In Baytown, Texas, there sits an Exxon Mobil oil refinery -- the nation's largest -- with one pitiful environmental record. As documented in this report from the SEED Coalition, the plant has repeatedly violated state and federal laws -- frequently releasing large volumes of pollution on an unsuspecting public without reporting plant problems to the proper authorities. Over the last several years, the refinery has been guilty of dozens of incidents resulting in excessive emissions. During one maintenance episode in 1999, the plant was improperly operated for 26 days, releasing 485 tons of sulfur dioxide, 48 tons of volatile organic compounds and 5.56 tons of hydrogen sulfide - all well over legally allowable limits. What actions were taken against this major-league polluter? Amazingly, the incident described above, as well as many others, drew no enforcement interest from the Texas Natural Resource Conservation Commission or a citation of any kind. Since 1984, TNRCC did issue citations to the refinery on 28 other occasions for violations of 72 different standards. Yet of these 28 citations, the TNRCC issued only six legally binding orders to correct violations and imposed a paltry $64,000 in penalties. This "business friendly" approach may seem shocking, yet unfortunately it is not unique to Texas. Rather, it's part of a larger philosophical shift at the state level away from "deterrence-based enforcement" - which seeks to punish violators of the law with monetary or criminal penalties (the method used to regulate most other unlawful conduct, from murder to parking violations). Instead, states have chosen to rely almost exclusively on "compliance assistance programs," which include everything from voluntary guidelines to educational outreach to technical assistance. Such programs can be constructive, but when used as a replacement to deterrence-based enforcement rather than a supplementary tool, must rely totally on the goodwill of polluters. Yet this is the direction states are headed. Emphasizing this point, Becky Norton Dunlop, Virginia's former Secretary of Natural Resources, told Congress, "The truth is that enforcement action means 'failure' not success." Not surprisingly, the number of enforcement actions has declined precipitously at the state level. Between 1993 and 1997, for instance, there was a 50 percent decline in the number of state enforcement actions under the Resource Conservation and Recovery Act, according to an internal EPA evaluation reported by Inside EPA. Other internal evaluations found dramatic decreases in state enforcement actions across federal environmental programs -- in some cases as much as a 75 to 95 percent drop -- over several years during the 1990s, as pointed out in an excellent article by Clifford Rechtschaffen in the October 2000 Environmental Law Review. Adding further support to this, two separate audits from EPA's Inspector General recently found inadequate state enforcement of clean air standards and the Clean Water Act, noting that nearly 40 percent of the nation's waters do not meet CWA standards. A closer look at individual states is even more telling. For instance, as Rechtscaffen points out, a 1996 state audit found that Virginia's Department of Environmental Quality repeatedly failed to take meaningful enforcement actions against chronic and serious lawbreakers; in separate audits, EPA's Inspector General found that Arkansas, Idaho, Louisiana, New Mexico, Pennsylvania, and Texas repeatedly failed to take timely action against significant violators; and California failed to escalate enforcement actions against repeat violators, according to a 1997 audit. States are hardly ashamed of this leniency, as Norton's statement above suggests. Indeed, the Environmental Council of States (which represents the 50 state environmental commissioners) recently produced a-first-of-its-kind report, funded by Congress, extolling the states' lax approach to enforcement -- an approach that could have very severe consequences for the environment, especially given the states increasing authority. States have always played a crucial role in enforcing environmental standards, yet during the 1990s this role expanded even more dramatically as "devolution" became the vogue. Today, states are responsible for administering 75 percent of major federal environmental programs compared to 40 percent in 1993. Yet despite this central responsibility, states collected $8 million in criminal penalties during 1998, according to ECOS, compared to $92.8 million collected by federal EPA. In 1999, states collected only $275,003 in criminal penalties compared to $61 million for EPA. Advocates of compliance assistance say there is no reason to worry about these numbers. They argue that the number of enforcement actions is beside the point, that really it's about pollution reduction. And indeed, they have a point. If compliance assistance to the virtual exclusion