Enforcement of Environmental Law in a Triangular Federal System: Can Three Not Be a Crowd When Enforcement Authority is Shared by the United States, the States, and Their Citizens?

Abstract

This Article will examine critically the Clean Water Act's triangular structure of federal, state and citizen enforcement. It will conclude that a triangulated federalist enforcement program can be successful only if citizens are unimpaired in their ability to fill the substantial gaps that exist in state and federal enforcement programs. Even in the most earnest federal and state enforcement programs, there are substantial institutional and political obstacles to adequate enforcement. Unfortunately, the present system does more to hinder citizen enforcement than to promote it. If this trend continues, and as states continue to compete with each other for business development by relaxing enforcement activity, the regulated community will realize that it cannot justify voluntary compliance with permit requirements. Under the 1990 Clean Air Act amendments the CWA's enforcement system soon will be applied to the control of urban air quality, toxic air pollutants, and acid deposition. Thus, not only will the cleanliness of our water depend on the efficacy of the CWA's triangulated federalist enforcement system, but so will the nation's hopes for clean air.

Keywords: environmental law, Clean Water Act, water pollution, federalism, constitutional law, Clean Air Act, air pollution

JEL Classification: K32