Promoting Pragmatic Risk Regulation: Is Enforcement Discretion the Answer?

Over the past decade and more, there has been a sustained attack on our nation\u27s approach for regulating environmental, health and safety risk. Critics have argued that the current system is inefficient, irrational, and overly rigid and have proposed a raft of solutions for improving our regulatory approach, most prominently greater reliance on cost-benefit analysis. In Risk Regulation at Risk: Restoring A Pragmatic Approach, Professors Sidney Shapiro and Robert Glicksman offer a strong, coherent defense for our current system for environmental, health and safety regulation based on the long-standing philosophical tradition of pragmatism. Their book persuasively documents how risk-based statutes enacted by Congress reflect a pragmatic accommodation of widely shared social values, including those that are not economically quantifiable. For example, on the one hand, the book shows how statutes recognize that the protection of human life and the environment has a fundamental value unrelated to economic measurement and, on the other hand, recognize that efficiency matters and that cost should be an important consideration in regulatory policy. The specific question addressed by this Article is to what extent one of the various mechanisms proffered as a potential vehicle for making back-end adjustments-namely, the use of enforcement discretion-is well suited to achieving the authors\u27 goals. In short, is it a viable and effective tool for mitigating either unintended or unwise consequences of regulatory policy? The authors provide little discussion about how they envision this particular technique would be used to achieve back-end adjustment, but they cite as examples the refusal by an agency to enforce de minimis or technical violations and EPA\u27s Supplemental Environmental Project (SEP) policy, in which regulated entities that have violated the law can avoid paying fines by undertaking environmentally beneficial projects. EPA\u27s SEP policy is one for which there is no statutory authorization; the EPA developed it as part of its own efforts to improve enforcement policy. This Article analyzes these questions largely in the context of environmentalregulation. The focus is on the process of back-end enforcement adjustments; I do not explore fully the substantive standards on which such adjustments should be based. Part II discusses how enforcement discretion is used in the current system. Part ill analyzes whether it is desirable to give agencies more enforcement discretion in order to accomplish back-end adjustments. Part IV examines the role that judicial review and increased public participation could play in minimizing the possible pitfalls of enhanced enforcement discretion