 230 (2014).
2015]
ENVIRONMENTAL LAW IN A USTERITY
489
rely on greater programmatic scale permitting and planning as is
currently seen in NEPA through tiering.
IV.
REGULATIONS
We would expect tight resources to result in fewer
regulations being written, particularly given the added costs
imposed by statute and executive orders for cost benefit analyses,
risk assessments, impacts on small businesses, etc. Interestingly,
measured in terms of the number of rules published in the
Federal Register, this has not been evident. According to the
Americans for Competitive Enterprise, a deregulatory think tank,
apart from the drop in 2012-2013 that the authors attribute to a
decrease in regulatory activity in the run-up to the 2012 election,
EPA regulations have not noticeably been declining, as
demonstrated in Chart 3 below. 19
7'
Chart 2 - EPA Regulations Trends20
19. See generally Clyde Wayne Crews, Red Tapeworm 2014: Environmental
Protection Agency Regulations Declining? Don't Bet on It, AMERICANS FOR
COMPETITIVE ENTERPRISE (Sept. 23, 2014), http://freedomaction.org/2014/09/red-
tapeworm-2014-are-environmental-protection-agency-regulations-declining-dont
-bet-on-it/, archived at http://perma.cc/7LYJ-76X6.
20. Id.
PACE ENVIRONMENTAL LAW REVIEW
490
[Vol. 32
How might we expect to see regulation adapt to an era of
fiscal austerity? The agency necessarily will need to prioritize and
triage, focusing their rulemaking resources on the most
important rules. We may already see aspects of this with the
proposed rules for the definition of Waters of the United States
and the greenhouse gas regulations under the Clean Air Act. A
related strategy might rely more on guidance documents and
nonlegislative rules that avoid the additional analyses and costs
of notice-and-comment rulemaking.
There may also be more incorporation by reference of private
standards, passing the costs of standard-setting to other actors.
Michael Vandenberg has provided many examples of private
certification systems, for example, effectively acting as
regulations through supply chains and enforced by large retailers
such as Walmart and Home Depot.21 The key question, of course,
is to what extent such private standards should complement
rather than replace binding regulatory standards.
In tandem with fewer new rules, we would also expect to see
fewer revisions of current rules reflecting either improvements in
best available technologies or research indicating that current
ambient levels, for example, pose a threat to public health and
need to be lowered.
V.
CONCLUSION
By no means do we think that EPA's continuing fiscal austerity is
necessarily a good thing. Much of the motivation behind these efforts
clearly comes from industries and their allies who simply wish to reduce
their costs of operation and could not care less whether the future is one of
Doing more with less or Doing less with less. That said, the relationship
between agency resources and environmental quality is complicated and has
not been adequately examined in the literature.
In the months ahead, we intend to explore not just whether agency
resources matter-of course they do-but which resources matter and why.
21. Michael P. Vandenberg, David Daniels Allen Distinguished Chair of Law,
Director, Climate Change Research Network, Vanderbilt Law School, Keynote
Address at Pace Environmental Law Review Symposium: Reconceptualizing the
Future of Environmental Law (Mar. 20, 2015) (transcript on file with Pace Law
School), available at http://www.law.pace.edu/symposium-reconceptualizingfuture-environmental-law, archived at http://perma.cc/YG2E-RH7D.
2015]
ENVIRONMENTAL LAW IN AUSTERITY
491
Which aspects of environmental quality are most at risk from reduced EPA
activity and which are less vulnerable to backsliding? How will the likely
adaptations of EPA to fiscal austerity influence environmental quality?
And, what have been the consequences of EPA's adaptations to date? These
are important, unresolved questions. They warrant further study for they
bear directly on the future of our environment in the continuing era of fiscal
austerity.
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