Just about a month ago, the New York Times published a story in which it documented an alarming failure on the part of federal and state officials to enforce the principal federal law designed to protect the quality of the nation’s surface waters, including rivers, lakes, and streams. According to that story, fewer than three percent of identified violations of the Clean Water Act result in fines or other significant punishments by state officials. These violations have the potential to threaten the health of people who use the affected waters drinking, swimming, fishing, and other purposes. Yet, the federal Environmental Protection Agency (EPA) has rarely stepped in to reclaim authority to administer the Act from states failing to fulfill their responsibilities to protect water quality through vigorous enforcement efforts.
EPA officials were well aware of these problems. This summer, less than six months after becoming President Obama’s EPA Administrator, Lisa Jackson ordered EPA’s Office of Enforcement and Compliance Assurance (OECA) to investigate federal and state enforcement programs under the Clean Water Act and take steps to strengthen the statute’s capacity for protecting water quality and the health of those who use the water. Today, OECA responded to that charge by releasing its Clean Water Enforcement Action Plan. The Plan forthrightly recognizes the appalling plethora of significant water quality problems that face too many of America’s communities and traces those problems, in significant part, to ineffective implementation and inadequate enforcement of the Clean Water Act by both federal and state authorities.
The Plan commits EPA to taking important steps that will enable the Clean Water Act to fulfill its potential for protecting the integrity of the nation’s waters. The Plan is designed to address concerns about high noncompliance and low enforcement rates, and troubling gaps in the information needed to identify the sources of significant water quality problems and effectively address those problems. These steps include identifying the sources responsible for the worst water quality problems and working with state environmental officials to initiate appropriate enforcement actions against those violating permit or other regulatory responsibilities. The Plan also promises that when EPA determines that a state is not taking sufficiently protective actions in issuing and enforcing permits, it will either divest the state of its authority to administer the Clean Water Act, force the state to regulate more effectively, or supplement state enforcement efforts. In addition, the Plan endorses the development by EPA of “performance metrics” for permitting and enforcement, which will enable the public to hold both EPA and the states accountable if they do not do their jobs in protecting water quality. CPR member scholars have long advocated exactly these kinds of accountability mechanisms. Finally, the Plan commits EPA to issuing regulations to require more comprehensive and effective reporting by regulated sources through a new electronic reporting tool called NetDMR. The use of electronic reporting will facilitate both coordination of state and federal enforcement strategies and public access to the latest information about water quality problems and agency enforcement activities.
Full textCenter for Progressive Reform Member Scholar Robert L. Glicksman replies to Member Scholar William Buzbee's post on the Summers vs. Earth Island Institute decision: The decision in Summers represents the latest salvo in a continuing battle between those Supreme Court Justices who view the function of standing doctrine as ensuring that litigation before the federal courts is capable of being presented in an adversary context suitable for judicial resolution, and those who regard it as a fundamental bulwark against intrusion by the judicial branch on the prerogatives of the legislative and executive branches. As late as 1968, the Court remarked in a case called Flast v. Cohen that standing law does not by its own force raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government. Justice Scalia, who wrote the majority opinion in Summers as well as in the Lujan case referred to in Bills post, has insisted... (To read the entire post, click on the headline above.) Full text
Center for Progressive Reform Member Scholar Robert Glicksman blogs on an Executive Order proposed for President Obama in CPR's "Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days." Full text
Guest Blogger: Liz Borkowski