It’s expensive to pollute the water in Colorado. The state’s median fine for companies caught violating the federal Clean Water Act is over US$30,000, and violators can be charged much more. In Montana, however, most violators get barely a slap on the wrist – the median fine there is $300.
Similarly, in Virginia, the typical Clean Water Act violation issued by the state is $9,000, while across the border in North Carolina, the median is around $600.
Even federal penalties vary significantly among regions. In the South (EPA Region 6) the median Clean Water Act penalty issued by the U.S. Environmental Protection Agency regional office is $10,000, while in EPA Region 9 (including California, Nevada, Arizona and Hawaii), the median is over six times as high.
We discovered just how startling the differences are in a new study, published in the Stanford Environmental Law Journal. My colleague Amy Vaughan and I reviewed 10 years of EPA data on penalties issued under the Clean Water Act.
The degree of disparity we found in environmental enforcement is disturbing for many reasons. Persistent lenient penalties can lead to lower compliance rates and, therefore, more pollution. At the extreme, a lax enforcement regime can lead to environmental disasters. Disparate enforcement is also unfair, leaving some companies paying far more than others for the same behavior. Without a level playing field, competitive pressure may lead companies to locate in areas with more lenient enforcement.
There is a relatively simple solution, and another good reason to implement it: These disparities may violate the U.S. Constitution.
Why such big differences?
We think the main reason for the differences is that the EPA has not fulfilled its duty to require robust state enforcement.
Many federal environmental statutes – including the Clean Water Act, the Clean Air Act and toxic substances laws – enable the EPA to delegate enforcement to state agencies. In fact, state agencies undertake the vast majority of enforcement actions of these federal laws.
However, the EPA is supposed to delegate enforcement only to states that are deemed capable of taking on this responsibility, including having the ability to issue permits and conduct inspections. Importantly, the states must have laws authorizing an agency or the courts to impose sufficient penalties on violators.
Most state delegations occurred long ago, in the 1970s and ‘80s, shortly after Congress passed these major environmental statutes. In 1978, EPA decided that it would require states to have a minimum of $5,000-per-day penalty authority before they would be delegated enforcement power for the Clean Water Act. Forty-five years later, that required minimum is still the same.
In contrast, the Clean Water Act gives the EPA and federal courts much higher penalty authority – it started at $25,000 per day and, because of congressionally mandated annual inflation adjustments, had risen to $56,540 by the end of 2022.
That difference shows up in the fines: We found the average penalty issued by states is about $35,000, while the average penalty issued by the federal EPA is over five times as high at $186,000. The median state penalty is $4,000, while the median federal penalty is almost $30,000. While the EPA tends to be involved in the most serious cases, we believe low state penalties can also be traced to more lenient state penalty provisions.
There is also a wide disparity among state penalty statutes. At one end, Idaho law limits civil penalties to $5,000 per day, while Colorado’s law allows for penalties of up to $54,833 per day.
In some cases, penalty differences might have a legitimate explanation. However, the degree of disparity among statutes and penalties that we found with the Clean Water Act suggests the U.S. doesn’t have uniform federal environmental law. And that can run afoul of the Constitution.
A question of unconstitutional unfairness
The EPA has the power to require states to have more robust penalty provisions, more in line with federal penalties. The EPA also can provide better guidance to the states about how those penalties should be calculated. Without guidance, virtually any penalty could be justified.
As an environmental law expert, I believe the U.S. Constitution requires EPA to take these steps.
A basic tenet of fairness holds that like cases should be treated alike. In federal criminal law, for example, sentencing guidelines help limit the disparity that can result from unlimited judicial discretion.
Unfortunately, environmental law doesn’t have a similar system to provide uniform treatment of pollution violations by government agencies. Extreme penalties, at both the high and low ends, may result.
The U.S. Supreme Court has held that disparate fines can reach a degree of randomness that violates the fairness norms embodied in the due process clause of the Constitution’s 14th Amendment.
In a case in the 1990s, the Supreme Court determined that a $4 million punitive damage award in a complaint involving only $4,000 in actual damages violated the due process clause. The court held that the amount of punitive damages imposed must bear some relationship to the actual harm caused by the conduct. Moreover, the court noted that punitive damages must be reasonable when compared to penalties imposed on others for comparable misconduct.
I believe the same test should apply to environmental penalties.
Unless we have some uniform system of calculating penalty amounts, the discretion allowed results in vastly different penalties for similar conduct. Our study focused on the Clean Water Act, but the results should trigger more research to determine whether these issues arise in other environmental areas, such as the Clean Air Act or hazardous waste laws.
The comparatively lenient enforcement we discovered in some states is not only unfair, it’s ultimately bad for the environment.