A New Era of Federal Engagement Begins With States and Localities
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue

The election marks a sea change for federal environmental law and policy — a shift bolstered by a Senate likely to be friendlier to the new administration’s agenda and appointments than many had anticipated.

At the level of states and localities, however, the election results turned the dial in a different direction. 2020 yielded an additional Republican governorship to further tip the balance to 27 to 23. Similarly, according to Ballotpedia, Republican majorities in state house chambers grew by two and now outnumber Democratic majorities 63 to 35 (Alaska is still undecided).

The situation is flipped at the municipal level. Democratic mayors are seated in most of the country’s largest cities — 64 out of 100 — with Republicans leading only 25 cities (the rest are independents or nonpartisans).

What does this variegated political landscape mean for cooperative federalism?

Beveridge and Diamond’s John Cruden, who was Obama’s environmental assistant attorney general, explains that environmental protection involves states and localities more than any other issue the Biden administration faces. Furthermore, White House priorities — climate change and environmental justice — have a particularly dramatic impact on subnational governments. This point is accentuated in “The Biden Plan for a Clean Energy Revolution and Environmental Justice,” which references “communities” well over 50 times. Cruden also emphasizes that several Biden appointees have held state-level positions and bring that “enormously valuable” perspective to their work.

It is not surprising, therefore, that many environmental leaders project that states and localities stand to benefit from the administration’s agenda. Ben Grumbles, secretary of the Maryland Department of Environment, anticipates “a federally driven and state-supported return to ‘national standards, neighborhood solutions,’ with a stronger environmental safety net, using improved technology, science, and enforcement.” Similarly, the Environmental Law & Policy Center’s Howard Lerner welcomes the “breath of fresh air for sound science-based clean air and safe clean water policies that can better support state and local agencies’ positive actions — and that’s where the rubber hits the road for better public health and environmental progress.”

And many appreciate the changing dynamics. The Center for Climate and Energy Solutions’ Bob Perciasepe explains that the states and cities that have been developing climate policies on their own “could not rely on any support from the federal government” over the last four years and often “found it working against them.” He now “expects a strong and necessary partnership for climate action to evolve.”

But the picture may not be rosy for all states. According to Bergeson and Campbell’s Lynn Bergeson, “states with progressive environmental law and policy agendas will find a friend in the White House and Senate, and states less forward thinking, the opposite.” She further notes “the unprecedented gusto” with which the new team is tackling climate and environmental justice and anticipates that “the administration can be expected to support state and local entities in achieving similar objectives and in challenging measures that undermine these goals.”

Yet at W.R. Grace & Company, Keith Cole predicts that while “polarization is likely to continue at the national level, it is possible some states will be more likely to reach out on a bipartisan basis to the administration to collaborate on specific regional projects such as Chesapeake Bay restoration.”

Consistent with the Biden plan’s promise of federal support for a range of subnational initiatives, including transportation and low-carbon manufacturing, Grumbles offers that “states and localities should expect an early boost in federal money and motivation for climate action, environmental justice, and enforcement using traditional and innovative tools and technologies.”

Cruden cautions, however, that funding levels may be influenced by the prior administration’s deep cuts in staff and resources. Furthermore, GOP-led states likely will challenge efforts to rescind Trump-era rules. As Cruden observes, these days virtually all environmental rules are litigated — “it’s just the players who change with each administration.”

It is also likely that states will continue to lead in the absence of federal action. Alexandra Dunn, an outgoing EPA assistant administrator who formerly led the Environmental Council of the States, notes that it will take a while to write federal regulations even on issues the new administration may prioritize, such as per- or polyfluoroalkyl substances. In some cases, she says states are “nimbler” and can act more quickly than the federal government.

It may be business as usual in some respects but expectations are high for a new era of invigorated cooperative federalism.

A New Era of Federal Engagement Begins With States and Localities.

Cooperative Federalism Maximizes Results
Donald S. Welsh - Environmental Council of the States
Environmental Council of the States
Current Issue
Parent Article
Donald Welsh

States are building a national environmental protection system that can efficiently deliver measurable and meaningful results toward the protection of public health and the environment. Often called cooperative federalism, this system relies on harmonizing the strengths and capabilities of the individual states, along with those of the federal government, to get the job done. Cooperative federalism should not be a tug-of-war for control between the states and the federal government, nor should it be an abdication of responsibility leaving anyone holding the bag.

States first began to implement federal environmental programs delegated to them about 50 years ago. Over time, states have become the primary implementers of the federal statutes and today have assumed more than 90 percent of the delegable authorities. States have built institutional infrastructure and expertise, and have gained the operational experience necessary to run these programs effectively. The vast majority of boots on the ground in environmental protection belongs to state employees, who write most of the permits, conduct most of the inspections, and produce most of the results.

The federal government is a necessary part of the equation and plays several leading roles in the process — setting national minimum standards, conducting scientific research, providing funding support, and assuring that state programs continue to meet its standards.

Managing the relationship between EPA and the states has been a challenge, and likely will continue to be. Discussions and disagreements about proper roles have been commonplace. How much and what kind of data should be reported? Which state permits need to be reviewed by EPA? When and where are federal inspections appropriate? What are the best measures of program performance?

While these issues will always need to be discussed and approaches revised over time, some recent progress provides reason for optimism. Policy memos from EPA Administrator Andrew Wheeler and from Assistant Administrator Susan Bodine describe how deference to states in implementing federally delegated programs will work and how joint planning and shared accountability in enforcement will operate. These policies, which are consistent with steps that states have advocated, can lead to clearer roles, reduced duplication of effort, and realization of shared goals.

Through a project jointly governed by EPA, states, and tribes called E-Enterprise for the Environment, we are building new tools to improve the business process of environmental protection. Platforms for the efficient collection, sharing, and use of environmental data will improve decisionmaking and inform the public while reducing a significant cost burden for states. Other tools will help state staff to better conduct inspections and much more efficiently prepare the reports needed to support enforcement actions.

Adequate funding for environmental programs at the federal and state levels is another challenge that will endure. The recent progress in cooperative federalism can go a long way toward improving the cost efficiency of our work and reducing duplication. States and Congress will nevertheless need to redouble efforts to support sustainable funding as the environmental challenges grow more complex.

One source of state revenue is permit fees, often based on the amount of emissions from permitted facilities. An irony of successful programs to reduce emissions is that fee revenues are reduced as well. Some states are developing new programs to more flexibly adjust fees to better cover the costs of running the permit programs. Others are stepping up to direct additional appropriations to meet emerging environmental challenges. States also believe that cooperative federalism requires adequate funding support from the federal government to carry out federally delegated authorities.

Cooperative federalism is not about stepping back on environmental protection. It is about harmonizing the efforts of all partners to maximize results. That will remain a challenge, but it is one that we are able to meet.

Coopting Federalism
Eric Schaeffer - Environmental Integrity Project
Environmental Integrity Project
Current Issue
Coopting Federalism

The administration is pushing more environmental programs to the states, accelerating a long-term trend of delegation. Meanwhile the White House is cutting back on EPA’s budget. Unfortunately, many states are dramatically downsizing their pollution-control agencies at the same time

The Environmental Protection Agency has been shrinking slowly over the past decade, leaving the current workforce of 14,172 at its lowest level since Ronald Reagan’s second term in the White House more than 30 years ago. But downsizing EPA and “returning power to the states” won’t hurt the environment or jeopardize public health, because states have assumed much greater responsibility for implementing laws like the Clean Air Act and Clean Water Act and are ready to fill any gaps as EPA retreats. Or so we are told by the Trump administration and their allies in Congress, conservative think tanks, and the fossil fuel industry.

