The real future of controlling climate change depends on enforcement

While I have hopes that some version of the Waxman-Markey bill will pass the U.S. Senate and that a binding agreement with all countries to control greenhouse gases will happen in Copenhagen, the ugly truth is that it is all for nought unless we have credible enforcement of our laws.  Today the New York Times (reprinted in other papers such as the Houston Chronicle) reminded us that we have severe environmental problems simply because the states and the federal government do not work hard to enforce these laws.
Here is an excerpt of the Times article:

“Clean Water Laws Are Neglected, at a Cost in Human Suffering By CHARLES DUHIGG

Jennifer Hall-Massey knows not to drink the tap water in her home near Charleston, W.Va.

In fact, her entire family tries to avoid any contact with the water.

Her youngest son has scabs on his arms, legs and chest where the bathwater – polluted with lead, nickel and other heavy metals – caused painful rashes. Many of his brother’s teeth were capped to replace enamel that was eaten away.

Neighbors apply special lotions after showering because their skin burns. Tests show that their tap water contains arsenic, barium, lead, manganese and other chemicals at concentrations federal regulators say could contribute to cancer and damage the kidneys and nervous system.

“How can we get digital cable and Internet in our homes, but not clean water?” said Mrs. Hall-Massey, a senior accountant at one of the state’s largest banks.

She and her husband, Charles, do not live in some remote corner of Appalachia. Charleston, the state capital, is less than 17 miles from her home.

“How is this still happening today?” she asked.

When Mrs. Hall-Massey and 264 neighbors sued nine nearby coal companies, accusing them of putting dangerous waste into local water supplies, their lawyer did not have to look far for evidence. As required by state law, some of the companies had disclosed in reports to regulators that they were pumping into the ground illegal concentrations of chemicals – the same pollutants that flowed from residents’ taps.

But state regulators never fined or punished those companies for breaking those pollution laws.

This pattern is not limited to West Virginia. Almost four decades ago, Congress passed the Clean Water Act to force polluters to disclose the toxins they dump into waterways and to give regulators the power to fine or jail offenders. States have passed pollution statutes of their own.

But in recent years, violations of the Clean Water Act have risen steadily across the nation, an extensive review of water pollution records by The New York Times found.

In the last five years alone, chemical factories, manufacturing plants and other workplaces have violated water pollution laws more than half a million times. The violations range from failing to report emissions to dumping toxins at concentrations regulators say might contribute to cancer, birth defects and other illnesses.

However, the vast majority of those polluters have escaped punishment.

State officials have repeatedly ignored obvious illegal dumping, and the Environmental Protection Agency, which can prosecute polluters when states fail to act, has often declined to intervene.”
Enforcement is a critical issue for any legal system, but it requires considerable vigilance in environmental issues since no one private party has an incentive to sue for others, and we depend strongly and the government to do its job.  We know that money is important (see, but so to is how a system is designed.  Several years ago, I was suspicious of an agency’s ability to handle enforcement of the important rules necessary to implement a greenhouse gas cap and trade system (See The Enron Story and Environmental Policy, 33 ENVTL. L. REP. 10485 (2003)).   However, having seen how what is regulated can be simplified and still capture most of the greenhouse gases causing harm, and noting where mistakes have been made, I do believe that a cap and trade system can be an effective way to control greenhouse gases…but Congress and the rest of the world need to be prepared for enforcement difficulties that can result and make sure effective systems are in place to have the system operate correctly.

In the United States we have taken an important first step with the EPA’s release of rules governing the reporting of greenhouse gas emissions.  These seem to be effective in both reporting and coverage.  They also build on and  correct some of the problems that existed in the European Union cap and trade system.  if the International community can adopt similar requirements AND find a way to measure and track offsets effectively, we will be home free.  However, we have to keep up the will (and in the case of bio-sequestration offsets, a focus on legitimacy) to make this work.  Otherwise, it will be for nought.