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“Accidents” and Institutional Failure The gradual demise of the regulatory system has left major manufacturing sectors adrift. Some operate without any meaningful regulatory oversight. Others are blanketed with detailed regulatory requirements but, on the rare occasions when inspectors show up to check compliance, enforcement actions are erratic and unpredictable and penalties are relatively low. These circumstances provide the owners and operators of plants and production sites with strong incentives to avoid substantial investments in upfront compliance costs, especially safety and pollution control equipment. Instead, they consciously take the risk of waiting to see if they will be caught. Admittedly, that outcome would be unpleasant, but it is also one that seems increasingly unlikely. Compounding the challenge of motivating compliance is the reality that the national political environment is dominated by angry allegations that overregulation is killing the nation’s economy. The spectacle of Obama administration political appointees appearing before disdainful House Republicans further suggests that companies may self-regulate as they see fit.

Thus criminal justice tells us where the moral boundaries are, where the line lies between good and bad. It patrols those boundary lines, day and night, rain or shine. It shows the rules directly, dramatically, visually through asserting and enforcing them. (There are lessons from non-enforcement, too: from situations where the boundaries are indistinct, or the patrol corrupt or asleep; and society is quick to learn these lessons, too.) Lawrence M. Friedman, Crime and Punishment in American History White Collar Neglect American law provides federal and state prosecutors with powerful authority to charge individuals and corporations with crimes and to win, but they rarely pursue such cases. This paradox is especially poignant with respect to criminality that kills or injures workers or consumers, or that causes irretrievable damage to natural resources. Prosecutors have largely turned a blind eye to such violations, depending instead on a broken regulatory system to deter illegal behavior. To be sure, some of the criminal statutes that apply to health and safety offenses treat them lightly: purveyors of tainted food or grossly negligent employers face misdemeanor charges providing for prison terms of a year or less. Rather than working to develop cases that overcome these weaknesses by, for example, charging multiple violations that add up to significant jail time, prosecutors have largely abandoned those fields. One conundrum running throughout the field of neglected criminal enforcement is whether to charge corporations or their employees. The decision is admittedly complex, but forgoing enforcement altogether should not be a third and favored option. As a matter of principle, corporations should be subject to prosecution when the violations were endemic to the corporate structure, as opposed to the brainchild of isolated, rogue employees. Individuals can and should be charged alongside their corporate employers, providing a different kind of deterrent to future malfeasance.

Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found in Article I, section 8. The Commerce Clause has the important deficit of focusing on commercial transactions between two entities now in existence, while next generation laws must focus on the preservation of natural resources for us by future generations not now in existence. Steinzor argues that the Supreme Court has long recognized a state “police power” to protect public health and preserve the general welfare outside the constricting context of commercial transactions. The Court could and should read an analogous federal police power into the General Welfare clause given global threats such as climate change. She locates her proposal in work on the concept of an affirmative constitution by Professor Robin West, among others.

In the last several years, dramatic failures of the nation’s food safety system have sickened or killed tens of thousands of Americans, and caused billions of dollars of damages for producers and distributors of everything from fresh vegetables to granola bars and hamburger meat. In each case, the outbreak of food-borne illness triggered what can only be described as a frantic scramble by health officials to discover its source. Inevitably, the wrong lead is followed or a recall is too late or too narrow to prevent further illnesses, and the government has to defend itself against withering criticism. Americans expect more from the experts at the Food and Drug Administration (FDA) and their counterparts at the Department of Agriculture, but the simple truth is that they are ill-equipped to deliver. The food safety system typifies the debilitated state of the entire regulatory system that Americans rely upon to protect their health, safety, and environment. The five “protector agencies” - FDA, the Occupational Safety and Health Administration (OSHA), the Consumer Product Safety Commission (CPSC), the National Highway Traffic Safety Administration (NHTSA), and the Environmental Protection Agency (EPA) - all grapple with hefty responsibilities to protect the American public from constantly evolving hazards.The agencies have done an adequate job of eliminating or managing the basic hazards of modern industrial society. Every new car has seatbelts and passive restraints, the use of lead in gasoline and residential paint has been eliminated, and air quality has improved in many areas. Unfortunately, this progress has been marred by a series of high-profile failures. OSHA has failed to prevent musculoskeletal injuries, the leading cause of workplace illness; billions of consumer products enter the country from foreign manufacturing sites that are never inspected by product safety specialists; and the EPA is just beginning to map out a strategy for combating climate change, a threat that could eliminate 40 percent of species and lead to the relocation of hundreds of millions of people by the turn of the century. The agencies’ inability to act swiftly and decisively in the last several decades is largely the result of four problems: Severe shortfalls in funding, outdated authorizing statutes, political interference, and an aging, demoralized civil service. Regulatory dysfunction begins with funding gaps that defeat agency efforts to fulfill the statutory mandates assigned by Congress. These shortfalls, which push the agencies into a state of constant default on their most important missions, are compounded by congressional neglect of its oversight and reauthorization responsibilities. With two exceptions - the Consumer Product Safety Commission Improvement Act and the FDA Amendments Act of 2007 - Congress has made no effort to renew and update the statutes in at least two decades. Compounding these problems, the protector agencies operate under the watchful eye of White House political staff who frequently and freely substitute their own judgments for those of agency staff, offering a back door for special interests disappointed in decisionmaking by agency experts to exert inappropriate influence, most often behind closed doors. The solutions to these problems - statutory amendments, an improved budget process, decentralized decisionmaking, and civil service reforms - are not simple fixes. But the alternative is a regulatory system that reverts to a purely reactionary mode, leaving public health, safety, and environmental protection to the whims of the marketplace.