William & Mary Environmental Law and Policy Review
Abstract
For years, scholars and environmental policymakers have conducted a spirited debate about the comparative merits of two different approaches to enforcement of the nation's environmental laws: the coercive (or deterrence-based) and cooperative approaches. Supporters of the coercive model regard the deterrence of violations as the fundamental purpose of enforcement. They regard the imposition of sanctions, which make it less costly for regulated entities to comply with their regulatory responsibilities and avoid enforcement than to fail to comply and run the risk of enforcement, as the most effective way for inducing regulated entities to comply with their regulatory obligations. Proponents of the cooperative approach to environmental enforcement focus more on compliance than deterrence. The cooperative approach emphasizes the provision of compliance assistance and incentives by regulatory agencies. They contend that a coercive approach to enforcement may even be counterproductive if it engenders intransigence and ill will on the part of regulated entities.
Few studies empirically test these competing theories about how best to induce environmental compliance. Our study, which is based on a survey of chemical manufacturing facilities that are regulated under the federal Clean Water Act ("CWA"), represents an effort to begin addressing the paucity of information on the effects of the two enforcement approaches on environmental compliance and behavior. Although most of the respondents to our survey describe the relationships they have with their CWA regulators as generally either cooperative or coercive, they also report that some particular aspects of their relationships are more consistent with one enforcement approach, while other aspects are more consistent with the other enforcement approach. Our study calculates and interprets the correlations between all of the various aspects of the regulator-regulated entity relationship, especially the overall type of relationship: coercive versus cooperative. The results reveal only weak correlation between the various measures capturing the relationship between the regulator and the regulated entity. Cross-tabulation of the responses to all possible pairs of relationship aspects also reveals less than complete overlap between the various measures capturing the relationship between the regulator and the regulated entity. We conclude that the relationship between a regulator and a regulated entity consists of multiple dimensions. Environmental scholars and policymakers should recognize the nuanced nature of these relationships if they are to provide the most meaningful contributions to the ongoing debate over the impacts of coercive and cooperative enforcement approaches on the behavior and performance of regulated entities.