This Article discusses a number of options for EPA to strengthen state performance and bring it more in line with EPA's expectations. First, EPA must play a stricter gate-keeping function in initially authorizing state programs, and more regularly reassess and report the adequacy of state enforcement authorities and state capacity. Second, EPA must stop delivering a mixed message to the states about the enforcement practices it expects the states to follow. Instead, it must establish clear expectations for performance. Third, in terms of the substance of those expectations, EPA should revise its criteria for evaluating whether state enforcement programs work. Because this question is central to EPA's oversight practices, we discuss it at length in this Article. Among other things, we recommend that EPA place greater emphasis on measures based on how well states are doing in actually achieving compliance by regulated entities, and, to the extent feasible, improved environmental outcomes, although we also believe that continued reliance on activity-based measures is appropriate. Fourth, EPA should explore different administrative approaches for conducting program evaluations. Fifth, and related, EPA should improve its data management programs to enhance its ability to evaluate state programs. Sixth, EPA should implement a "differential oversight" scheme that rewards in a meaningful fashion better performing states. Seventh, EPA should publicly report its evaluation of state programs, and also improve public accessibility to the underlying data about state performance, as a way of using the power of an external spotlight to spur improved government performance. Eighth, EPA should make the prospect of program withdrawal a more credible threat and should also develop more graduated sanctions short of outright program withdrawal. Finally, EPA needs to continue to hone its capacity for strategic intervention—to help states to build capacity, and to take direct action in selected cases when needed. These options are not mutually exclusive; instead, they can and must be integrated in a variety of ways.
33 ELR 10559 (2003)