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Abstract

It would be difficult to contest the status of pollution as a public health problem. However, environmental regulation by definition imposes limitations on private individuals and entities, and those limitations become most acutely obvious in the context of government enforcement actions. As a result, there always has been and likely always will be resistance to environmental regulation and enforcement. In light of this resistance, pollution regulation’s public health benefits offer strong rhetorical and political arguments in favor of such regulation and its effective enforcement, especially during a flailing economy.

Unfortunately, in specific situations, the public health benefits of pollution control law and its enforcement are not always obvious. Because of this potential obscurity, this Article argues that the Environmental Protection Agency’s (EPA’s) annual enforcement assessments and reports, prepared by its Office of Enforcement and Compliance Assurance (OECA), become important vehicles for communicating the public benefits of environmental enforcement to Congress and the American public. Since 2005, OECA has been reporting specifically on the public health benefits of its Clean Air Act enforcement efforts. This new reporting metric demonstrates the rhetorical power of qualitative assessments of the public health benefits that pollution regulation and enforcement provide. However, because OECA has been using it only for Clean Air Act enforcement and not for enforcement actions under other statutes such as the Clean Water Act, the Resource Conservation and Recovery Act, or even the Safe Drinking Water Act, the new public health metric also underscores the rhetorical anemia of the EPA’s more traditional quantitative measures of enforcement effort. This Article argues, most basically, that the rhetoric of enforcement reporting matters. While acknowledging the difficulties of producing quantitative public health benefit calculations for all of the major federal pollution control statutes, this Article concludes that the EPA and OECA could beneficially strengthen the public health analyses of enforcement by providing more and more prominent qualitative assessments of the value of certain kinds of enforcement actions, across statutory regimes.

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