Part of the reason that enforcement flies under the radar is that it is complex. It is hard for even experienced journalists and policy analysts to understand the complexities of enforcement and the data on enforcement that the agency produces. In this section, we provide a brief primer on how enforcement works at the EPA..
First, it is important to understand that enforcement is the implementation of regulations and laws. When legislators pass laws, they direct administering agencies, like the EPA, to write regulations that flesh out those laws. The agency further shapes the implementation of regulations by writing guidance documents, memos and other documents that give administrators and employees more detailed directives about how to carry out the law.
Further complicating the enforcement process is the U.S. federalist system of environmental laws. Since the 1970s, the national government has passed a series of strong environmental laws, most of which are administered by the EPA, a national agency. But for most laws, the EPA can delegate authority to enforce the law to the states and tribal governments. Most states have the authorized power to enforce federal environmental laws, such as the Clean Air Act and Clean Water Act, which is why most environmental enforcement actions are undertaken by state environmental agencies. While most enforcement is, and has been, done by states, the EPA steps in to work on big or complicated cases (with help from the Justice Department), or to step in where states are not adequately enforcing laws.
The details of federally run enforcement practices vary across laws, but generally they happen as follows. The EPA assists regulated entities (businesses, municipalities, and so on) in complying with the law, while also monitoring them for violations. Monitoring may consist of information requests and self-reporting from industries, electronic data collection, and on-site inspections. The EPA also gathers tips from citizens. If it finds a violation, it may initiate an informal enforcement action, such as sending a notice of violation or a warning letter. Or, it may initiate formal enforcement actions. These are of two main types: civil cases (for violations of civil code) and criminal cases (for violations of the criminal code).
For civil violations, the EPA can pursue administrative or judicial cases. The most common enforcement actions are administrative, which entail the agency itself issuing a formal notice of violation or an order requiring compliance. There are many different categories of administrative enforcement actions, reflecting the variety of mechanisms available for compelling compliance.
Civil judicial cases are those cases pursued in court outside the EPA’s administrative apparatus. While less common than administrative cases, judicial cases are usually the most serious civil cases. The Department of Justice (DOJ) takes the lead on these cases, and so when these cases are initiated they are counted as “civil judicial referrals” to the DOJ. These cases typically end in consent decrees, which are a form of court-ordered negotiated settlement (with fines or compliance orders, or both).
Both administrative orders and court orders, including consent decrees, can impose civil penalties on violators and can require them to come into compliance. The EPA tracks the fines (penalties) levied in civil cases and estimates the compliance costs (also called “injunctive relief”) that result from orders and settlements. EPA also tracks the amount of money committed for Supplemental Environmental Projects (SEPs), another potential outcome of cases. SEPs require violators to fund projects to improve environmental or human health in affected communities.
Finally, in addition to civil actions (administrative and judicial) the EPA may pursue criminal enforcement actions. It undertakes these actions against the most egregious violators of environmental laws. As in civil judicial cases, the DOJ prosecutes these on behalf of the EPA, working closely with EPA criminal investigators. Criminal cases can result not just in monetary penalties but also prison time for those held responsible.
Zygmunt Plater et al., Environmental Law and Policy: Nature, Law, and Society, 3rd edition (Apen Publishers, 2004).
Leif Fredrickson and Jessica Varner, "Primer: How Enforcement Works at the EPA," A People's EPA.