Its been said that actions speak much louder than words. In the case of our national protector of the environment, the EPA, the words we have heard for the last decade have suggested a kinder and gentler agency. One that would respond to science, reason and pragmatism, rather than raw emotion. For the past decade, the EPA's words have pointed to an agency that was humane and problem solving oriented.

Now for the actions. Several days ago, the EPA announced in a press release that 1999 was a banner enforcement year. The released statistics demonstrate that notwithstanding the kinder/gentler jargon, the EPA is very actively fining, penalizing and suing in record numbers, and it is darn proud of its achievements.

According to the EPA, the agency assessed $166.7 million dollars in civil penalties, a 60 percent increase from 1998. It has also collected 80% more that it did in 1998 in cleanup and compliance fees.

And EPA has been spending a lot of time in court, suing businesses, individuals and other governments. It entered into almost 4,000 civil judicial and administrative actions, in 1999 --- a three year record. Criminal defendants were sentenced to a record 208 collective years of jail time.

The EPA has never been busier in pursuing its enforcement crusade. The agency's gloss on all of this is that it is doing its job. It is suing and fining a lot of people. Big numbers make for big headlines, and clearly the agency is getting headlines.

Many who read this probably think that this is good news. But, unless you were a businessman or municipality that had to deal with a super charged zealous EPA in the 1970s and 1980s, unless you were forced to hire lawyers and consultants to perform what often seemed to be unrealistic cleanups, in many cases for seemingly endless periods of time, you cannot understand how potentially threatening this "great news" might actually be.

Formal environmental protection started in this country more or less 30 years ago. When the EPA was first created, its method of obtaining compliance was called the "command and control" method. It was a method that made headlines: big, big penalties, lots of havoc creating lawsuits, and an attitude by the government that either the regulated community do exactly as told, or the government would set out to make the "wrongdoer's life absolutely miserable.

This super aggressiveness was suppose to have been tempered in the last decade. A new trend had started to emerge which focussed on compliance and cooperation rather than huge penalty assessments. This newly found niceness was referred to as the "Netherlands Approach" to environmental regulation. Several years ago, that's what everyone in this business was talking about, the" Netherlands Approach." This referred to a European model of environmental regulation, which emphasized a "partnership" between the government and the regulated community, and de-emphasized penalties and enforcement actions.

It is against this backdrop that we now view the latest large EPA numbers. After a few years of cooperative thinking, we now must wonder whether we are reverting back to the bad old days. Command and control all over again. So many innocent but crippled people prayed that those days were gone forever. Now, we all ponder whether all we ever had was a brief reprieve.

Certainly, we hear little about the Netherlands Approach now-a-days. I had hoped that the terms was simply no longer in vogue, but the cooperative thinking that it embraced was still present.

What we can't tell from the statistics is this: are there really more polluters today than there were ten years ago? If so, then let the penalties flow. Or, are we reverting back to the 1980s, when no violation was perceived by the EPA as being too little, and when so many really innocent people were bankrupted and emotionally strangled because they were simply in the wrong place, in the wrong decade?

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Published: January 27, 2000

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Stuart Lieberman, Esq. writes about environmental issues. He was a New Jersey Deputy Attorney General assigned to the State Department of Environmental Protection from 1986 to 1990. Currently he is a shareholder in the environmental law firm of Lieberman & Blecher, P.C., located in Princeton, New Jersey. Stuart can be reached at slieberman@liebermanblecher.com.