The reality is a little more complicated. As EPA contracts, the workforce among the state pollution control agencies that are supposed to be shouldering more of the burden under cooperative federalism has also dwindled. An in-depth review by my organization, the Environmental Integrity Project, found that environmental agency workforce levels declined in 40 states between 2008-18, with 10 states shedding 20 percent or more of their staff over the 10-year period. We shared our data with state environmental agencies and budget offices before our report was released, and the 18 states responding largely confirmed our findings.

The Great Recession that ended in 2009 cannot explain these cutbacks. After adjusting for inflation, total spending increased in states like North Carolina, Texas, and Wisconsin in the 10-year interval we studied, while their outlays for pollution-control agencies declined by more than a third. These opposing trends suggest that some states are making political decisions to short-change their own environmental agencies even when times are flush. We need to ask how they can take on so many federal program responsibilities after all these budget cuts.

The answer, you may hear from EPA and some states, is to squeeze more out of less through Lean Management practices that make environmental programs more efficient. This commitment to continuous improvement is derived from the Total Quality Management principles and the ISO 14001 environmental management system standard popular among so many corporations and at EPA in the 1990s. Almost everyone who works in government or pays taxes to support it will cheer any attempts to eliminate waste and focus on the most important tasks. The problem is that doing the best with what you have does not always mean that you have enough to get the job done.

The Arizona Department of Environmental Quality, one of the principal exponents of Lean Management, lost 32 percent of its workforce between 2008-18. ADEQ’s 2016 CWA assessment reported that more than half of the state’s perennial stream miles were not clean enough to meet one or more designated public uses, but also that, “due to declining monitoring resources,” only 52 percent of total mileage was evaluated from 2010-15, compared to 76 percent in 2006-08. Whatever the virtues of Arizona’s Lean Management, smaller monitoring budgets cut the number of stream miles assessed by about a third, leaving the state and its citizens in the dark about the quality of those waterways.

Arizona is one of the states that EPA has authorized to implement most federal environmental rules that reflect statutory obligations like the CWA’s mandate to identify and clean up polluted waterways. For those not already familiar with that process, EPA regulations establish national standards to protect environmental quality or public health and define the minimum pollution control, monitoring, and permitting requirements that apply to the largest sources of pollution. EPA can authorize states to implement these rules by, for example, issuing permits or developing specific plans to achieve federal air or water quality standards. The states that assume these duties on behalf of the federal government must agree to minimum performance standards, with continued EPA oversight to make sure those promises are kept. With few exceptions, EPA always retains its statutory authority to object to permits that weaken federal standards and to enforce requirements where needed.

The Environmental Council of the States has long advocated for more flexibility and less EPA oversight of the state agencies implementing federal rules. In 2017, ECOS proposed to reshape the balance of power between EPA and the states in “Cooperative Federalism 2.0,” a statement of principles on behalf of the state commissioners that ECOS represents. In brief, these principles assert that as state agencies have matured and assumed the primary responsibility for implementing federal programs, EPA should defer more often to their judgments, and avoid reviewing or objecting to specific state permit or other decisions in favor of after-the-fact program reviews. EPA should exercise the federal power to enforce only in limited circumstances, the council believes.

According to ECOS, “States should have flexibility to determine the best way for their programs to achieve national minimum standards that enables them to incorporate and integrate their unique geophysical, ecological, social, and economic conditions.” Furthermore, “U.S. EPA should respect the states’ role as the primary implementer of national environmental regulatory programs and not review individual state implementation decisions, including enforcement, on a routine or recurring basis unless programmatic audits identify this need or particular circumstances compel federal action.”

Cooperative federalism has curbside appeal, and we do need a commonsense framework through which EPA and states coordinate and manage their respective responsibilities under federal environmental laws. But the principles advanced by ECOS suffer from serious practical limitations. They do not really address how EPA can conduct the meaningful oversight of authorized state programs that is required under federal law, while also functioning as a partner that avoids “routine or recurring” review of state actions. Nor do they acknowledge or discuss the lack of capacity, legal authority, or political will that has compromised the ability of some states to meet minimum federal standards. And they ignore the elephant in the room, which is how many times cooperative federalism has been used as a political weapon to attack almost every significant environmental standard that EPA has proposed or adopted over the past 10 years.

Let’s start with a closer look at what the Clean Air Act says about the relationship between EPA and states. The congressional findings that preface that law say “that air pollution prevention . . . or air pollution control at its source is the primary responsibility of states and local governments.” That is followed by 230 pages of statutory text bursting with federally enforceable mandates that include very specific criteria for state implementation of CAA requirements, with detailed procedures for permitting major sources, identifying the best available pollution control and emissions test methods and when they apply, offsetting emissions from new sources in nonattainment areas, modeling to quantify emission increases from new projects, and safeguarding the public’s right to review or challenge permits. States are also prohibited from approving any emission limit that is weaker than the requirements of its federally authorized CAA State Implementation Plan, without first obtaining public review and EPA’s approval.

The Title V operating permits for major sources must include all federally enforceable standards and monitoring sufficient to assure compliance with those limits. EPA must either grant or deny petitions asking the federal agency to object to state-issued Title V permits that do not meet those requirements, and must rewrite a permit that it has identified as deficient if the state refuses to do so. EPA can be sued for its failure to perform these mandatory duties.

These are statutory mandates, notwithstanding congressional findings about states’ “primary responsibility” for air pollution control. Former EPA Administrator Scott Pruitt and other conservative advocates of states rights like to invoke the rule of law. But one of the bedrock principles of that rule is that the specific requirements of a statute, so long as they are reasonably clear, will always trump general exhortations.

Cooperative federalism anticipates that EPA will continue to write minimum national standards. But it glosses over the fact that federal environmental laws include specific, enforceable requirements that govern the implementation of those standards by authorized states. These requirements reflect important values like ensuring that state permit reviews are transparent and allow for real public participation, or that large new projects install the best available pollution controls in every state. While environmental laws allow for some flexibility, they also constrain states’ ability to alter their implementation to, in ECOS’s words, “incorporate and integrate their unique geophysical, ecological, social, and economic conditions.”

With limited exceptions, states have been free to adopt standards that are more stringent than required under the Clean Air Act and other federal environmental laws. Some states have taken advantage of that flexibility to innovate and serve as the “laboratories of democracy” that Justice Brandeis hailed in his famous 1932 dissent in New State Ice Co. v. Lieberman. In that case, Justice Brandeis was actually defending a state’s right to require the licensing of ice-making operations, not its authority to write a rule weaker than a corresponding federal regulation. That has not stopped conservatives like Ken Paxton, the Texas attorney general, from using the Brandeis dissent as a war cry in his fight against over-regulation by EPA and other meddling federal bureaucrats. “The states were designed to be the laboratories of democracy, not entities to be wholly ruled by the federal government,” according to Paxton. “In a day and age where state sovereignty is perpetually under attack from the radical Left, attorneys general are on the front lines battling for states’ freedoms.”

In some cases, a surprising number of states have declined to exercise that freedom to do more than what EPA has required. For example, on June 19, 2017, a total of 21 states joined a letter asking EPA Administrator Scott Pruitt to torpedo the 2015 Waters of the United States rule clarifying CWA jurisdiction over wetlands and other waterways in the wake of Supreme Court decisions in SWANCC and Rapanos. The letter argued that EPA’s regulation “significantly impinges on the states’ traditional role as the primary regulators of land and water resources within their borders,” and was not needed because, “Importantly, the states have robust powers to protect their own waters, regardless of whether those waters are regulated under the CWA.” Emphasis added.

