October 18, 2017

The 2017 ELI-Miriam Hamilton Keare Policy Forum

Since its establishment 46 years ago, the US EPA has had overarching enforcement responsibility for most of the nation’s federal environmental laws. But over the decades, states have developed the expertise and capacity for ensuring environmental protection. With the Trump Administration’s proposed downsizing of EPA budget and staffing and renewed focus on states, decision-makers and stakeholders have a timely opportunity to rethink the paradigm of cooperative federalism and environmental protection in the US.

For decades, EPA has played the role of the “gorilla in the closet,” the looming threat of federal enforcement if regulated entities did not cooperate with state enforcement efforts.  But if less federal enforcement is on the horizon, how can environmental compliance be assured? In considering this question, The Environmental Council of States (ECOS) has proposed that a periodic audit system take the place of federal intervention in delegated states.  How would an audit system of this kind work in practice, and what are the implications of this kind of change?

Meanwhile, environmental data is being generated at an exponential rate, and other actors, namely local governments and international governing regimes, are increasingly asserting their roles in environmental governance. How will information technology and interconnectivity change environmental enforcement and accountability? How can governments, advocates, and businesses evaluate this information and use it to ensure compliance? What do forces outside the federalism dichotomy mean for the future of environmental governance in a global economy and society unconstrained by state or national borders?

ELI’s expert panel discussed the opportunities and challenges of a new take on cooperative federalism for environmental governance. The conversation considered trends in politics, economics, technology, and other factors influencing environmental protection. Experts participated in a moderated discussion and fielded questions from the audience.

Stan Meiburg,
Director of Graduate Programs in Sustainability, Wake Forest University (Moderator)
Barry E. Hill, Visiting Scholar, Environmental Law Institute, and formerly Senior Counsel for Environmental Governance of the Office of International and Tribal Affairs at EPA
Neal Kemkar, Director of Environmental Policy, General Electric
Becky Keogh, Director, Arkansas Department of Environmental Quality
Bob Martineau, Commissioner, Tennessee Department of Environment and Conservation
Vickie Patton, General Counsel, Environmental Defense Fund

Materials of Interest:
ECOS Cooperative Federalism 2.0
Collaborative Federalism (The Environmental Forum, May/June 2016)
View the 2014 ELI-Keare Forum: The Role of State Leadership in Cooperative Federalism

October 18, 2017

ELI 2017 Corporate Forum

Since the 1970s, government and industry have evolved significantly, but has the environmental regulatory system kept pace? With real-time diagnostics, cutting edge compliance management systems, and an underlying focus on sustainability as good economic practice in many industry sectors, compliance is increasingly self-policed and self-corrected. Increasingly, companies are regulating their supply chains in ways that drive environmental performance.

There is much discussion about “cooperative federalism” and the need to ensure that environmental program administration reflects the significant expertise and experience state environmental agencies now have after decades of administrating environmental protection laws. This is the subject of The Macbeth Dialogues, a cooperative effort of ELI,  the Environmental Council of States (ECOS), and the American College of Environmental Lawyers (ACOEL), undertaken in memory and honor of a pillar of the environmental law community, the late Angus Macbeth.

But what would changes to the cooperative federalism model mean for the business community?  How do corporations look at the tension between national consistency and local flexibility?  More fundamentally, with private governance systems increasingly finding and solving compliance problems without the intervening hand of government, how might the government role be re-envisioned in a way that aligns with, reflects, and harnesses this phenomenon?

Should environmental governance move away from a top-down, law enforcement model to an “environmental protection enterprise” in which the states and federal government, the private sector, and the public all play key roles?  These are among the questions that were considered at ELI’s 2017 Corporate Forum.

Alexandra Dapolito Dunn, Executive Director and General Counsel, Environmental Council of the States (ECOS)— Moderator
Richard DeSanti, Chief Environmental & Safety Counsel, Chevron Corporation
John Lovenburg, Vice President, Environmental, BNSF Railway
Todd Parfitt, Director, Wyoming Department of Environmental Quality
Janet Peace, Senior Vice President, Policy and Business Strategy, Center for Climate and Energy Solutions
Martha Rudolph, Director of Environmental Programs, Colorado Department of Public Health and Environment

Of Related Interest:
View a recording of the 2015 ELI Corporate Forum: Is Private Governance Changing the Practice of Corporate Environmental Law?
Exercising Responsibility for the Supply Chain and Human Rights, Ann Klee (The Environmental Forum, Jan/Feb 2016)
It All Starts With the Supply Chain, Ann Klee (The Environmental Forum, Sep/Oct 2014)