Cody McBride has published “Making Pollution Inefficient Through Empowerment” in the Ecological Law Quarterly.

The abstract:

At its crux, environmental law is about forcing potential polluters to act in ways they would not otherwise. To do this, environmental law attempts to make noncompliance more costly than compliance. Without doing so, potential polluters would pollute regardless of its legality, a theory known as efficient breach of public law. Academics and judges alike have increasingly accepted this theory, resulting in courts struggling to prevent efficient breaches. But that has proven a difficult task. In Pakootas v. Teck Cominco Ltd., the Ninth Circuit sought to prevent efficient breach by barring citizen suits to enforce Environmental Protection Agency penalties, thereby concentrating enforcement power in the Environmental Protection Agency. This Note argues, however, that the Ninth Circuit ruling will generally make efficient breach more likely, even if it ensured compliance in Pakootas v. Teck Cominco Ltd. The Environmental Protection Agency has repeatedly failed to protect the environment due to lack of oversight, a lack of resources, or a lack of desire. Citizen suits are powerful tools to counteract the Environmental Protection Agency’s failure and should not be uniformly discarded. Contrary to the Ninth Circuit’s rule, I argue for a case-by-case approach to determine whether a citizen suit for Environmental Protection Agency penalties would increase or decrease the likelihood of compliance in each particular case. Even beyond the realm of citizen suits, environmental protection powers should be broadly shared among potential enforcers, including the Environmental Protection Agency, citizens, states, and Native American tribes, so that the probability of paying for pollution and the cost of noncompliance both rise.