January 01, 2016

Vantage Point

Andrea Rimer

As the cover of this issue illustrates, the concepts of compliance and enforcement can be viewed as a system that, at its most productive, achieves balance and continued momentum. Environmental laws and regulations are too numerous and varied for regulators to constantly police and actively enforce in every instance, and the cost and effort of such constant top-down enforcement would quickly overwhelm both taxpayers and the regulated community. Instead, compliance is most effectively achieved in an environment in which the regulated community is given incentives (both positive and negative) and enough clear and consistent direction to achieve and maintain compliance in its particular situations. While many of these incentives are increasingly coming from the public—with the expectation that the companies we invest in and transact with also serve as good stewards of the environment and maintain compliance with laws—governmental enforcement likely will always be necessary to catch the outliers and define the parameters of acceptable compliance.

During almost twenty years of representing the regulated community, I have rarely encountered a regulated entity or individual that simply refuses to comply with applicable regulations. Instead, the reasons for alleged noncompliance are typically more complex and can result from a number of different factors, including ambiguous and/or changing interpretations of regulations; legitimate disagreements regarding the application of regulations to specific operations; failure to adequately understand and interpret regulations in particular situations; and simple, sometimes unavoidable, accidents and errors—just to name a few. Where legitimate disagreements exist regarding the interpretation or applicability of regulations, enforcement can serve as a crucible, with the outcome providing much-needed clarity to all parties. The threat of enforcement also can be a powerful tool in convincing a regulated entity to devote the often significant resources necessary to create an effective system of compliance and minimize noncompliance where possible. Where resources are scarce, the specter of potential governmental or citizen enforcement and resulting penalties can create strong support for devoting necessary resources to environmental compliance efforts.

In this issue of NR&E, our authors explore compliance and enforcement from a number of different perspectives, highlighting the role of each in various situations. From EPA’s efforts to enhance compliance through its Next Generation Compliance initiatives, to specific examples of litigation and enforcement case studies in which regulatory and scientific interpretation played central roles, to a focus on how companies may actually use a compliance crisis to enhance their corporate culture and overall compliance, the authors in this issue focus on various aspects of compliance and enforcement across a broad spectrum of environmental practice areas. We hope you enjoy this issue and gain from the perspectives and insights presented in each of the articles.

Andrea Rimer

Issue Editor

Andrea Rimer