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We Need a Smart, Agile and Innovative Environmental Police Force

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As the global economy becomes more complex and interconnected, the government that we rely on to protect our security, health and safety finds itself in a losing battle to understand what it is regulating. We saw this in the BP Gulf Oil spill of 2010. The Minerals Management Service of the Department of Interior was completely captured by the oil industry and allowed BP to self regulate. While most oil companies did not put their people and the environment at risk, BP took advantage of the absence of government oversight and the result was catastrophic.

The federal government's response to the Gulf disaster has been to reorganize the Department of Interior's oil drilling regulatory units. After the spill, Interior Secretary Ken Salazar split the Minerals Management Service into three separate branches in order to eliminate the conflict of interest implicit in the combination of regulation of oil drilling and revenue generation from leasing drilling sites. Salazar divided the agency into the Bureau of Ocean Energy Management which would develop energy resources, the Bureau of Safety and Environmental Enforcement to police offshore operations and protect the environment, and the Office of Natural Resources Revenue to manage the leasing process. Why have one ineffectual regulatory unit when you could have three? The Department of Interior's reward for the mismanaging the regulation of deep sea oil drilling is to inevitably add staff and contractors in an effort to do a better job in the future.

Since I agree with the idea of tightening the regulation of deep sea drilling, I applaud the impulse and desire for change, but I remain skeptical that somewhere within this huge (70,000 staff) department, we can create a fast moving, flexible but rigorous environmental police force. The unfortunate tendency in the federal government is for agencies to get bigger and move in one of two directions: (1) Abdication of responsibility through agency capture by industry as we saw in the Minerals Management Service, or (2) Huge, rule laden and inflexible bureaucracy. While government at the local level has the discipline of real work and public visibility when they manage our transportation, parks, schools, and environment; the federal government and its staff seem several steps removed from the reality of the rules they promulgate and the regulations they enforce. Here in New York the Mayor and his team got raked over the coals for inadequate snow removal in late December, but within a few weeks demonstrated dramatic improvement during the next storm. Accountability was visible and the response was almost immediate.

The federal government in Washington D.C. performs a critical role in helping us govern this complex society of over 300 million people, but much of their work is invisible and I suspect more than a little wasteful. This is not limited to the Department of the Interior. Even the much smaller Environmental Protection Agency shows signs of hardening of its bureaucratic arteries in only its fortieth year. For example, EPA recognizes that nonpoint or diffuse sources of water pollution are our largest remaining water problem and the fundamental reason that 40 percent of our rivers, lakes, and estuaries are not fishable or swimmable. Nonpoint sources are difficult to regulate and require the type of large scale behavioral change that EPA typically has not been able to accomplish. Runoff from our major highways can be collected and treated, but secondary roads often lack adequate drainage systems to be effective. Even worse, EPA's regulatory structure and standard procedures focus on easier-to-monitor regulation of point sources through requirements to install "grey infrastructure" such as sewage treatment plants. The current rules are biased against potentially more cost effective pollution control through "green infrastructure" that reduces nonpoint sources of pollution.

Westchester County New York provides a case in point. The county was mandated by the state and federal governments to upgrade their sewer treatment plants to reduce pollutant discharges into Long Island Sound. As a lower cost alternative, the county proposed an imaginative series of ecosystem restorations to reduce nonpoint discharges to the same body of water. The "green infrastructure" investment was lower cost and produced more pollution reduction but was rejected by the state and federal government. They considered the impact of the ecosystem restoration project to be too uncertain and difficult to measure.

I am in no way arguing against regulation. Individual and corporate behavior that poisons our environment must be policed and violators of the law must be found and punished. But we need to do this in a way that is effective and allows us to reduce pollution intelligently. I recognize that government needs staff and other resources to regulate effectively. But we need to figure out a way to create effective national rules that combine high standards, with creative implementation and enforcement.

Some environmentalists seem to promote the idea that the only way to prevent violations of environmental rules is to confront violators with the domestic equivalent of the Powell Doctrine in warfare: overwhelming force. I think that is a losing tactic. For one, the opponent is not a foreign army, but our own behavior and corporations. We have been most successful in reducing corporate pollution when we were smart enough to work with polluters to give them the ability to comply while still making money. We need national standards and credible threats against willful violators, but we also need to provide flexibility as long as it is coupled with progress. The problem is that this can sometimes reward recalcitrant corporations and punish those that live within the law.

We need to get past the symbolic battles of regulation and anti-regulation and resume working on regulatory effectiveness. We saw an effort at this in the 1990's when David Osborne published Reinventing Government, and Bill Clinton and Al Gore pushed for a leaner, more effective federal government. While some of these ideas have taken hold, the emphasis on cutbacks and privatization for its own sake has replaced the more difficult search for effective management. We continue to fight symbolic and ideological battles with no end in sight. Instead of thoughtful redesign of federal agencies, we have had a battle between ideologues of the left who seem to want to grow the government and ideologues of the right determined to shrink it.

The last time I looked, no one -- conservative or liberal -- wanted to poison their children. No one favors toxics in the land, air or water any more than anyone favors theft or murder. When the police in New York City adopted more high tech and sophisticated policing techniques and rigorous performance metrics, crime went down at a faster rate than it did in many other places. We need to apply that same approach to our efforts to manage and police environmental quality. We need a smart, agile and innovative environmental police force.

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