According to basic economic theory, regulated entities will comply with the environmental laws when the expected benefits of doing so (most prominently, avoiding penalties) outweigh the expected costs of compliance. Theoretically, economists say, there is an optimum level of enforcement where expected sanctions equal expected harm, taking into account the probability that violations will be detected.

Yet the actual level of enforcement of the environmental laws is never optimal, even at the best of times. Enforcement agencies such as the United States Environmental Protection Agency (EPA) and its state counterparts like the Wisconsin Department of Natural Resources (DNR) have imperfect information about ongoing violations. They are not omniscient. And even if they had perfect information, there are often many more potential enforcement targets than can be pursued with limited agency resources. Enforcement, of course, is part of a broad mix of agency responsibilities that also includes rulemaking, standard setting, monitoring, and many other activities. Finally, political leaders may appoint agency heads who drive the pursuit of more or less than the optimal enforcement level.

Enter the pandemic. It adds a new layer of complexity, to understate the matter, in that enforcement agencies must take several new and highly important factors into account, such as the safety of agency personnel and the economic damage some regulated entities are experiencing. Staff who might normally be inspecting permitted facilities or investigating reported violations may be sick, quarantined, or at the very least, working from home. These factors have led some agencies to relax enforcement activities, as discussed in more detail below. Even if they are presumed to be well-meaning, such policies may worsen the situation in communities already disadvantaged by pollution levels that seriously impact public health. In turn, this may expose those communities to additional risks during or following the pandemic.

Earlier this week the Notre Dame Journal on Emerging Technologies published Overcoming Legal and Institutional Barriers to the Implementation of Innovative Environmental Technologies, a paper I co-authored with Dr. Walter McDonald of the Department of Civil, Construction and Environmental Engineering (CCEE) in Marquette’s College of Engineering; Joe Naughton, a 2020 Sea Grant Knauss Fellow at the National Oceanic and Atmospheric Administration; and Hannah Hathaway, a member of the Law School’s Class of 2020. Another faculty colleague, Dr. Tony Parolari of the CCEE department, participated in the underlying research grant that resulted in the paper. This kind of work is part of our core mission: the Marquette University Water Law and Policy Initiative seeks, among other things, to employ an interdisciplinary approach, and to pursue opportunities for information exchange and collaboration within and outside Marquette University.

The following excerpt describes the work. The full article is freely available at the above link.

Communities in the United States face growing challenges to effective stormwater management as a result of aging infrastructure, increasing urbanization, changing climate, and shrinking budgets, among other factors.  These changes have increasingly stressed existing “static” stormwater management systems such as pipe networks, retention ponds, and detention ponds, that are intended simply to convey storm flows to nearby receiving waters without regard to overall system conditions.

Dealing with these stressors may require innovative solutions such as real time control (RTC) or “dynamic” stormwater management systems. 

Without doubt, times are tough. The seemingly inexorable spread of the COVID-19 pandemic has left many of us desperate for good news. And make no mistake, there is some out there. First, it’s heartening to see the increased appreciation for those in the public health sector, and also for the unsung heroes of the war against COVID-19: grocery store personnel, garbage collectors, truckers, janitors, pharmacy clerks, postal workers, package deliverers, and others who we now realize are truly essential to a functioning modern society. Let me add one more group of people to that list: utility workers who keep our power on, our access to the internet active, and our clean water flowing. For example, to ensure a reliable water supply, some water treatment professionals are “sheltering in place” at a water treatment facility for the next three weeks. Others, right here in Wisconsin, are working twelve hour shifts in complete isolation to ensure that critical machinery remains operational.

That leads me to my second bit of good news: according to the Environmental Protection Agency (EPA) and the Centers for Disease Control (CDC), our water supply is not threatened by COVID-19. Like most viruses, it is “particularly susceptible to disinfection,” a standard process at wastewater treatment plants. It seems appropriate to be grateful for this, given that Sunday was World Water Day. Imagine how terrible this crisis would become if we could not trust our drinking water.