Yet according to a 2013 study by the Environmental Law Institute, 15 of the 21 states signing the letter had statutes or regulations limiting their own jurisdiction over wetlands to those covered under the federal CWA. For example, Section 11.506 of the Texas Water Code states that “if the state definition conflicts with the federal definition in any manner, the federal definition prevails.” Remember that when you hear promises that states will protect the wetlands and streams that will be cut out of the CWA if President Trump has his way.

The 1972 Clean Water Act pledged to, “restore and maintain the chemical, physical, and biological integrity of our nation’s waters,” and called for “fishable and swimmable waters by 1983.” Even states opposing the Obama WOTUS rule have acknowledged that cleaning up rivers, streams, lakes, and estuaries and restoring them to public use is a primary federal obligation under the Clean Water Act. For example, the state letter opposing the 2015 WOTUS rule noted, “Every two years, states also must report to EPA on the condition of those waters . . and if waters do not meet their designated standards, the states must develop detailed pollution diets for those waters and submit those diets to EPA for approval.”

Here, the CWA does give states some leeway to develop their own water quality criteria and to determine which waterways are polluted enough to “impair” recreational use, aquatic life, or drinking water sources. The results so far are discouraging. According to the latest data available from EPA, states had completed water quality assessments for less than a third of the 3.5 million total miles of U.S. rivers and streams; less than half of our 41.7 million acres of lakes; 64 percent of our 87.8 million square miles of bays and estuaries; and just over 1 percent of our wetlands. Unfortunately, most of those waterways that have been evaluated are not meeting CWA goals, with more than two thirds of lake acreage and estuary miles and over half of stream miles impaired by pollution. In hindsight, the 1972 goals were hopelessly optimistic, new science continues to expose new forms of pollution that were invisible half a century ago, and some states have done truly innovative work to identify and clean up contaminated waterways. But after almost fifty years, we are facing a massive backlog of cleanup work that will require additional federal support and more EPA oversight, not less.

The cooperative federalism articles approved by ECOS recognize that states must be able and willing to enforce CWA standards and other federal rules they agree to implement: “The robust enforcement of regulations is a key aspect of environmental assurance, both by stopping and remedying non-compliance and by creating a climate of deterrence for other potential deliberate violators.” Congress established strict no-fault civil liability for violations of federal environmental laws that does not require proving they were “deliberate,” making ignorance of the law no excuse for illegal pollution. While Congress also gave EPA authority to bring criminal prosecution against intentional violators, few states have the power or the capacity to do so, and their ability to recover penalties for civil violations is much more limited than EPA’s.

For example, the 1977 Clean Air Act amendments initially authorized EPA to seek up to $25,000 per day for each violation of a federally enforceable SIP. Because federal penalties are indexed for inflation, the statutory ceiling for EPA is now $99,581 per day for violations that occur after November 15, 2015. In contrast, environmental agencies can obtain no more than $10,000 per day for violations of the same federal rules in states like Alabama, Arizona, Iowa, Missouri, North Dakota, Oklahoma, Pennsylvania, and Tennessee. The penalty caps in other authorized states can range from $25,000 to $32,500 per day, which means that the penalty liability for violations of the same federal law can vary widely depending on where they occur and whether the case is brought by EPA or a state agency.

Most enforcement cases, including EPA’s own, conclude with negotiated settlements and penalties far lower than the statutory maximum. But having the authority to recover much higher amounts can make it easier to negotiate consent decrees that secure needed money for pollution cleanup. The mismatch between the power of EPA and state environmental agencies to enforce needs more attention when cooperative federalism is discussed.

Cooperative federalism anticipates performance measures for state programs that emphasize compliance rates rather than the level of enforcement activity. That could be done by tracking the number of serious violators in each state, based on criteria in guidance documents that EPA and states have already agreed to. That effort will not succeed if we cannot close monitoring gaps that often make it impossible to know whether even the most obvious sources of pollution — like big wastewater treatment plants — are complying with federal environmental laws.

For example, EPA regulations include standards to limit the discharge of 129 “priority” toxic pollutants targeted for cleanup in the 1977 CWA amendments. In September, EPA Administrator Andrew Wheeler publicly criticized California for failing to take action against several large sewage treatment plants for discharges that violated specific limits for several of these priority pollutants. But a 2014 report by EPA’s inspector general found that while California, Arizona, and Nevada require sewage treatment plants to monitor and report discharges of an average of 109 toxic pollutants, their counterparts in the other 47 states monitor an average of four.

To provide a cheaper alternative to the kind of systematic monitoring that California requires, EPA developed “whole effluent toxicity” tests that count the number of brine shrimp or minnows that die when exposed to effluent at various concentrations. But the IG’s 2014 report found that this backup plan wasn’t working either, because only a third of the largest wastewater treatment plants in the United States were required to conduct WET tests, less than half of those reported their results, and states do not systematically follow up when testing identifies discharges lethal to aquatic life. The problem is obvious: states that require less monitoring will find fewer violators and report higher compliance rates that do not reflect reality.

Similarly, some states regularly approve flexible CAA emission caps that are supposed to represent a facility’s total potential to emit carcinogens like benzene from hundreds of sources that include tanks, cooling towers, leaking production units, and flares, which allow companies to demonstrate compliance based on self-serving estimates of emissions that are little more than guesswork. New data required under a 2015 CAA rule have shown that concentrations of benzene, a known carcinogen, along refinery fencelines are much higher than EPA expected based on emission reports from the same facilities. The under-reporting of emissions is well documented in other areas and needs more attention before states can credibly claim high compliance rates.

For cooperative federalism to succeed, we need more plain talk about the kind of capacity, authority, and performance we expect from both EPA and authorized states, and a serious plan for fixing the problems — such as the lack of monitoring — that make it impossible to determine compliance or measure environmental results. We should have that conversation based on an understanding that both EPA and state agencies are essential and should work together to solve these problems whenever possible.

Neither EPA nor state environmental agencies have the resources to meet their responsibilities under the law. While funding gaps will persist we can surely do better. The primary goal should be to determine if states have what they need to effectively manage the federal environmental programs they have taken on. Efficiency improvements are welcome, but should not force a shrinking staff to frantically rubber-stamp their way through a mountain of permit applications at an ever faster rate. Congress should increase funding for EPA and for authorized states that agree not to reduce their own contribution to their environmental agencies. To its credit, ECOS has advocated for more funding for EPA as well as states.

As ECOS anticipates, EPA should continue to conduct periodic reviews of a state’s performance using the criteria established under annual grant agreements and under federal laws that apply to authorized states. EPA headquarters should play a more direct role in these evaluations, working with regions to make them more consistent. While the review process could be more efficient, ECOS needs to say more about why it thinks record reviews should not be detailed or routine, why the public should have confidence in more limited evaluations, and how implementation of federal rules will be tailored to each state’s “unique geophysical, ecological, social, and economic conditions,” the state council’s mantra.

These state reviews should include transparent measures of performance that the public can understand and appreciate. Agencies can determine compliance rates by tracking violations and how quickly they are corrected, especially for the more serious noncompliance events that are well defined in guidance EPA has already negotiated with states. EPA’s Environmental Compliance History Online should provide the national public repository for this information. The results will not be credible, however, unless EPA and states can close the monitoring gaps that leave so much pollution unreported and so many violations undetected. It is fair to insist that California enforce toxic discharge limits that it has established for sewage treatment plants, but not without acknowledging that so few states have bothered to either limit or monitor these pollutants in the first place.

