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First, the Article describes the enforcement approach being advocated by many states. To some, it represents an innovative, superior way to achieve compliance. To others, the states' vision is a pretext for weakening enforcement that will result in more widespread violations by regulated facilities. The Article also examines how EPA has shifted its own enforcement policies in response to state pressures.

Next, the Article discusses what we know empirically about which system works better. There is relatively little evidence about compliance assistance programs, more for deterrence-based approaches. The evidence shows that deterrence-based approaches work, and that in the absence of meaningful sanctions, compliance suffers. The Article then examines a few of the leading theoretical arguments for shifting to a cooperative-oriented strategy. Finally, it details some elements of a reformed deterrence-based system that will work most effectively to assure compliance with environmental law. This approach includes more compliance assistance, more flexible deterrence-based approaches, and mandatory disclosure as an adjunct to enforcement.


This Article is excerpted from a book on the evolving federal/state environmental enforcement relationship that Professor Rechtschaffen is writing with Professor David Markell. It will be published by the Environmental Law Institute in 2001. Portions of this Article previously appeared in Clifford Rechtschaffen, Deterrence vs. Cooperation and the Evolving Theory of Environmental Enforcement, 71 S. CAL. L. REV. 1181 (1998), and are reprinted with permission of the Southern California Law Review.