Preventing Emissions from Slipping Through the Cracks: How Collaboration on New Technologies to Detect Violations and Minimize Emissions Can Efficiently Enforce Existing Clean Air Act Regulations

Kathryn Caballero, Notre Dame Law School


The link between air pollution and poor public health is well known and has been further documented during the COVID-19 pandemic1, but EPA has outdated methods and rules to detect air emissions. Enforcing existing environmental regulations presents challenges because the detection and monitoring technologies identified in the regulations, or the regulation language itself may not sufficiently identify environmental pollution, let alone complex environmental fraud. How can EPA best use new technologies and concepts to detect violations, with the intent of minimizing emissions, to improve human health and environmental outcomes during the lengthy process of drafting and publishing new regulations? As EPA's expertise lies in the promulgation and enforcement of emission standards, not in developing software fixes or manufacturing technologies to detect or address violations, collaboration with other stakeholders is important to achieve overall emission reductions. This Article identifies the need for a collaborative approach with industry and public interest groups to explicitly adopt certain technologies and methods to detect violations, and it provides supporting case studies from recent mobile and stationary source air enforcement cases illustrating that improved detection leads to industry-developed technologies that minimize emissions. If regulated entities choose to use these technologies to monitor and maintain their own compliance with the Clean Air Act, overall emissions will decrease, with a likely increase in public health. This Article recommends that all stakeholders work together to propose new detection methods and remedial technologies that EPA may use to collect evidence for enforcement actions and to resolve noncompliance. These technologies may be incorporated into future regulations to improve transparency and fairness in the enforcement process, ultimately minimizing the likelihood of complex litigation that may delay remedial actions that address excessive emissions.