Performance can also be evaluated based on progress in achieving long-term environmental goals, such as attaining and preserving federal air and water quality standards. To encourage a race to the top, EPA’s reviews can do more to compare (or at least expose) how much progress each state is making toward program goals relative to other states. Again, that will only work to the extent monitoring is reliable enough to measure performance.

EPA’s inspector general should play a larger role investigating and reporting on critical weaknesses in both EPA and state programs, as it has the kind of independence needed for unbiased reviews. EPA program offices already respond to the findings and recommendations in IG reports and states should be given the same opportunity, with the IG following up to see whether the problems identified have been resolved.

What kind of accountability will we get when a state keeps failing its performance test? Not much. ECOS can suggest that EPA take over failing state programs, as it does in “Cooperative Federalism 2.0,” secure in the knowledge that has never happened and never will. While EPA can take that step under federal law, the political costs and EPA’s own limited budget have made that option impractical. Performance reviews hopefully inspire continuous improvement, but that can be a very slow process in government bureaucracies. At the current rate, for example, it will take another forty years just to finish assessing the condition of our nation’s rivers and streams, and we will still be a long way from restoring them to environmental health.

Given their limitations, it would be a very bad idea to let state performance reviews erode EPA’s ability to object to bad permits or take enforcement actions when needed. These are statutory responsibilities that EPA needs to exercise when, in its best judgment, the circumstances require it. States have frequently used the threat of EPA action to negotiate better permit terms or persuade a violator to comply. Clipping the federal agency’s wings reduces that leverage. Environmental groups are more likely to challenge federal permits that are grossly deficient, creating the kind of uncertainty and delay that could have been resolved if EPA’s review had flagged the problems earlier.

Permit reviews can also be the most effective way to correct a system-wide failure. For example, EPA recently granted our objection to a state-approved CAA operating permit which kept certain emission limits “confidential.” EPA’s decision, unless appealed to a federal court, establishes a bright line that should discourage a practice that appeared to be spreading in this particular jurisdiction.

Regarding enforcement, the agency only concludes about a hundred civil cases a year in federal court and obtains fewer than 1,500 administrative penalty orders. That is not very many in a country of more than 330 million, and these federal enforcement actions usually target large corporate defendants, big oil or chemical spills, parties responsible for Superfund cleanup, and programs not delegated to states or that are undertaken in response to state requests for help. Judging from the number of unresolved serious violations that accumulate year after year, we need more enforcement instead of less, and we definitely don’t need another elaborate bureaucratic minuet to slow things down. People care about pollution in the places where they live or work, and don’t have much time for the finer points of cooperative federalism or agency squabbles over turf. They want the government’s help here and now, not a performance review years later that acknowledges in muffled government prose that they got stuck with bad permits or were exposed to illegal pollution far too long.

Federalism is baked into our Constitution, and who can argue against cooperation without, well, sounding uncooperative? But along with “states’ rights” and other slogans that sound benign, cooperative federalism is repeatedly invoked by political interests primarily interested in rolling back environmental regulations and making it harder for communities to challenge big new industrial projects. Over the past ten years, states like Texas, Oklahoma, and Arizona have asked federal courts to overturn a long list of EPA regulations, including rules to tighten ozone standards, clarify federal Clean Water Act jurisdiction, limit mercury, hazardous air pollution, and greenhouse gases from power plants, reduce smog-forming chemicals and methane from oil and gas operations, require additional measures to reduce the risk of chemical accidents that endanger neighborhoods, and eliminate loopholes that excuse emissions caused by poor maintenance or repeated equipment breakdowns.

These lawsuits, brought by ambitious state attorneys general frequently running for higher office, are fanned by press releases that under the Obama administration repeatedly accused EPA of job-killing, land-grabbing, and blatant and unconstitutional overreach. “Cooperative federalism” pops up again and again in these public statements and legal briefs. EPA will not respond in kind (even in previous administrations) by, for example, publicly blasting the Texas Commission on Environmental Quality for fighting standards to reduce the risk of chemical accidents despite the fires and explosions that have shut down schools and evacuated neighborhoods in the Houston Ship Channel last year. An EPA left to tiptoe through this deep political divide is not in a good position to criticize performance in a state led by politicians who regularly blast the federal agency for usurping its authority and violating the Constitution.

Some of the loudest advocates for state primacy can switch sides and call for federal preemption when it suits their purpose. Former EPA Administrator Scott Pruitt talked endlessly about returning power to the states during his brief tenure at the federal agency. But as Oklahoma’s attorney general, he filed an unsuccessful federal lawsuit on behalf of his state’s egg producers arguing that California’s animal welfare standards for poultry houses were prohibited under the Constitution’s commerce clause. Ken Paxton, the Texas attorney general who has attacked EPA relentlessly in the name of states’ rights, filed an amicus brief that opposed New York’s right to sue Exxon for its failure to disclose in-house global warming research to the company’s stockholders. Andrew Wheeler, the former coal industry lobbyist now running EPA and a frequent exponent of cooperative federalism, released a 163-page proposal last year to limit state authority to review and object to pipelines and other energy projects. Count on these “federalists” to wave the states’ rights banner one day and call for preemption the day after without blushing, if that’s what it takes to get environmental, health, and safety rules out of industry’s way.

Cooperative federalism has to be something more than a means to an end for interest groups pushing regulatory rollbacks. Otherwise, its promise will never be fulfilled and it will become yet another empty phrase among the many that already litter our political landscape. TEF

COVER STORY The administration is pushing more environmental programs to the states, accelerating a long-term trend of delegation. Meanwhile the White House is cutting back on EPA’s budget. Unfortunately, many states are dramatically downsizing their pollution-control agencies at the same time.

Is It Safe?
The Tale of America's Drinking Water Systems
G. Tracy Mehan III - American Water Works Association
American Water Works Association
Current Issue

Martin Doyle, director of the Water Program at Duke’s Nicholas Institute for Environmental Policy Solutions, recently observed, “Being able to blithely drink water from just about any faucet in the United States without concern is one of the greatest achievements of American society.”

The report from the 2019 Aspen-Nicholas Water Forum, titled “Ensuring Water Quality: Innovating on the Clean Water & Safe Drinking Water Acts for the 21st Century,” notes that “The [Safe Drinking Water Act] has achieved remarkable improvements in drinking water quality with more than 90% of community water systems achieving all water quality standards all of the time.” Noting that there are still numerous challenges, and that the law’s effectiveness has “plateaued,” the report recognizes that “this is an incredible accomplishment.”

Even as the crisis in Flint, Michigan, spotlighted the remaining legacy issues with the 6.1 to 10 million lead service lines still existent, EPA states in its proposed revisions to its Lead and Copper Rule that “the United States has made tremendous progress in lowering children’s blood levels.” Specifically, “the median concentration of lead in the blood of children aged 1 to 5 years dropped from 15 micrograms per deciliter in 1976-1980 to 0.7 micrograms per deciliter in 2013-2014, a decrease of 95 percent.”

Also, “the number of the nation’s large drinking water systems with a 90th percentile sample value exceeding the LCR action level of 15 parts per billion has decreased by over 90 percent since the initial implementation of the LCR,” according to the agency’s October 2016 white paper. This has been achieved by means of corrosion-control techniques implemented by drinking water utilities.

