SJ Quinney College of Law, University of Utah


In recent years, government agencies have increasingly relied on voluntary programs to achieve a variety of goals, from improving worker safety to creating healthier living conditions in urban areas. This type of government initiative is based on a bargain between the agency and private citizens: the government provides certain incentives—economic or otherwise—and private actors voluntarily adopt behaviors that benefit the public. One example is cleaning up a contaminated site and building an affordable housing project.

While agencies have made substantial progress since the creation of the first voluntary programs, much work remains. To move forward in this area, and especially with voluntary environmental programs, two critical questions must be answered: First, how should we evaluate the performance of voluntary environmental programs? And second, how do wedetermine the appropriate level of government—federal, state, or local—that should be in charge of implementing them? These two questions have not been satisfactorily addressed to date.

This Article addresses these lingering questions by evaluating the performance of a sophisticated local voluntary cleanup program. The resulting analysis uncovers some of the shortcomings in how agencies and scholars have previously assessed voluntary programs, yielding four contributions to the literature. First, the Article offers a deeper understanding of how data can and should affect the design and improvement of regulatory programs. Second, the examination of a local voluntary cleanup program provides much-needed empirical support for a common argument raised in the environmental federalism literature: that the need to tailor programs to local conditions can justify a strong municipal role. The need for a strong local government is especially important where state legislation creates what this Article refers to as “local regulatory gaps.” Third, while efficiency is a desirable feature of any government initiative, it becomes a necessity in the context of voluntary programs. Delays and other inefficiencies in the operation of avoluntary program can deter potential enrollees from participating in it. Without enrollees, voluntary cleanup programs simply cannot operate. Lastly, injecting unnecessary complexity into the design of voluntary programs by trying to address too many policy challenges at once can be counterproductive.