Enforcement: Toeing the Line or Setting the Pace?
By James E. Dusch, Esq., Director, Office of Policy Services, State of Maine, U.S.A., Department of Environmental Protection, jim.e.dusch at maine.gov

A common view of environmental enforcement, and penalty resolutions in particular, in the United States is one of a tool which, when not used, inherently puts people and their environment in jeopardy. The failure of an agency to maintain a vigorous record of pursuing penalty actions may be construed as indifference to society’s expectation that the government protect and enhance public health, and often quickly creates backlash that makes decisionmakers feel politically susceptible. A dilemma this evident expectation creates for environmental regulators who, at least in the U.S. State of Maine, are passionate about public service, is one of determining where their precious time will achieve the most significant environmental outcomes, and then explaining those choices to the public in a way that is understood and appreciated.

Metaphorically, when viewed through a lens of environmental outcomes, is the role of enforcement maintenance or construction? Do improvements in environmental conditions result from the standards that are set or the enforcement of those standards? I believe that understanding the status of a regulatory system, the defined role of enforcement, and the outcomes expected from enforcement are crucial to understanding whether society’s widely held beliefs about enforcement are justified.

Think about a river segment failing to meet water quality standards. Is your inability to swim without threat of contracting a disease the result of the requirements written into a license or that the violation of those requirements has gone unenforced?

As with much of the United States, Maine has been implementing a well organized system of environmental regulation since the early 1970s. Enforcement has always been a cornerstone of that system, and a point of pride for the regulators implementing it in Maine . In fact, a cursory review of compliance records correlated with resolved enforcement actions might lead one to the commonly held belief that enforcement gets environmental results. But is it true?

The primary role of enforcement in Maine is maintenance, not construction. As important as enforcement is within the regulatory system, when one of the State’s river segments is classified as “C” rather than “B” or “A,” thereby accepting diminished water quality, enforcement of the licenses written to maintain Class C will do little to directly remedy the lowered water quality. The statutes enacted by our legislatures and governors throughout history establish a system in which enforcement primarily exists to address the exceedance of regulatory standards. Although the degree to which those standards are exceeded and the duration of the exceedances certainly affects environmental quality, enforcement has most often been pursued without evidence of environmental harm; pursued for the purpose of maintaining the foundational objectives of equity and consistency in a law enforcement system.

The standards of conduct existing in Maine ’s system are the primary place where environmental quality improvements occur. If we accept a policy allowing the release of Mercury (Hg) through air emissions, the vigorous enforcement of wastewater discharge standards for that same compound likely does little to eliminate water contamination because ongoing deposition diminishes enforcement’s benefit. We have known for many years that our approaches must be systematic, with scientific assessment of environmental conditions, and the influences on those conditions, informing the standards. Without the standards, there would be no enforcement. More importantly, without meaningful standards, set at levels protective and restorative to environmental conditions, enforcement of those standards is meaningless for environmental protection purposes.

So why is enforcement the most common and easily understood litmus test of success and failure in our environmental protection system? Is this unique to the United States or is this common throughout the world? My experience is that seeking answers to these questions may very well unlock some crucial strategies for improving our implementation of Maine’s regulatory system, and possibly others.