Seth Siegel would argue this is an overly positive assessment of the state of the nation’s drinking water, and has written a book, Troubled Water: What’s Wrong With What We Drink, offering a systematic critique of the Safe Drinking Water Act, especially the 1996 amendments, as well as the actions of the vital players: EPA; the “water industry,” or public utilities; and the Congress, whose failure to embrace something very much like a European-style Precautionary Principle regulating thousands of chemicals until proven innocent is a kind of reverse onus, so to speak. Siegel does not use these terms but that is the substance of his argument. He further argues that EPA has been captured by the regulated community and is more concerned with keeping costs down rather than showing regard for safe drinking water and human health.

Siegel’s first book was a very fine one on the rise of Israel as a leader in water management, policy, and technology entitled, Let There Be Water: Israel’s Solution for A Water-Starved World. “Israel is the only country in the world which has less area covered by desert today than fifty years ago,” writes Siegel. Israel does it all: long-range transport of water; full-cost pricing; reuse of sewage (85 percent versus 8 percent for the United States); 75 percent of its irrigated fields utilizing drip irrigation; new seeds for water-efficient crops; and five desalination plants developed on its coast in less time than it took to get one built in California. Compared to the sprawling United States, a federal, continental nation of 327 million with over 50,000 community water systems, Israel is a model of purposeful and focused effort when it comes to water.

Troubled Water, however, tells a darker story, leaving readers with the impression that rival factions are vying for control of American drinking water law and policy. The “water industry,” the White House Office of Management and Budget, and EPA are on one side. Selected advocates, NGOs and academics are on the other.

Full disclosure: this reviewer works for an association representing drinking water utilities and served two tours at EPA. Hence his concern with passages in the book such as the following: “And when they couldn’t stop a contaminant from getting on the EPA list of chemicals that had to be screened, then utilities would have an incentive to have the threshold for acceptable contamination set as high as possible, thereby making the utility’s treatment costs as low as possible,” claims Siegel. “Strangely, rather than resisting this effort to keep the Safe Drinking Water Act from leading to the best drinking water possible, the EPA was mostly willing to oblige the utilities’ wish for minimal enforcement.”


Nevertheless, Siegel does make several arguments and recommendations deserving of careful consideration by the policy community. Some have been around a long time without gaining purchase with federal, state, or local legislators or governors or mayors. More money for safe drinking water, say, bumps up against the reality that federal funding for water and wastewater has been flat for sixty years.

Siegel calls for consolidation of water utilities. This is an eminently sensible idea. California has 7,500 utilities compared to 23 in the entire United Kingdom. Unfortunately, despite years of EPA’s pleading with states, rural water utilities, and municipalities, little has changed. Kentucky did a good job of consolidating utilities from a couple of thousand to a couple of hundred almost twenty years ago, but few other states have followed that example. And it is hard to envision a forced consolidation, as was mandated by a centralized British government and was followed by privatization, in an American federal system. Time, expense, and personnel shortages may force some regionalization or consolidation, but it will be a slow, organic process.

Most controversial is Siegel’s proposal to move the drinking water program out of EPA into the Department of Health and Human Services as if, somehow, HHS will be any more removed from the inevitable policy and political influence of the White House and OMB. It will not repeal the Administrative Procedure Act or the executive orders requiring benefit-cost analysis of government regulations that have persisted through both Democratic and Republican administrations going back to Ronald Reagan’s.

Siegel does not appreciate how inherently political, and therefore controversial, regulatory issues are, such as, how safe is safe? what level of protection at what cost? and, who pays for what? HHS would struggle with those questions, just as EPA has for over 40 years.

Siegel echoes those who have lost patience with the admittedly lengthy, science-based, data-driven approach to regulation under the 1996 SDWA amendments, themselves a reaction to the 1986 amendments. Such is his concern with thousands of chemicals in use today, Siegel would repeal the 1996 amendments and allow the setting of standards of any kind if feasible without concern for meaningful improvements to health, cost, or benefits.

Siegel is silent on how problematic the 1986 amendments actually were. These amendments required EPA to issue drinking water standards for 83 specified contaminants and for 25 additional contaminants every three years. This reviewer was on the receiving end of this process as a state official and was hard put to explain the science or other justification for this cascade of regulation to state appropriators, utilities, or customers.

Robert Perciasepe, former deputy administrator at EPA in the Obama administration and head of the water office in the Clinton administration, testified to the House Subcommittee on Environment, Energy and Natural Resources in 1994 that “this rigid ‘25 every 3 years’ statutory requirement outpaces the agency’s ability to critically assess whether there are public health threats posed by thousands of contaminants that may appear in drinking water before developing regulations.”

Continued Perciasepe, “Future regulations may not be aimed at the highest priority public health risks, potentially increasing the already significant regulatory burden on EPA, the states and public water systems with only marginal benefits.”

Seth Siegel is spot on, however, on the need to improve governance of public drinking water utilities. Under the heading “Keep Mayors Away From Water,” he argues, persuasively, that “to improve decision-making, the counterproductive connection between water utilities and municipal government needs to be decoupled.” Many utilities are totally embedded in city government, rather than an enterprise fund, and subject to political, not public health or business imperatives.

As this reviewer has often argued, raising water rates to maintain the system is often viewed by an elected official as a tax increase, a root canal in political terms. Whether it be an independent water authority (Denver), a separate corporation owned by the city (Louisville) or a private, investor-owned utility, anything that creates distance from the electoral cycle will improve utility management and finance. Washington, D.C.’s water and wastewater utility improved immensely since becoming a separate authority. Yet, as Siegel points out, “De-linking water utilities from mayoral politics, though, need not lead to unaccountability.” City or county elected officials can reserve the right to appoint the board members or commissioners, ideally for fixed terms.

Regulation is hard work. There are no shortcuts. Data, science, technology, and economics are all part of the mix and need to be brought to bear on the challenges of determining actual risks to human health and what to do about them so that benefits exceed the costs. Otherwise, regulators will practice precaution without principle.


G. Tracy Mehan III was assistant administrator for water at EPA from 2001-03. He may be contacted at gtracymehan@gmail.com.

On Water Everywhere, Mostly Fit to Drink.

ECOS Chief Strives for "Efficient" Alignment of State, Federal Roles
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Linda K. Breggin

Donald S. Welsh, who is the new executive director of the Environmental Council of the States, came out of retirement to take the job. Usually, folks who do that have some sort of inspiration, and indeed that’s the case here. In an interview, Welsh told us that he was impressed with the association of state environmental commissioners when he served as a deputy secretary of the Pennsylvania Department of Environmental Protection and as an EPA regional administrator during the George W. Bush administration. What appealed to him most were both the ECOS mission and the people who are carrying it out.

The press release announcing his appointment states that Welsh will be “instrumental in helping member states develop consensus while preserving states’ diversity in environmental policy.” In our interview, we ask first off how he planned to achieve this ambitious goal. Welsh allows that ECOS represents both very liberal and very conservative states, which presents a serious challenge.

He observes that in the past ECOS spent “a fair amount of time trying to reach consensus,” and it can be “futile for members to try to convince each other when politics and policies are dictated” by their states. But the “real center” of ECOS’s work is in sharing success stories and lessons learned. This outreach can thus enable a state to “capitalize on the pioneering work of another state.”

Furthermore, according to Welsh, the mechanisms by which federal and state governments deliver environmental protection involve “many common challenges” shared by both liberal Democratic and conservative Republican states. He emphasizes that ECOS plays an important role in related “process improvements” and in trying to ensure that “resources are put to the most efficient use.”

