Tuesday, March 4, 2014

How Enforcement Works

Last Saturday’s New York Times had a story describing the “defanging” of North Carolina’s environmental regulatory agency.  The story began with this depressing quote:

“The General Assembly doesn’t like you,” an official in the Department of Environment and Natural Resources told supervisors called to a drab meeting room here. “They cut your budget, but you didn’t get the message. And they cut your budget again, and you still didn’t get the message.”

Trip Gabriel, Ash Spill Shows How Watchdog Was Defanged, N.Y. Times, Feb. 28, 2014.  What follows has become all too familiar: intimidated by political pressure, the state agency finds itself in disarray, even the threat of regulatory enforcement dissipates; and, sooner or later, massive amounts of coal ash start flowing downriver.

 The story made me think of my own first in-depth lesson in the value of environmental enforcement.  It came in what may initially seem like a very different context: universities.  But the story provides an interesting morsel of recent environmental history, and it says a lot (I think) about enforcement’s role.

 For years, universities weren’t accustomed to thinking of themselves as targets of environmental enforcement.  But in the mid-1990s, EPA audited Yale’s environmental compliance, and the results would shock anyone accustomed to thinking of universities as environmental leaders.  According to a Boston Globe story about the resulting settlement, Yale wound up pledging over half a million dollars to environmental programs and paying a $69,750 fine.  Many New England Colleges Break Environmental Rules, Boston Globe, May 27, 1996.  EPA’s northeast regional office also announced that it was making the educational sector a target of its enforcement efforts.  More audits and more fines, many of them quite large, soon followed.  See, e.g, Tatsha Robinson, UNH Faces Fine in EPA Waste Investigation, Boston Globe, March 15, 1999; Peter J. Howe, BU to Spend $2M in EPA Settlement, Boston Globe, October 9, 1997.

 At the time, I was a recent college graduate working for an environmental consulting firm just outside Boston.  For us, enforcement meant opportunity, and we aggressively marketed our own auditing services, promising universities that we would find, and fix, their problems before EPA came knocking.  As a business move, it worked well, and I soon found myself seeing parts of college campuses that I’d never seen as a student.  Some of what I found shocked me.   I had worked on plenty of hazardous waste sites.   But the scariest things I ever saw were in the chemistry labs of universities.  Even a well-managed lab—and I did see some--is a dangerous place; chemicals that seem familiar to most researchers become quite worrisome once one reads their material safety data sheets.  And many of these labs weren’t well managed.  Among other problems, I saw old and potentially explosive picric acid containers; incompatible wastes stored together; and, in some places, unidentified, abandoned, frothing messes.    The labs weren’t Love Canal, but they also weren’t anywhere I would want to work—or would want to send my children to school.

 So why was this happening?  The answer isn’t some old trope about evil, greedy corporations placing profits above environmental quality and human well-being.  Universities are financially driven, of course, but I believed then, and still believe now, that most universities take their public service missions quite seriously.  Nor was it a lack of expertise.  One sometimes hears complaints that environmental laws have become too complex for anyone to comply with, but at most of these campuses, there were health and safety managers who had a pretty good idea what their school was doing wrong and how it might do better.  Instead, the institutional problems were more mundane.  Health and safety departments were understaffed.  They also lacked leverage.  At most universities, the star researchers rule the roost, and those researchers are unlikely to listen when a health and safety manager with only a bachelor’s degree explains why the lab needs to be managed differently—unless, of course, an enforcement threat adds force to the health and safety manager’s words.  And for years, most universities hadn’t even considered the possibility of that threat.

 When the enforcement threat did arise, it changed all of those dynamics.  A few months after EPA announced that universities would be an enforcement priority, it hosted a public informational meeting on compliance at colleges and universities, and I went.  The room was filled with high-level administrators, most of the people who would never have shown up at a health and safety conference a few months earlier.  They were paying close attention, and they took what they heard seriously.  Universities started hiring consultants to perform audits.  They started listening to their consultants—and their own health and safety managers—when they recommended changes to environmental management programs.  And they made the changes.  Labs got cleaned up.  Plans were updated and modernized.  Better management protocols went into place.  Training improved.  When I left for law school, the transition still was just beginning.  But even in my short time working with universities, I thought we were able to make a huge and positive difference.

So what does enforcement do?  Part of the answer is so obvious that it’s disheartening how often it needs to be restated.  It provides people with incentives to actually comply with environmental and safety laws.  And every institution—not just evil corporations—needs those incentives; compliance requires persistent attention to detail, and we all have the impulse to cut corners.  In addition, enforcement often creates change not by punishing the environmentally bad actors within in institution, but instead by empowering the people within the institution who want to do things right.  At least, that’s what happened with universities, and the consequence has been a safer working and learning environment for thousands of students.

- Dave Owen



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