2015 Gilbert and Sarah Kerlin Lecture on Environmental Law “Environmental Enforcement – Giving the Law Teeth”

Post by Scott Wenzel

This year’s Gilbert and Sarah Kerlin Lecture on Environmental Law was given by Senator Richard Blumenthal on Tuesday, October 13, 2015. Senator Blumenthal is currently serving his first term in the United States Senate, which was preceded by four terms (20 years) as Connecticut’s Attorney General, four years as a U.S. Attorney for Connecticut, positions in both the Connecticut House of Representatives and Senate, an aide to Senators Ribicoff and Moynihan, and a clerk to Supreme Court Justice Blackmun. Richard Ottinger, when introducing the Senator, aptly described Senator Blumenthal’s career as, “A splendid life of public service.”

Despite the partisan politics that have stymied Congress, Senator Blumenthal’s message was one of optimism for environmental law. Senator Blumenthal emphasized the role citizen activism can play in environmental enforcement. Quoting Margaret Mead, “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.” Senator Blumenthal urged the audience that there are “profoundly significant opportunities and obligations” to become environmental enforcers – in both the public and private sectors.

Senator Blumenthal conceded that the current quagmire the 114th Congress has found itself in is, “real and frustrating and befuddling.” However, Senator Blumenthal suggested that there are great gains to be made by focusing on enforcing environmental laws already on the books. Senator Blumenthal described the need to enforce current laws as “absolutely critical.” The Senator cautioned that ignoring, not enforcing, or disregarding current environmental laws is not only harmful to the environment, but also undermines the legal system as a whole.

Senator Blumenthal cited the Clean Air Amendments of 1990’s effect on acid rain and air quality as an example of environmental laws that, when enforced, have positive and significant outcomes.  Senator Blumenthal also discussed the often contentious intersection of environmental laws and the economy. The Senator posited that economic and environmental enforcement are not at odds with each other; in fact, they are complimentary. Again, citing the Clean Air Amendments of 1990, Senator Blumenthal discussed how the fuel economy standards that the automobile industry initially resisted, have now become central to automobile marketing and advertising campaigns.

Senator Blumenthal said that the “most lethal” threat to the EPA and environmental enforcement are the consistent annual reductions in the EPA budget. In discussing the yearly reductions, Senator Blumenthal described the process as strangling the agency by slashing its budget and depriving it of the resources that it needs. Although several federal agencies have experienced a similar budget squeeze, Senator Blumenthal described the 21% budget reduction over the past five years as “particularly startling.” These cuts particularly impact the enforcement side of the agency, precipitating a loss of 1,000 inspectors at the EPA. The cuts to the EPA budget also have a “ripple impact” on state budgets that depend on EPA funding. This “ripple” equates to a loss of 2,000 or more state inspectors. The practical effect is that the EPA is hindered in monitoring, let alone enforcing, the Nation’s air, water, and soil quality standards.

Senator Blumenthal said that environmental enforcement diverged from its non-partisan roots under President George W. Bush, largely due to special interest groups. Senator Blumenthal described this period of neglecting environmental enforcement as a time of “malign neglect.” During this time, acting as the Attorney General for Connecticut, Senator Blumenthal successfully sought an injunction against President Bush to enforce the laws that President Bush was ignoring. Senator Blumenthal pointed out that under our system of Federalism, there is an opportunity for states to enforce laws that the federal government fails to enforce. The opportunity to enforce laws that have been abandoned by the federal government allows states to have a national voice on environmental enforcement. Environmental enforcement is not dissimilar from other areas of enforcement (e.g. antitrust and tobacco law) that when the federal government abandons the field, states “can and should be aggressive enforcers.”

Senator Blumenthal’s unique experience as Attorney General for Connecticut gave him first-hand experience of how successful state action can be when it comes to environmental enforcement. A large part of that success, however, Senator Blumenthal attributes to the tremendous support of citizens in those efforts. Senator Blumenthal pressed that citizen and environmental group support will be crucial in passing and enforcing legislation like the Waters of the United States Rule and the Clean Power Plan.

The lesson according to Senator Blumenthal: “There is a need for better enforcement.” However, Senator Blumenthal was quick to note that there is ample room for the law to improve. Discussing Volkswagen’s recent emission cheating scandal, Senator Blumenthal opined that there should be a specific criminal penalty for executives that “deliberately and willfully and purposefully” deceive the federal government when it comes to automobiles. “Holding executives who knew or should have known civilly responsible, and if they meet the test of criminal intent, criminally responsible” is what Senator Blumenthal sees as the “new frontier” of environmental enforcement.

Senator Blumenthal concluded by urging the audience that there is plenty of opportunity to make environmental gains with the laws that are currently on the books, and by enforcing those laws, not only will the environment be protected and improved, but so will our legal system as a whole.

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