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Enforcement at the EPA: High Stakes and Hard Choices.

Joel A. Mintz University of Texas Press, $24.95 By Donald F. Ketti It's not much fun running the Environmental Protection Agency. Four out of every five of its regulations are contested in court. Billions have been spent, but environmental crises still abound. Yes, the EPA has cleaned up a handful of toxic waste sites. But thousands more are waiting their turn.

Since nobody, including top EPA officials, is very happy with the agency's results, Republican broadsides against the, agency have come as little surprise. House Speaker Newt Gingrich has called the EPA a national disgrace. California Republican Rep. Jerry Lewis complains that environmental officials "are in the enforcement business almost for the sake of it, rather than for what they can accomplish."

Though the GOP's motives are mostly ideological, Americans who are interested in smart regulation ought not reflexively defend the EPA. In fact, it is an agency much in need of renewal. Enforcement at the EPA is a short, provocative volume that provides a good starting point for discussion.

As Mintz points out, there are three complexities that must be unraveled to understand the EPA. First, its mission--securing a clean environment for everyone--is perhaps the most ambitious of any government agency. It is a job so vast that it will always remain partially undone. Second, the nation has provided the EPA with little guidance beyond the exhortation to "clean the environment." The devil lies in deciding just how clean, how soon, and at what price. But Congress and presidents have been of little help, piling detailed and conflicting requirements on the EPA, consistently underfunding the agency, and wrenching the EPA's throttle from "full speed ahead" through "go slow" to "all stop"--and back again.

Third, even when the EPA has known clearly what it wanted to do, it has never been sure how to do it. Enforcement strategies have varied widely, from aggressive regulation in the early Nixon days through weak oversight in the Reagan years to the more recent development of new government-business partnerships.

Combine an impossible job with a mushy mission, unstable leadership, and too little money to accomplish everything an ambitious Congress has laid out for it, and it's little wonder that the agency continues to struggle.

Mintz argues convincingly that an overambitious mandate and uncertain leadership are problems the EPA is probably stuck with. It would be nice if Congress decided, once and for all, what it really wanted and how to get it, and if presidents consistently appointed good, well-meaning people to the EPA. It would also be nice to have an honest national debate on the future of entitlements and the social roots of crime, but we won't get that either. At the core, the American people want conflicting things, and their elected officials simply reflect these conflicts.

Where the EPA can improve is in devising an enforcement strategy that meets legal standards, minimizes costs, and still ensures a decent environment. The EPA has to move from asking "What should we do?" to asking "How should we do it?"

Unfortunately, as Mintz points out, the EPA has a poor record translating ambitious goals into reality. In cleanup programs like Superfund, the billions of dollars spent have produced little payoff--largely due to inadequate oversight of an army of contractors.

One of Mintz's suggestions is that the EPA take a "good cop/bad cop" approach to enforcement: provide industry with technical assistance and incentives for good behavior and take strong legal action if a business misbehaves. This combination, if smartly played by the EPA, could produce environmental improvements at lower costs and be effective with a relatively small enforcement staff.

But case-by-case decisions--which is what this system would rely on--could be trouble. The EPA's high staff turnover robs it of institutional memory and would make big discrepancies inevitable. Philip Howard, author of The Death of Common Sense, would have regulators use their judgment and do what's reasonable. But "reasonableness" is tautological--what is best is reasonable, what is reasonable is best. We still don't know how to get there.

There are no one-shot answers, but there are many tactics that, when combined, could make a real difference for the EPA. It can improve its compliance assistance efforts and work harder at producing better information on environmental performance--both the EPA's and industry's. The agency can work to break down the artificial boundaries--and cut out waste--among "media" offices focusing on air, water, waste, and toxic materials. It can build the administrative competence to ensure effective management of the agency's contracting empire. Perhaps most importantly, the EPA should take its critics' long-standing advice to weigh risk and cost-benefit analysis in rulemaking and enforcement.

None of this, of course, is easy, and it certainly is not cheap. Which takes us back to those rascal Republicans. Unlike actual or promised casualties of the war on big government, such as the interstate Commerce Commission and the Commerce Department, the EPA is simply impossible for them to kill--or even to torture obviously. Everyone wants clean air and drinkable water. No one wants toxic sludge oozing onto children's playgrounds. Republicans know that.

But, if the EPA is simply too popular for a frontal attack, there are other ways to wage war against government regulations. The easiest is to sneak in through the back door by hobbling enforcement--and that's exactly what Republicans want to do, proposing to cut the agency's enforcement budget by 20 percent. It's a smart, if insidious, strategy. Rather than directly assaulting environmental policy, they go after the "bureaucrats" who are putting it into practice. Without good enforcement, as Moses discovered in leading the Israelites out of Egypt, the best of commandments go for naught.

But the GOP has also unintentionally shone the spotlight on the most complicated, difficult, and important step in the regulatory process. By targeting enforcement, they have precisely identified the key to the EPA's future. If the agency beats back budget cuts and meets the challenge of improving enforcement, it could not only survive the "revolution" but emerge as a stronger and more effective agency. Donald F. Kettl is professor of political science at the University of Wisconsin-Madison and a senior fellow of the Brookings Institution.
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Author:Kettl, Donald F.
Publication:Washington Monthly
Article Type:Book Review
Date:May 1, 1996
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