The Environmental Protection Agency(USA)- A Detailed Deliberation
Imagine if you were to wake up one morning and notice that the empty patch of land by your home is now going to be developed into a cement factory. You wonder who permitted them for this and what about the possible emissions from such a factory and the repercussions on the environment and human health. A large-scale activity like this along with the location is enough for the developer to require a license to carry out such a project. To seek information one may consider going to the Environmental Protection Agency.
INTRODUCTION -US Environmental Protection Agency
The EPA (Environmental Protection Agency) is a statutory body formulated with an objective of sustainable development along with the protection of the environment. Established in July 1993 under the EPA Act, 1922, it deals with issues like licensing, enforcement of environmental laws, in-depth study of various environmental factors concerning effects of various projects on the environment.
The EPA consists of a board with one director-general who is accompanied by four directors and they are assisted by an advisory committee comprising of twelve members who not only discuss important issues but also advise the board on various issues. For ease of access of information the Environmental Protection Agency is divided on geographical as well and thematic basis with four departments under them who focus on various issues.
They also maintain a register and the License Enforcement Access Portal for public access to information. However, various other organizations are working with similar objectives and for coherence and coordination of work, the EPA also has the Network for Irelands Environments Inspection.
Most importantly the EPA, under it has the Office of Environmental Enforcement which enforces the granted licenses and the inspectors investigate environmental effects of such projects along with compliance of laws thereinafter. They also bear the responsibility to look after the compliance and enforcement of the existing environmental laws in place.
Why was the EPA created? It was formed in response to widespread public environmental concerns that gained momentum in the 1950s and 1960s. From the EPA’s creation, it has sought to protect and conserve the natural environment and improve the health of humans by researching the effects of and mandating limits on the use of pollutants.
The Environmental Protection Agency regulates the manufacturing, processing, distribution, and use of chemicals and other pollutants. In addition, the EPA is charged with determining safe tolerance levels for chemicals and other pollutants in food, animal feed, and water.
The Environmental Protection Agency enforces its findings through fines, sanctions, and other procedures. Under the Trump administration, the EPA’s recent regulations of carbon emissions from power plants, automobiles, and other contributors to climate change, instituted by President Obama, are largely being rolled back. The EPA’s size and influence have also been diminished, and criminal prosecutions.
The Environmental Protection Agency oversees a variety of programs intended to push energy efficiency, environmental stewardship, sustainable growth, air and water quality, and pollution prevention.
These programs include:
- The EPA Safer Choice program—formerly Design for the Environment—a product-labeling program that permits consumers to pick the chemically safest products available, without sacrificing function or quality
- The Energy Star program, which helps consumers choose energy-efficient appliances
- The Smart Growth program, which supports sustainable community development
- Water Sense, which inspires efficiency in water use via high-efficiency toilets, faucets, and irrigation equipment
- The National Pollutant Discharge Elimination System, which regulates the discharge of pollutants into U.S. waters for those who aren’t following regulations is at a 30-year low.
The Office of Environmental Enforcement which as the name suggests looks into the enforcement aspect of the various environmental laws. The Office of Environmental Enforcement follows three kinds of strategies which are deterrence, compliance, and risk-based methods.
The deterrence method as the name suggests is more assertive in nature and possesses a strong legal basis wherein strict laws are applied along with strict legal action and punishments as and where it may be applicable. The compliance method however is much milder in nature and can be viewed as more ‘persuasive’ in nature in comparison to the deterrence method.
However, it must be noted that the ultimate objective of both the methods is the same but the means of achieving these objectives are the basic grounds where these methods differ from one another. The common question which arises in a person’s mind while having to choose between the two is; when to punish and when to persuade?
There have been many contentions and arguments by various scholars as to which would be the more effective and appropriate method. Many have argued that the compliance method is more effective as it is harmonious in nature and comparatively inexpensive as compared to the deterrence method and thus more effective in the long run.
Thus, in my opinion, it must be understood that every case is unique and thus to have an effective system in place there must be a system formulated which is the amalgamation of both the deterrence as well as the compliance system to effectively enforce laws in a fair and just manner which is not too harsh but not too mild either. For this purpose, one may also refer to the game theory in economics as well as the works of John Braitfiweite and Ian Avras.
On the other hand, we also have the risk-based system which actually looks to strike a balance between any enforcement action as well as the possible risks to human health or the environment. The risk-based and targeted system as one would call it actually goes on to look in various aspects and study or analyze the same to decipher the activities or projects which cause the maximum amount of harm to the environment and human health along with those that are relatively less harmful and tackle the extremely harmful ones first.
