12th Annual Gilbert and Sarah Kerlin Lecture on Environmental Law: “”Making the Polluter Pay: Environmental Enforcement in the Modern Era”

The annual Gilbert and Sarah Kerlin Lecture on Environmental Law took place on October 27, 2011 at Pace Law School. This year’s lecture, titled “Making the Polluter Pay: Environmental Enforcement in the Modern Era”, featured John C. Cruden. Mr. Cruden is the Environmental Law Institute President. The lecture covered four general areas: enforcement principles, what is currently happening in the United States, weaknesses in the current system, and where the future may lead us.

The lecture began with the familiar phrase: “if you make a mess, clean it up.” Mr. Cruden said this is the conceptual framework for environmental enforcement. He also emphasized the importance of preventing polluters from economically benefiting from their actions.

The lecture set forth five enforcement principles: (1) need a set of comprehensive and well-known laws that provide an array of enforcement options; (2) need to have a trained, honest group of professionals who have resources; (3) need detection capability; (4) need a system that resolves violations in a clear, final way; and (5) need a measurable way to ensure enforcement is actually happening.

These principles will ensure that there is an ability to recover economic benefit. Mr. Cruden explained that an enforcement action is not beneficial if it does not recover the economic benefit that a company has received as a result of their adverse actions.

The framework of the current structure of environmental enforcement in the United States was analogized as a pyramid. The foundations of environmental enforcement are state and local governments, as well as citizens. The next layer consists of administrative actions that may be brought by a variety of agencies, including the Environmental Protection Agency, Forest Service, and Department of Interior. Above this tier are the civil and judicial actions brought by the Department of Justice. The peak is represented by the criminal cases that are brought. Last year’s statistics were given as an example. EPA completed 20,000 inspections in 2010, which resulted in an estimated 2,000 administrative penalty claims. Out of these 2,000 claims, there were 233 judicial referrals that lead to 198 individual criminal convictions.

The current system has its weaknesses. The main weakness emphasized was the lack of resources. Mr. Cruden said this is an interesting time for environmental issues. He believes debate is extraordinarily important and should be welcomed because it can result in additional resources being allocated towards environmental enforcement. He cited a recent study conducted by University of North Carolina School of Law, which concluded that states who had a higher per capita spending on environmental enforcement programs had higher compliance rates. The need to have clear, comprehensive legislation with an array of enforcement options and the ability to recover economic benefit was again highlighted. The final weakness stressed concerned the importance of developing emerging technologies in three specific areas: hydro-fracking, nanotechnology, and genetic modified organisms.

The future development of better mitigation, enhanced technology, and more focus on ecological services will be lead to an improvement in the current system. The outlook of improving environmental enforcement is bright. By holding polluters responsible for their actions, instead of tax payers, Mr. Cruden believes that our ability to make the environment whole will increase.



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