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New Report Examines the Federal-State Dynamic of Environmental Law and Policy

October 2018

(Washington, D.C.): While many environmental law and policy experts support giving states with demonstrated capabilities greater independence and flexibility in running delegated environmental protection programs, important concerns remain about what proposed reforms might portend, according to a new release by the Environmental Law Institute, The Macbeth Report: Cooperative Federalism in the Modern Era. Even enthusiasts for greater state primacy in implementing environmental programs consistently agree that the U.S. Environmental Protection Agency (EPA) must continue its leading role in developing national standards, conducting scientific research, and governing on issues involving national and interstate interests.

The report stems from “The Macbeth Dialogues,” an initiative undertaken in honor and memory of the late Angus C. Macbeth, one of the great leaders and thinkers in environmental law. The Macbeth Dialogues brought together leading experts to discuss the state-federal relationship in the environmental sphere as it exists today, in hopes of providing insight as to the direction that should be taken going forward.

“The Macbeth Report shines a light on law and policy solutions for optimizing the configuration of governmental roles going forward at a time when there is consideration of a dramatic reframing of the role of the federal government in the environmental arena,” says ELI President Scott Fulton. “This timely and needed analysis resulted from a combination of closed-door convening of top state, corporate, NGO, and government officials, several public forums, and input from a survey of our members and other leading thinkers.”

Many changes over recent years, including changes in states’ capacity, technological capabilities, and business behavior and expectations, have brought the United States to a point where our environmental system may be ready for some fundamental realignments. Amid such changes, the results of The Macbeth Dialogues underscore the overarching conclusion that all parties will have to earn each other’s trust if we are to adopt realignments that can move us beyond the conflicts that characterize today’s system.

Among its findings, the report reveals strong support for an EPA leadership role in environmental science and technology as well as in interstate matters, and strong support for flexibility for states in meeting minimum national standards and setting more stringent standards as well as in enforcing delegated programs. Experts were more evenly split on state discretion to depart from national technology standards and compliance strategies as well as on federal primacy for criminal enforcement and civil rights cases. But over 70 percent of participants felt that the federal government should generally defer where states can do a better, or as good, a job, while over 50 percent of respondents, with another 10 percent undecided, felt that EPA intervention in delegated states should be limited to circumstances where failure has been documented or inadequate resources have been provided by the state.

The Macbeth Dialogues also explored whether a parallel flexibility in government oversight of private companies with verifiably effective environ­mental management systems is worth considering. Additionally, the report considered the expanding role of citizens who are gaining access to unprecedented amounts of environmental information and operating in a socially networked world, contributing to a changing environmental system in which new approaches to both public- and private-sector environmental performance are emerging. Indeed, so massive are the coming data flows that government needs to prepare for, and be calibrated to, an era of involuntary data overload.

The Macbeth Report discusses areas of potential consensus and offers recommendation in seven areas, including enforcement, in hopes of advancing the dialogue on the future of cooperative federalism in the environmental arena.

To download the report, visit: https://www.eli.org/MacbethReport.