ABSTRACT
Enforcement discretion is an established legal practice and is the prerogative of the prosecutor. Close legal as well as technical consideration must be given to the potential implications of variability of laboratory analysis used for compliance and improvement purposes, especially as compliance limits approach the detection limit or drop it. Strict liability in environmental law is appropriate, but not without its sibling legal concept —due process. Congress foresaw the potential for such confrontations of authority and dealt with it by creating a checks-and-balances allocation of authorities. The attempt to impose guidance with the authority of rule, in this instance, is inappropriate and procedurally improper. Former Environmental Protection Agency Administrator Thomas's third Management Theme also endorsed "environmental federalism," and a significant body of case law validates the preemptive authority of the states. Enforcement discretion is an established legal practice and is the prerogative of the prosecutor.
