The Federal Enforcement Threat: The Effect of Overfiling Under the Resource Conservation and Recovery Act

Abstract

States and the federal government typically share responsibility for environmental enforcement, with many states acquiring primary authority to enforce federal law. Under most federal environmental statutes, the U.S. Environmental Protection Agency (EPA) retains the right to “overfile,” or file its own enforcement action against a violator in addition to a state enforcement action. This article empirically tests the effect of EPA's ability to overfile on the state's enforcement strategy in the context of the Resource Conservation and Recovery Act (RCRA). In Harmon Industries v. Browner, 191 F.3d 894 (8th Cir., 1999 the Harmon decision), the Court of Appeals for the Eighth Circuit held that the EPA does not have the authority to overfile under RCRA. Other circuits, particularly the 10th Circuit, have disagreed with the Eighth Circuit's conclusion, holding that the EPA retains such authority, and the Supreme Court has never resolved this issue. This article predicts that states within the Eighth Circuit with preferences for lower environmental enforcement would impose more lenient penalties after the Harmon decision, and it tests this prediction using several proxies for state environmental enforcement preferences. I find that states in the Eighth Circuit with Republican governors were more likely to lower the final penalty amount from the proposed penalty amount after the Harmon decision. In other estimations, I also find that states in the Eighth Circuit with Republican governors collected less, on average, in final penalty amount per enforcement action after the Harmon decision. Other proxies for lower enforcement preferences, however, were not associated with consistent statistically significant effects. Because the governor arguably has the strongest influence on state enforcement policy, the results provide some support for the model's preference‐based predictions. Overall, the results suggest that the existence of a specific and relatively infrequent type of federal enforcement action—EPA's ability to overfile—could have a substantial effect on overall environmental enforcement through its ability to affect the enforcement efforts of certain states. These findings shed light on how federal enforcement efforts might matter in the context of cooperative federalism.