Federal laws like the Clean Water Act helped end practices of pouring toxic wastewater into rivers, as this paper plant was doing near International Falls, Minnesota, in 1937.

(CDC)

At a Glance

Companies caught violating the Clean Water Act pay significantly different fines in different states.The law, which is a federal, nationwide water pollution law, it is not being enforced uniformly across the country.

This story originally appeared in the Morning Brief email newsletter. Sign up hereto get more stories like this and weekday weather updates from The Weather Channel and our meteorologists.

A published in the Stanford Environmental Law Journal shows a significant discrepancy in the fines companies caught violating the federal Clean Water Act are ordered to pay in different states. I talked to one of the study’s authors, Jerry Anderson, about his findings. Anderson is Dean of the Drake University Law School.

You and your colleagues recently authored a study about the wide difference in fines for breaking pollution laws in various states. Can you give us an overview of what inspired you to undertake this study, and how long it took/ what it entailed to complete the research?

As an environmental lawyer, I have witnessed how the enormous discretion given to agency officials can result in vastly different penalties in pollution cases. When the Environmental Protection Agency (EPA) began giving the public access to its database of enforcement outcomes, I saw an opportunity to examine the issue of penalty disparity on more broadly. My research team selected a particular type of penalty for our study – violations of Clean Water Act permits – and examined 10 years of penalty data. We were able then to filter that data by whether the state or federal government (EPA) issued the penalty and compare the median penalties of different states and EPA regional offices.

What did your study find?

The difference in median penalties between states is incredibly large. At the bottom end, you have states like Montana, where a violation of a permit typically garners a penalty of $300, whereas in Colorado, the median penalty is 100 times larger — $30,000. We acknowledge that circumstances differ in individual cases, but over a decade you would expect the median penalty for Clean Water Act violations to be fairly similar between states.

We also found a huge difference between enforcement actions by the Environmental Protection Agency versus enforcement by a state agency. The median state penalty is $4,000, while the median federal penalty is almost $30,000. Even between EPA regions, there are significant differences. If you’re in Texas, the EPA office typically hands out $10,000 Clean Water Act penalties, but if you’re in California, the median penalty for that regional office is over $68,000.

So, even though this is supposedly a federal, nationwide water pollution law, it is not being enforced uniformly across the country.

What are some of the reasons for these differences?

We think the main reason for these differences is that EPA delegates a lot of enforcement authority to state environmental agencies, but does not require them to issue robust penalties. EPA has not updated its requirements for state enforcement authority since the early 1980s. The state agencies operate under their own state penalty statutes, which vary wildly in terms of penalty amounts.

EPA’s own statutory penalty authority gets adjusted upward every year to account for inflation, but the vast majority of state penalties do not get similar adjustments. So the gap between state and federal authority gets larger every year.

You write that these disparities may violate the U.S. constitution. Can you explain why?

In general, the Constitutional due process and equal protection clauses are about fundamental fairness and equal treatment. Given this is a federal law, similar violators should not be treated significantly differently merely because they live in a different state. The Constitution also prohibits “excessive fines,” which the U.S. Supreme Court has interpreted to require relative uniformity between similar cases.

How could these disparities be changed? Do you see any next steps here?

EPA could update its decades-old regulation governing state environmental enforcement, to require more robust state penalty statutes, and require that the amounts be annually adjusted for inflation. If a state does not issue adequate penalties, EPA has the authority to enforce the Clean Water Act itself, and it should do that more often. EPA could issue more detailed guidance on the proper penalties for certain types of violations, much like sentencing guidelines in the criminal law area. I also think that, in an individual case, an unusually high penalty could be challenged as a constitutional violation, so we could get some additional court guidance on this issue.

The Weather Company’s primary journalistic mission is to report on breaking weather news, the environment and the importance of science to our lives. This story does not necessarily represent the position of our parent company, .