However one must note that the projects causing lesser damage in comparison will not be neglected merely because they were minor breaches of regulation. It must also be noted that the risk-based target system uses ‘sanctions’ in form of punishments as opposed to that of deterrence and compliance.
Whilst deciding what enforcement action to take the EPA looks at various factors such as; the seriousness of the breach and non-compliance along with the duration of such noncompliance, evidence for intention, the history of compliance and non-compliance, financial gains due to non-compliance, and the conduct after such non-compliance is discovered. Based on the above-mentioned criteria along with the significance of the breach, various punishments may be decided upon.
The Environmental Protection Agency may use methods ranging from; verbal warning, compliance meeting, enforcement notice or warning letter to more stringent methods for more significant breaches such as administrative penalties, section notice or direction, circuit court injunction, the prosecution in the district court, etc. and in cases of a serious breach of legislation they may go on to impose high court injunctions, revocation of license, submission of the file to director of Public Prosecutions, etc.
To my mind, these above-mentioned penalties and punishments are apt for the purpose as they clearly demarcate the boundaries based on the significance of the various types and degrees of non-compliance and thus have enumerated the various penalties that would apply based on the nature of the situation at hand as every case is unique as I mentioned earlier.
The Environmental Protection Agency has been criticized for its lack of progress towards environmental justice. Administrator Christine Todd Whitman was criticized for her changes to President Bill Clinton’s Executive Order 12898 during 2001, removing the requirements for government agencies to take the poor and minority populations into special consideration when making changes to environmental legislation, and therefore defeating the spirit of the Executive Order.
In a March 2004 report, the inspector general of the agency concluded that the EPA “has not developed a clear vision or a comprehensive strategic plan, and has not established values, goals, expectations, and performance measurements” for environmental justice in its daily operations. Another report in September 2006 found the agency still had failed to review the success of its programs, policies, and activities towards environmental justice. Studies have also found that poor and minority populations were underserved by the EPA’s Superfund program and that this situation was worsening.
Barriers to enforcing environmental justice
Many environmental justice issues are local, and therefore difficult to address by a federal agency, such as the Environmental Protection Agency. Without strong media attention, political interest, or ‘crisis’ status, local issues are less likely to be addressed at the federal level compared to larger, well-publicized incidents.
Conflicting political powers in successive administrations: The White House maintains direct control over the EPA, and its enforcement actions are subject to the political agenda of who is in power. Republicans and Democrats differ in their approaches to environmental justice. While President Bill Clinton signed Executive Order 12898, the Bush administration did not develop a clear plan or establish goals for integrating environmental justice into everyday practices, affecting the motivation for environmental enforcement
In my opinion, the Environmental Protection Agency is the sole authority associated with decision making upon the granting and not granting of licenses and various other functions do not seem like the aptest methodology. This will always leave open some amount of room for corruption to creep in. There must always be another body constituted to ensure a just and fair process. Another issue arising is the fee that one is required to pay when seeking to object or challenge the ‘proposed determination’.
A very high fee of 126 euros has been imposed which actually discourages many people on account of how expensive it is. Therefore even if the provision to raise contentions is available it comes at a rather high price and thus it seems as it is more of a ‘window dressing’ rather than actual facility provided. Not only this but even the oral hearing requires a fee of 100 euros which in a way filters the number of people asking for an oral hearing and even after payment of such a fee the decision of whether or not to conduct such a hearing rests with the EPA.
The fact that only the EPA goes through the material in-depth and is the sole decision-maker who is not answerable to anyone is highly unjust in my opinion. The only method to challenge a license is that of Judicial Review in the High Court and one must note that the judicial review proceeding is NOT an appeal.
One must also keep in mind that when challenging a big company and the license granted to them, the layperson doing so may not be equally equipped as the company in terms of finances and a legal team or an advisory boards of experts at their disposal to combat such procedures and this may in turn even become emotionally draining for such individuals.
However, given the existent problem with setting up a special court in Ireland solely to deal with such matters, in my opinion, the best solution to such a problem would be a legal wing in collaboration with the EPA so that the legal experts and environmental experts can come together at one place to harmoniously work out various issues and such a legal wing must function in a similar method of courts and its main objective should be the interpretation of various laws and its applicability along with a quick and inexpensive alternative to procure justice.
Such a collaborative body will also be useful in terms of the fact that EPA will no longer remain the sole decision-maker and thus no matter will be decided upon without mutual consent. Along with this, a few regulations as to subsidization of fees for such processes must also be considered so that it becomes accessible in the literal sense to one and all, and people are not discouraged.