of enforcement is truly more successful at reducing pollution, then it should be embraced. Yet frighteningly, states are not even attempting to determine whether this is true; research on the effectiveness of compliance assistance programs is scant. Instead, states have preferred to remain in a state of ignorance, as inspections have plummeted. From 1996 to 1998, state inspections declined by about 12 percent across programs, according to EPA data obtained by Inside EPA, and 50 percent under RCRA. In addition, a number of recent audits by EPA and GAO found serious deficiencies in state monitoring and inspections. For example, as Rechtschaffen points out, New Mexico failed to inspect one-third of its major air facilities over a seven-year period. Where inspections do occur, they are frequently of poor quality. According to data submitted to EPA -- and reported here by the Environmental Working Group -- almost 42 percent of all state clean water inspections were labeled "reconnaissance," flyovers or drive-bys in which inspectors never even enter the facility. Needless to say, federal EPA does not consider this type of inspection sufficient to determine compliance with pollution control laws. In some heavily industrialized states, almost all clean water inspections were flyovers or drive-bys. In several states the numbers are particularly disturbing: in Delaware, 95 percent of its CWA inspections fell into this category, in Illinois 89 percent, in Pennsylvania 88 percent, and in Indiana 86 percent. Given this dramatic drop in inspections, along with the dearth of research - both governmental and academic - on the effectiveness of specific compliance assistance programs, states have no data to measure whether compliance assistance is actually working as a replacement to deterrence-based enforcement, as much as they insist that it is. And indeed, there is good reason to be skeptical that compliance assistance can work all by itself. As pointed out by Rechtschaffen, a handful of studies have compared deterrence-based enforcement to compliance assistance programs, all finding the same result -- that deterence-based strategies are more effective than heavy reliance on compliance assistance programs. One study, for instance, compared compliance of the pulp and paper industries in the United States, which traditionally has relied on deterrence-based enforcement, to Canada, which uses a more cooperative approach. The rate of compliance with various regulations, the study found, was much higher in the United States despite similar regulatory systems. For instance, the compliance rate for total suspended solids (TSS) requirements was 59 percent in Canada and 92 percent in the United States. Similarly, another study by Environment Canada -- Canada's environmental regulatory agency -- found that a period of voluntary compliance for three forest sector industries found "negligible or unsatisfactory changes in the quantity of pollutants discharged"; when a traditional approach was employed, with penalties for violations, discharges declined dramatically. This is not to suggest there should be no compliance assistance. Indeed, businesses deserve good information on what regulations they are subject to and how to comply with them. Technical assistance and educational outreach can be important tools to increase compliance. But this doesn't mean we should drop the deterrent incentive of enforcement, which unlike compliance assistance, is a well-documented success. The two approaches are not mutually exclusive, as recent debate seems to imply. There is no question where President Bush comes down on this matter. After all, he presided as governor of Texas when the state looked the other way as Exxon Mobil racked up environmental violations. In the president's first budget he proposed to slash EPA's enforcement budget by 8 percent - eliminating 270 employees from EPA's Office of Enforcement and Compliance Assistance - while giving $25 million in grants to states. The Senate restored EPA's enforcement funding, but the House upheld the president's recommendation. Finally, the funds were restored in a conference committee. In his budget proposal for FY 2003, President Bush proposed similar cuts to the federal enforcement budget. A recent report from the General Accounting Office -- the research arm of Congress - seemed to deal a blow to the president's plan, pointing out that EPA has not collected adequate information about regional enforcement to know whether such "devolving" of responsibility can be done without harming environmental protection. Indeed, last April, GAO advised closer EPA oversight of state inspection programs for industrial emissions, which it found inadequate. Perhaps not surprisingly, this hasn't seemed to deter the Bush administration. The drum beat for devolution and compliance assistance (coupled with a gutting of enforcement) continues. Back to Executive Report