By Jonathan Walters

The recent news that the Colorado Division of Wildlife won’t be fining the Coors Brewing Co. for killing thousands of fish when it dumped the equivalent of 2,500 barrels of beer into a local creek must be driving some environmentalists, excuse the bad pun, wild.

What better opportunity to make an example of a corporation than this: You have a company that bases its whole image on the crystal-clear streams that cascade out of the Rocky Mountains. It dumps a geometrically immense number of six-packs into — no kidding — Clear Creek, and in the process bumps off 50,422 (I wouldn’t want to be the ranger who had to do the counting) fish.

And so a company that makes its money allowing humans to get regularly polluted, but that bases its image on a pristine environment, is in line to get busted for a serious case of fatally intoxicating a big pile of fish. In fact, the company could have been subject to fines adding up to as much as $1.75 million.

But the state decided on a different approach. It has decided to work with Coors on improving the quality of the creek overall, instead of simply hitting the company with a huge fine. This focus on achieving environmental outcomes that exceed those that would arise simply by assuring strict compliance with the law is part of a more strategic approach to environmental protection slowly catching on nationwide. The question is, did the state, through its negotiations, secure a deal that delivers more environmental bang that it would have gotten from the penalty buck alone?

In a first-rate and soon-to-be-published book chapter on how to use performance measures to improve environmental protection, Shelley H. Metzenbaum, former head of regional operations and state and local relations for the U.S. Environmental Protection Agency, describes how EPA has altered its approach to cleaning up Boston’s celebrated (and famously filthy) Charles River. Cleanup has actually moved forward more rapidly, argues Metzenbaum, because the EPA has used fines — and the threat of them — to negotiate environmental improvements beyond compliance levels, instead of just hitting businesses with penalties and walking away.

The enforcement stick should never be set down, says Metzenbaum — and blatant polluters should, as a matter of course, be penalized — but simply taking polluters’ money and then making them meet the letter of the law misses opportunities to improve environmental quality. Environmental regulators need to be smarter about negotiating deals that clearly accrue to the benefit of the environment.

How the arrangement in Colorado works out will be well worth watching. If it turns out that a politically well connected corporation has simply sidestepped a whopping fine, then it’s poor environmental policy, indeed. But if the company and the state actually come up with a joint plan to clean up what was already a very polluted stream, and that progress is measured, monitored and reported to the public by a credible third party, then that represents real environmental progress.

Jonathan Walters is a staff correspondent for Governing.

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