To this end, a new ECOS project asks states to report on 14 measures of program performance, in an effort to develop more robust ways of measuring success that avoid bean counting and the “ensuing arguments over what the numbers mean.” He points out, however, that new technologies such as sensor drones and big data management may bring the ability to report measures in ways that are not as burdensome but effectively “tell the story of what is happening in the environment.”

Welsh also wants to address cooperative federalism, which can be “misunderstood as a tug of war over who should be the leader,” but “rightly understood it is an effort to align the work of the federal and state governments so they are both pulling on the same side of rope to move environmental protection forward.” In fact, when asked what he would most like to achieve, Welsh offers that he wants to institutionalize the realignment of roles in a way that provides states with a permanent seat at the table, thereby ensuring that EPA and the states do in the end “pull the rope together.”

He asserts that in the past it was as if “states were crying in the wilderness” about the problem of overlapping efforts. Welsh describes past concerns about “phantom delegation,” whereby EPA continued to run a program even after it was delegated. Welsh points to considerable progress in addressing states’ concerns today. He notes as a for instance that their agencies are now consulted on EPA’s proposed regulatory changes to national program guidance.

We asked which environmental challenges are front and center for ECOS members. First, Welsh points to per- and poly-fluoroalkyl substances and notes that ECOS hosts a working group on risk characterization that addresses these and other emerging contaminants of concern. He says the biggest challenge is talking to the public: risk communication and the need for consistent interpretations of the science. Second, Welsh names nonpoint source water pollution as a continuing challenge for states because, rather than working mainly with a few large national companies, states must work with a wide array of stakeholders, which is much more resource intensive.

Finally, we ask about the status of state environmental budgets. Although ECOS no longer conducts a comprehensive analysis, Welsh was unequivocal: “Everybody is under budget pressure at the state and federal level.” ECOS has weighed in on cuts to State and Tribal Assistance Grants. Recent federal budgets have restored funding going to states, but Welsh acknowledges that they are still concerned.

In closing, Welsh identifies what may be a key to his organization’s ability to develop a membership-driven agenda in this partisan era. He points out that a strength over the years has been the involvement of the secretaries and commissioners themselves, rather than only their staff, in setting ECOS priorities.

ECOS chief strives for "efficient" alignment of state, federal roles.

Macbeth Report: Cooperative Federalism Reimagined
Scott Fulton - Environmental Law Institute
Environmental Law Institute
Current Issue
Scott Fulton

In the Summer of 2017 the Institute undertook a special project in memory of our dear departed colleague Angus Macbeth. We did so with support, encouragement, and input from across the ELI community and the American College of Environmental Lawyers, and in cooperation with the Environmental Council of States. Angus was the friend of many, but was also one of the great leaders in environmental law, a former president of the college, and a long-time supporter of ELI.

As Angus played no small role in the construction of the system of environmental protection as it exists today, and was also relentlessly committed to the pursuit of new ways to deliver environmental quality, we settled on cooperative federalism as the project topic. The Macbeth Dialogues sought to bring together leading experts to discuss the federal-state relationship in the environmental sphere, in hopes of shining a light on law and policy solutions for optimizing the configuration of governmental roles.

Under this project, we convened a Chatham House Rules gathering of current and former senior state and federal officials, many of whom had worn both state and federal hats. We also convened several dialogues with a broader array of stakeholders and did some rather extensive surveying. The resulting “Macbeth Report” is one of the more thoughtful pieces on cooperative federalism that has been rendered. You can find it for free download at eli.org/research-report/macbeth-report-cooperative-federalism-modern-era.

As the report reflects, there is considerable support for giving states with demonstrated capabilities greater independence and flexibility in running delegated environmental protection programs, but even enthusiasts for greater state primacy consistently agree that EPA must continue its leading role in developing national standards, conducting scientific research, and governing on interstate issues.

The report reveals broad support for flexibility for states in meeting minimum national standards, setting more stringent standards, and 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 primacy for criminal enforcement and environmental justice cases. But over 70 percent of those surveyed felt that the federal government should defer where states can do a better, or as good, a job, and over 50 percent of respondents felt that EPA intervention in delegated states should be limited to circumstances of documented failure or when the state has provided inadequate resources.

With the traction of sustainability policies in the private sector, driven in part by shareholder and customer demand, the report also explores whether a parallel flexibility in government oversight of high-performing companies might be possible under the rubric of public-private parallelism. The study also considers the role that citizens — equipped with unprecedented amounts of environmental information and operating in a socially networked world — will play as a driver of environmental behavior.

In terms of options for adjustment or realignment, “The Macbeth Report” points to possible recalibration of compliance expectations under a concept of actionable noncompliance, which could serve to shift the threshold for enforcement intervention from an absolute compliance expectation to one that would allow certain types of exceedances to be timely self-corrected without enforcement implications.

ECOS has recommended that EPA move to an audit system for oversight in lieu of matter-by-matter reviews. “The Macbeth Report” advises that auditing be first piloted in a few EPA regions and programs before broader deployment, so that the mechanics can be tuned. Permitting decisions may a good place to focus such pilot projects.

Recognizing the importance of the interstate dimension in defining the federal role, the report recommends that a formal structure be created to give downwind/downstream states a more meaningful voice. The study generally recommends greater use of protocols designed to provide aggrieved states with a time-limited elevation opportunity prior to federal intervention.

Given technology’s advance toward much more comprehensive, real-time understanding of environmental conditions, “The Macbeth Report” recommends that EPA and the states experiment with new approaches for framing compliance expectations, for example by using sophisticated fence-line monitoring systems to allow for considerably more within-the-plant flexibility.

This gives you a flavor, but there is considerably more there, so please give it a read. And many thanks to all participants and to Angus for his life’s work.

Macbeth Report: Cooperative federalism reimagined.

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.

The Macbeth Report: Cooperative Federalism in the Modern Era
David Clarke, Scott Fulton, Adam Schempp, Sam Koenig, Christopher Ibrahim, and John Pendergrass
Date Released
October 2018
The Macbeth Report: Cooperative Federalism in the Modern Era

Policy professionals and the public who care deeply about the success of the United States’ environmental protection enterprise recognize that current challenges to the system demand both careful reflection and concerted action. Many changes over recent years have brought the United States to a point where our environmen­tal system may be ready for some fundamental realignments, including changes in states’ capacity, technological capabilities, and business behavior and expectations.

A Transparent Look at the Agency's Federalism and Science Policies
David P. Clarke
Current Issue
David P. Clarke

Corruption allegations that have dogged Scott Pruitt since before he took office as EPA administrator will undoubtedly color any future review of his tenure at the federal agency. But beyond those matters, at least two policies that Pruitt has emphasized transcend his administration and warrant closer consideration — cooperative federalism and science transparency.

On federalism, the Environmental Council of the States, representing 52 state and territorial environmental leaders, has called for a “recalibration of state and federal roles” from a policy, operational, and fiscal standpoint. Since 1970, ECOS members maintain, states have become the main implementers of environmental laws and, as mature program managers, should not be second-guessed by EPA on how they choose to meet national standards.

According to ECOS Executive Director Sam Sankar, states across the board would have said that EPA did not always include them early enough in substantive policy discussions. But this administration has at least tried to be more open to “hearing and engaging” with them early, notably on the Waters of the United States rule, he says.

That engagement did not extend to California, however, which in May led 17 other states in suing the agency to protect federal automotive greenhouse gas standards negotiated in 2012 among EPA, California, and automakers. After review in 2016, EPA and California deemed the standards to be both feasible and achievable at lower cost than first believed. But in April, “without giving us any new data or analysis,” Pruitt announced that the standards “may be too stringent,” says a California Air Resources Board spokesperson. If Pruitt adopts weaker federal standards, that would end the “one national program” that encompasses separate but compatible federal and California tailpipe standards.

