Volts podcast: rampant environmental rule-breaking and how to fix it, with Cynthia Giles

In this episode, career environmental regulator Cynthia Giles discusses the rampant rule-breaking common in environmental rule and regulations and how to solve the problem — not with greater enforcement, but with smarter rule design.

Full transcript of Volts podcast featuring Cynthia Giles, July 14, 2021

(PDF Version)

David Roberts:

The US has hundreds of environmental rules and regulations on the books, meant to achieve various environmental goals — clean up coal plants, reduce toxins in consumer products, limit agricultural waste, and so on.

Once these rules and regulations are put in place, most people don’t give them a lot of thought. To the extent they do, they tend to believe two things: one, that environmental rules are generally followed (maybe, what, 3-5 percent break the rules?), and two, that the answer to noncompliance is increased enforcement.

According to Cynthia Giles, both those assumptions are dead wrong.

Giles was head of EPA’s Office of Enforcement and Compliance Assurance for all eight years of Obama’s presidency — and had a long career in environmental enforcement before that — so she knows something about rules and enforcing them. Through the Harvard Environmental & Energy Law Program, where she is a guest fellow, Giles has been writing a series of pieces (which will be issued as a book in 2022) on “Next Generation Compliance: Environmental Regulation for the Modern Era.”

In those pieces, she reveals that environmental rule-breaking is absolutely rampant — and that there’s surprisingly little increased enforcement can do about it. Instead, the key is to design rules better, such that compliance is the default choice.

I’m a sucker for policy design, so I was eager to talk to Giles about what she’s learned, how to design rules well (or poorly), and most of all, the best way to design climate rules.

With no further ado, welcome to Volts, Cynthia.

I really enjoyed your articles. As I was saying on Twitter earlier, I love it when I discover an expert who's making a well-argued, well-cited argument in favor of something I believe already but didn't have the chops to defend myself. I feel vindication.

There's a number of mind-blowing things in here, but one of the initial mind-blowing things that people don't understand very well is just how common violations and rule-breaking are. You spent eight years as head of EPA enforcement for Obama. I'm curious: before going into that position, did you know this about environmental rules?

Cynthia Giles:

This is certainly something I had strongly suspected for a long time. I've worked in the environmental enforcement arena for a long time and I persistently saw a mismatch between what I was seeing in the field and what I was hearing so many people say — that compliance with environmental rules was good.

After I started in my position in the Obama administration, I asked folks to pull together everything we know about how compliance is with environmental rules. And I discovered that the evidence supported what I had suspected all along, which is that the rate of violations is substantially higher than most people think.

David Roberts:

What do we mean by substantially higher? Give us a sense of the scale here.

Cynthia Giles:

I'll give you the contrast between what's popularly believed and what the facts are. As I mentioned, I have spent most of my professional career in environmental and compliance-related work. During that time, including during the Obama administration, I've asked a lot of people what they think the rate of non-compliance with environmental law is. The most common answer I get, including from people who have also spent their entire professional careers working in this area, is 5 to 10 percent. That's what people think.

It's nowhere near that. Not close. The rate of serious violations, the ones we care about the most, is 25 percent in most programs. And there are plenty of programs, I'm sorry to tell you, with rates substantially worse than that. It's not rare to find serious violation rates in the 70 percent and higher range.

I want to make sure I'm clear: when I'm saying someone has serious violations, I'm not saying they're violating every single thing, every day, 24/7 — but they are having a lot of violations we care about, in terms of protecting people's health.

So the rate is substantially worse than most people think. And that's just the ones we know about. There's plenty where the data is thin — indications are bad, but the data is not there to say anything definitive about it.

David Roberts:

There are all sorts of bad things about common violations, but the central bad thing is that we're not achieving the goals of these rules and regulations. If violations are 50 percent, you're getting 50 percent of what you think you're getting out of the rule, right?

Cynthia Giles:

There's a lot of areas where we know there are environmental problems — over 130 million people in the United States live in areas that don't meet the health standards for air quality, and almost half of the waters in the United States are designated as poor quality. There's a lot of evidence about serious issues that affect people's health that are widespread, and certainly this incredibly high rate of violations is a significant contributor to that.

David Roberts:

You come into EPA in this enforcement position and inherit a bunch of rules that you have to enforce, but you didn’t have a hand in designing. The other intuitive belief people have about this is, insofar as there are violations, insofar as people are breaking the rules, the solution to that is better enforcement.

From your experience at EPA, how much can you do with additional enforcement? Can you substantially increase compliance? What's the range of effect you can have?

Cynthia Giles:

That very much depends on the problem. For some of the most serious and high-rate violations — coal-fired power plants are one example; for many, many years, they were by far the highest-polluting sector and the rates of violation were stunning — EPA decided, correctly in my view, that the health risk was so substantial, and the violation rate was so serious and egregious, that EPA would just sue all the coal fired power plants. One at a time, they’d go after them.

It was essential for public health that they be made to comply and install modern pollution controls — which by the way, reduce pollution by 95 percent. I mean, we're not talking about minor differences. It was really, really big.

Some of these problems — coal-fired power was one, cities that were discharging raw sewage into surface waters around the country was another — were so serious from a public health perspective that EPA decided to go after them individually.

That is not a strategy that can work for the vast array of programs that EPA administers. Some sectors have a million or more regulated entities, or it's hard to tell who's violating. For those kinds of problems, enforcement as your first line of defense is obviously not going to be able to do it. You don't have the resources to do it. But you couldn't do it even if you did nothing else but that one thing.

So for many problems, enforcement can never be the principal way of solving noncompliance.

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