'The Friendship of the People': Citizen Participation in Environmental Enforcement

Abstract

There is a tension between citizen participation in environmental enforcement and an agency's discretion to choose the optimal balance between deterrence and cooperative approaches to enforcement. Citizen participation can reduce the costs of monitoring violations and their impacts and can pick up some of the burden of prosecuting violators. Cooperative enforcement can also reduce monitoring costs by encouraging regulated entities to provide information on their regulatory performance and can decrease those entities costs of compliance, as well focusing compliance on violations that cause net harm to the society. Cooperative enforcement, however, itself must be monitored to make sure that the agency does not abuse the discretion granted to it under this approach. At some level, however, citizen participation threatens effective use of cooperative enforcement. Although citizen participation provides a mechanism for controlling agency abuse under the cooperative enforcement model, such participation also scares regulated entities by empowering them to take unreasonable stands, and hence discourages companies from self reporting violations and acting candidly about what it will take to bring their plants into regulatory compliance. This article suggests three approaches to alleviate this tension and thereby capture the benefits of both citizen participation and a balanced model of enforcement. The article shows that although each of these three approaches - tripartism, corporatism and deliberative participation - holds some promise, each also raises significant concerns that prevent it from becoming the principal means of implementing participation in regulatory enforcement.