Restorative Justice to Supplement Deterrence-Based Punishment: An Empirical Study and Theoretical Reconceptualization of the EPA's Power Plant Enforcement Initiative, 2000-2011

From the late 1970s to the end of the 1990s, electricity producers modified and operated coal-fired power plants in violation of the Environment Protection Agency’s (EPA) permitting requirements, creating widespread air quality degradation. The EPA’s policy of lax oversight ended in 1999 when it launched a large, coordinated enforcement effort. The 2012 Republican presidential candidates all denounced this more vigilant EPA as engaging in economic terrorism through “sue and settle” tactics that amount to backdoor regulation. This article evaluates federal environmental enforcement, drawing upon objective data from our empirical study of EPA permitting violation settlements for coal-fired power plants entered into between January 1, 2000, and December 31, 2011.

The data reveals that the EPA’s enforcement policy reflects a unique jurisprudence that creatively combines both deterrence-based punishment through appropriately levied civil penalties and restorative justice principles in the form of mitigation projects and mandatory injunctions. Other regulatory agencies should consider adopting restorative justice insights in designing remedies for diffuse civil wrongs such as securities fraud, consumer product safety, and unfair or deceptive trade practices.