On federalism, the spokesperson adds, California has practiced that for 50 years and its authority to set stricter standards is embedded in the Clean Air Act. That view is strongly shared by ECOS. In 2017, the organization adopted an “absolutely clear” resolution supporting California’s and other states’ discretion to adopt pollution and tailpipe standards within their borders that are stricter than federal limits, Sankar notes. “California’s authority is important to the states.”

While touting federalism, the Trump administration has also repeatedly proposed slashing EPA’s budget, including state grants, but Congress so far has rejected those proposals. As the 2019 budget season advances, states are very focused on ensuring that Congress and the administration support continued funding for them to meet their expanding co-regulator responsibilities, Sankar says. It would not be cooperative federalism to simultaneously shrink EPA’s role while reducing state funding, Sankar says.

On science policy, in April Pruitt announced a new proposed rule on “Strengthening Transparency in Regulatory Science,” alarming scientists and activists who saw it as a bid to exclude studies justifying strict regulations. Notable targets of regulatory critics are the Harvard Six Cities and American Cancer Society Cancer Prevention studies, which found links between air pollution and mortality and are widely used by EPA to justify strict air regulations.

In an initial response to the proposal, Dan Greenbaum — president of the Health Effects Institute, a widely respected air pollution research organization — says that how two crucial concepts are defined will determine how big an effect the rule has on the entire consideration of science at EPA.

The first concept, “pivotal regulatory science,” will limit which scientific studies are impacted, but it is unclear when a study becomes pivotal, Greenbaum says. The proposal only vaguely defines such studies as those “critical” to calculating final standards, costs, risks, and benefits.

The other concept is data accessibility. The rule calls for “public access” to “underlying pivotal science” and models “consistent with” privacy and confidentiality laws and confidential business information restrictions. The “number one question” is how accessible data is defined, Greenbaum says. Data depersonalized for a disc would not provide such information. Key issues remain unclear, Greenbaum says.

But some aspects of Pruitt’s overall approach to science are clear, most notably his rejection of massive troves of climate change data and his policy barring grant recipients from serving on science advisory panels while allowing scientists affiliated with regulated industries to serve. Federalism and sound science may be Pruitt’s watchwords, but helping companies, not environmental protection, is arguably his most transparent agenda.

A transparent look at the agency's federalism and science policies.

The Debate: Federalism During an Era of Retrenchment, Growing State Needs
Cooperative Federalism in the Trump Era: Can the Sovereigns Collaborate in Gains?
Current Issue
The Debate

Since its establishment 47 years ago, the U.S. Environmental Protection Agency 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’s budget and staffing and renewed focus on states, decisionmakers and stakeholders have a timely opportunity to rethink the paradigm of cooperative federalism and environmental protection.

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 the States 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 are being generated at an exponential rate, and other actors, namely localities and international regimes, are increasingly asserting their roles in environmental governance.

At the ELI-Miriam Hamilton Keare Policy Forum, held just before the annual Award Dinner, an 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.

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?


Stan Meiburg

“Big data, the 24-hour news cycle, and hyper-transparency have the potential to disrupt the federal-state relationship, but there are also opportunities”

Stan Meiburg
Director of Graduate Studies in Sustainability
Wake Forest University

Barry E. Hill

“Environmental justice has been embedded in each and every one of the laws that EPA administers. How is that going to change as a result of this
cooperative federalism?”

Barry E. Hill
Visiting Scholar
Environmental Law Institute

Neal Kemkar

“We at GE believe climate change is real. Pollutants don’t respect boundaries. Which raises the issue of state-federal relations and international relations as well”

Neal Kemkar
Director of Environmental Policy
General Electric

Becky Keogh

“Some view EPA as a helicopter parent to the states. Sometimes it’s a matter of letting our children grow up and understanding that programs have matured”

Becky Keogh
Arkansas Department of Environmental Quality

Bob Martineau

“Cooperative federalism is really about the how, not the what. As to the what, people will agree we should breathe clean air and should have access to clean water”

Bob Martineau
Tennessee Department of Environment and Conservation

Vickie Patton

“We’ve got to reach out to the public and commit to the highest levels of transparency and really inclusive dialogue. We’ve got to be thinking about adaptive federalism”

Vickie Patton
General Counsel
Environmental Defense Fund


Stan Meiburg: Here is a reading from Federalist #51.

“In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each is subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

This tension between two sovereigns can be destructive, as it was in the Civil War, but it can also be creative, with states serving as laboratories for democracy. The field of environmental protection is no exception to this tension and this opportunity.

Our first speaker on our federalism and environmental protection is Barry Hill. Barry is a visiting scholar at the Environmental Law Institute. He worked at EPA for many years as senior counsel for environmental governance in the Office of International Affairs, and as the director of the Office of Environmental Justice.

Barry Hill: There are four questions that I would like to pose. The first question is whether or not this cooperative federalism is new and what makes it so?

During the Clinton administration, I worked on EJSEAT — the Environmental Justice Strategic Enforcement Assessment Tool. Then the Bush administration came in and they said, “It’s now going to be called Environmental Justice Smart Enforcement Assessment Tool.” Same acronym, and at EPA we loved acronyms. Other than that one word, nothing really changed. So, I thought about that as it related to this thing called cooperative federalism and whether it is new.

The second question is whether a new cooperative federalism means we are going to abandon everything that has been done over the last 40 years or so in the environmental law and policy area. Will EPA no longer be the overseer?

The third question relates to environmental justice. Since the office was established 25 years ago, environmental justice has been seen as embedded in each and every one of the laws that EPA administers. How is that going to change as a result of this cooperative federalism?

The final question is whether this cooperative federalism is used as a sword or shield. In announcing the rollback of the Clean Power Plan, Administrator Pruitt said, “We can now assess whether further regulatory action is warranted; and, if so, what is the most appropriate path forward, consistent with the Clean Air Act and principles of cooperative federalism.”

Really? What does that mean?

He went on to state, “The previous rule ignored states’ concerns and eroded longstanding and important partnerships that are a necessary part of achieving positive environmental outcomes.” Was that a sword or shield?

Stan Meiburg: Neal Kemkar is the director of environmental policy at General Electric. Before joining GE, he worked for the White House Council on Environmental Quality, the secretary of the interior, and the governor of Colorado.

Neal Kemkar: At GE, we have 300,000 people operating in 180 countries. I want to boil up our experience into several megatrends.

The first is digitization. The number of connected devices will reach 50 billion by 2020. In a few years, we may all have personal air quality monitors in our pocket that tell you the levels of PM 2.5 in your exact neighborhood. How do we capture these terabytes of data?

Second is fossil fuel abundance. In the last decade, we have seen a tenfold increase in U.S. shale gas production and a 50 percent reduction in oil prices. Our collective challenge is ensuring that the resulting production and consumption are as efficient as possible. How does that interplay with that industry’s social license to operate?

The third is growing resource stress. We at GE believe climate change is real, the science is settled. Pollutants don’t respect boundaries, which raises the issue of state-federal relations and of course international relations as well.

Last is this idea of competitive clean energy. In the midst of digitization, fossil fuel abundance, and resource stress, we’ve also witnessed unprecedented innovation in the clean energy space. Costs have declined dramatically. Solar costs have come down 75 percent over the last decade. Wind power installed capacity has grown ten times.

