Study: Governments More Likely to Break Environmental Law Than Private Firms

People kayaking in the Animas River near Durango, Colo., last Thursday, in water colored f
Jerry Mcbride/The Durango Herald, via AP

Two professors of public policy conclude that governments are more likely to violate environmental regulations than private owners. “Publicly-owned facilities are more likely than similar privately-owned facilities to violate regulatory requirements under the CAA [Clean Air Act] and the SDWA [Safe Drinking Water Act],” as their recent study notes.

The study, based on the behavior of publicly and privately owned power plants, hospitals, and municipal water utilities, “also revealed a tendency for enforcement officials to impose less severe punishment on public agencies violating the CAA and SDWA, when compared to similarly noncompliant private firms.”

“[C]ompared with private firms, governments violate these laws significantly more frequently and are less likely to be penalized for violations,” the study, “When Governments Regulate Governments,” (published recently in the American Journal of Political Science) concluded.

“The study confirms many observations over the years that government agencies in general are often careless about obeying the law and following the government’s own regulations,” Myron Ebell, Director of the Competitive Enterprise Institute’s Center for Energy and Environment, tells Breitbart News.

The authors of the study, Associate Professor David Konisky of Indiana University and Associate Professor Manuel P. Teodoro of Texas A & M, offered this explanation for the behavior of these government scofflaws:

[G]overnment agencies and private firms often face different compliance costs, and … agencies have greater incentives than firms to appeal regulations through political channels. Simultaneously, the typical enforcement instruments that regulators use to influence firm behavior may be less effective against governments.

The authors ascribe the bad governmental behavior to different incentives, as opposed to the inherent human tendency to abuse unconstrained power.

“Government agencies and private firms confront different incentives and constraints in the regulatory arena. Unlike profit-maximizing firms, government agencies face contested, ambiguous missions and are politically constrained from raising revenue to meet regulatory requirements,” they argue.

As a result, “government agencies have greater incentives than profit-maximizing firms to shirk regulation and/or seek regulatory relief through political channels.”

The authors do acknowledge, however, that monopoly power grants government agencies significant benefits.

“At the same time, agencies do not face direct competition from other firms, rarely face elimination, and may have sympathetic political allies,” they write.

“Consequently,” they continue, “the regulator’s usual array of enforcement instruments (e.g., fines, fees, and licensure) may be potent enough to alter behavior when the target is a private firm, but less effective when the regulated entity is a government agency.”

Mark Fitzgibbons and Richard Viguerie, co-authors of The Law That Governs Government, in which they describe government as America’s biggest lawbreaker, however, have an alternative explanation. Government entities violate laws for a number of reasons, including the fact that, unlike in the private sector, government officials lack personal liability, and courts give government too much deference.

Fitzgibbons agrees with the study’s conclusion that “government agencies have greater incentives than profit-maximizing firms to shirk regulation,” but doesn’t necessarily agree that they have “greater incentives…[to] seek regulatory relief through political channels.”

As Fitzgibbons sees it, this phenomenon is not limited to publicly owned utilities and hospitals—it also applies to government at every level, including bureaucrats at the state and local, but especially the federal level.

“Bureaucrats frequently violate the Constitution, which is law over government, and even the very laws they enforce. The authors of this study should have measured the level of accountability bureaucrats believe they have towards the law in general,” Fitzgibbons tells Breitbart News. (emphasis added)

“Mr. Fitzgibbon’s comment is not particularly pertinent to our study,” Professor Teodoro tells Breitbart News.

“Of course bureaucrats’ perceived accountability varies; there are thousands of public agencies in the U.S., and the degree of bureaucratic accountability is probably different in every single one. Analysis of those differences and their effects on policy outcomes might be interesting, but not relevant to the phenomenon that Konisky and I are studying,” Teodoro adds.

“Our purpose in ‘When Governments Regulate Governments’ was to evaluate the incentives for regulatory compliance faced by managers of public agencies and private firms, as well as the incentives and constraints that government regulators face when seeking to enforce the law. So the relevant comparison in our study is public vs. private managers, not public manager A vs. public manager B and their relative beliefs in accountability, as Mr. Fitzgibbon’s comments would suggest,” Teodoro concludes.

Teodoro and his co-author Konisky could have, however, sought to compare the relative beliefs in accountability to the rule of law between public managers and private managers.

Based on the very behavior documented by Teodoro and Konisky in their study, limited-government conservatives have good reason to believe such a study would show a dramatic difference between the two groups, with public managers believing they are far less accountable—if at all, in some cases—to the rule of law.

Some of that disregard for the rule of law may be the result of what bureaucrats have learned over the years from their dealings with government regulators.

“In addition to the reasons noted in the study, it is also the case that government employees have learned that government regulators go a lot easier on them than they do on people in the private sector,” says the Competitive Enterprise Institute’s Ebell.

“The EPA and the Department of the Interior are two good examples,” Ebell adds.

In his previous work Teodoro acknowledged that psychological motives drive the behavior of bureaucrats. That’s largely a good thing in his view, apparently, as his website at Texas A & M explains:

His award-winning book, Bureaucratic Ambition (2011, Johns Hopkins University Press), argues that ambition–psychological motives manifested in a career opportunity structure–shapes administrators’ decisions to innovate and to engage in politics, with important consequences for innovation in government and democratic governance.

Though recent studies, including this one released in 2012 at UCLA, have concluded that very few college professors describe themselves as conservatives, Teodoro rejects the notion that the study may have been influenced by the predominant left-leaning ideology of academia.

“It would not be fair to describe me as ‘left-leaning’ (or ‘right-leaning’ for that matter). Certainly our study is not ideologically-motivated,” Teodoro tells Breitbart News.

Co-author Konisky appears to be a fan of Hillary Clinton, at least as it relates to climate change and environmental policy, as he wrote at The Conversation in July:

Climate activist Tom Steyer praised the plan, while activist Bill McKibben expressed disappointment that Clinton did not come out in opposition to the Keystone XL pipeline.

And, while the Clinton campaign has played up the boldness of the plan, some analysts have questioned its ambition.

For example writing for Slate, meteorologist and writer Eric Holthaus concludes that Clinton’s commitments fall considerably short of the clean energy plans of her Democratic primary opponents, Bernie Sanders and Martin O’Malley.

Environmental activists may be divided, but Clinton’s policy goals are likely to strongly resonate with citizens and voters.

Konisky is the co-author of Cheap and Clean: How Americans Think About Energy in the Age of Global Warming, and editor of Failed Promises: Evaluating the Federal Government’s Response to Environmental Justice.

Breitbart News contacted Professor Konisky for comment, but did not receive a response prior to the publication of this article.


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