More connected devices, fossil fuel abundance for the foreseeable future, intensifying resource stress that increasingly doesn’t respect boundaries, and competitive clean energy. These are the megatrends we face.

Stan Meiburg: Becky Keogh is vice president of the Environmental Council of the States. She has served as the director of the Arkansas Department of Environmental Quality since 2015.

Becky Keogh: One thing we need to remember is that states had environmental programs many years prior to the 1970s. Our agency has existed since the 1940s. And many issues were addressed not by a federal agency or a state but by cities.

Back then, we didn’t have the benefit of today’s technology, nor did we have the tens of thousands of trained professionals in environmental sciences and technologies that we do today. At our agency, we now have apps for many of our services, something that we never had before. That raises the question of how we channel this technology into our regulatory world, making sure that we are driving the technology in the direction we want it to go.

Some view EPA as sort of a helicopter parent to the states. Sometimes it’s a matter of letting our children grow up and understanding that these programs have matured. Many of these programs have delivered the outcomes that we originally sought. They’ve now graduated from college, many of them have jobs, they have their own children.

Looking at a case in Arkansas, we have regulations that declare that if you get a handful of water samples from a stream with a certain percentage of pollutants, then we will do something about it. Now we have monitors that take samples every 30 seconds and we’re trying to apply that data against a standard that used to be based on a set of eight samples over two seasons. Are the problems we are seeing today really an indication of a natural problem or is it just an indication that we know a lot more?

Stan Meiburg: Bob Martineau has been the commissioner of the Tennessee Department of Environment and Conservation since 2011. Bob is a past president of ECOS and worked in EPA’s Office of General Counsel.

Bob Martineau: Given limited resources, we don’t want to duplicate efforts. We shouldn’t be doing the same thing twice and checking every little bit of homework. So, how do we divide and conquer our limited resources and continue to build the federal-state relationship? It is important to keep in mind that first and foremost, it’s about environmental outcomes.

What we’re talking about in cooperative federalism is really that relationship of how, not necessarily the what. As to the what, as a general principle, people will agree we should breathe clean air and should have access to clean water. We may debate whether the standard ought to be so many parts per billion or that many parts per billion, but at the end of the day, the public wants to know if their air is clean, if their water is safe to drink, if the land around their house and their local school is safe to play on. How do we continue to prosper economically while ensuring that we have those?

A lot of people used to bristle at the term “co-regulator.” The common understanding is that states are not just another external stakeholder in the environmental regulatory enterprise; they are partners. We can’t develop a set of regulatory principles without looking at how they are going to be implemented in the field. The states, which are doing 90 percent or so of that implementation, need to think about the environmental outcomes we seek.

If we look at how cooperative federalism relates we have to differentiate between the regulatory side and the program implementation side and the enforcement side. States need flexibility to achieve their goals. At the same time, there are local, state, cross-state, and even international impacts to what happens in a particular state.

As we set air quality standards, such as new source performance standards, or water quality standards, we need to ensure that we have a race to the top, recognizing there is huge political pressure and economic pressure on given states to site that new plant.

So, as we frame that debate and add in private environmental governance, we can see that many people are making these decisions independent of any regulatory construct. Their shareholders are demanding it. Their customers are demanding it. Companies like Walmart have said, “We want X percentage of our energy to be renewable by a date certain.” Leadership in companies are driving marketplace decisionmaking regardless of what the regulatory requirements are.

Stan Meiburg: Vickie Patton is the general counsel of the Environmental Defense Fund and manages the organization’s national and regional clean air programs. Before coming to EDF, she worked as an attorney for EPA.

Vickie Patton: In my experience, there is no cookie-cutter approach to cooperative federalism. In fact, those people who have done this work for a long time find different ways to engage in problem-solving. As a result, we have made tremendous progress.

I’d like to make a few points. First, the “what” matters. What are we trying to achieve? It’s hard to have a debate about the “how” if we don’t have a shared understanding of the what. My view is the what ought to be delivering ambitious public health and environmental outcomes, while making continuous progress. We need to commit ourselves to what the American people expect, so that all communities benefit, especially those that have for far too long suffered a heavy burden of public health and environmental harms.

We can’t shy away from the most important challenge of our time, climate change. Support for climate action is at a zenith. In my own home state of Colorado we’re delivering cleaner energy, saving customers money, putting wind turbines in parts of rural Colorado that are keeping families on their farms. We’re manufacturing those turbines in rural parts of Colorado like Windsor and Pueblo that are gaining shared prosperity from this vibrant clean energy economy. Let’s roll up our sleeves and make sure that climate change is a critical part of this dialogue.

We’ve got to win the public trust. Whenever these discussions start, people are skeptical about where it is all headed, what the objectives really are. We’ve got to reach out to the public and commit to the highest levels of transparency and really inclusive dialogue. We’ve got to be thinking about adaptive federalism.

Finally, how do we create, collectively and individually, the platforms that recognize the environmental and public health outcomes that we need? How do we reward innovation that actually achieves more protective results? How do we create the platforms that reward inclusive dialogues and partnerships so that all across all the different levels of government and policymaking, public and private, we’re sending all of those right signals? There are a lot of people who are working together finding ways to deliver these kinds of results. It is good news, and America needs a little bit of good news.

Stan Meiburg: Several of you talked about how the nature of the relationship may have changed between federal and state environmental authorities. That poses a related question. Is the division of authority in the environmental space a zero-sum game? Does one have to go down for the other to go up?

Becky Keogh: We don’t want to have 50 states doing 50 different things. It makes sense to act collectively — we see that in regional groups and in national groups. It is best not deciding that one entity is better than the other to take on a certain responsibility but to instead discern which has the “most value-added methodology,” as my governor would say, to get the outcome that we need in our communities. One of the times I rely on EPA is the type of emergency where I need scientific capabilities that go beyond my state laboratory.

Bob Martineau: It isn’t a zero-sum game. The challenge has been avoiding duplication of effort and to decide what sovereign can act most efficiently. And then there are a whole bunch of things we haven’t been able to tackle because we haven’t shifted some of those resources to take on those new challenges. The debate today is the most efficient allocation of resources — how do we efficiently do the basic blocking and tackling, and then what resources can either the state provide or the federal government to take on new challenges.

Stan Meiburg: There are calls for statutory change to fully realize the potential for stronger state-federal relationships. Do any of you think that we need new law for this purpose?

Neal Kemkar: I’ll start with a short answer here — I hope not, because this issue is way too important to rely on Congress, a broken institution. What we have already is years of delegated authority to the federal executive branch from Congresses past. We have a lot of collective expertise. And when you add in our friends in the NGO community as well as in the regulated community, a lot of folks have been thinking about these issues for a long time. It goes back to resource allocation and using the existing authorities in smarter ways.

Barry Hill: You know, a lot depends upon where you sit as it relates to this whole area of environmental law and policy. I’m thinking in terms of communities where they are asking, Is the air clean? Is the water safe to drink? What about communities where the answer is “no” to everything? So, what would you prefer? Would you prefer the federal government, the strong arm of the federal government, or would you prefer that states do it — states are 50 laboratories of democracy but how do you define democracy? How do you ensure environmental justice for all not as a theory but as a practical matter? It’s not just the ederal government, it’s not just the state government, it’s not just corporations. It’s communities. How are they being impacted? That is the central question in the federal-state relationship.

Vickie Patton: There is ample room within existing law for people to improve upon achieving public health and environmental outcomes, while thinking about what sort of partnerships will help and how to most effectively achieve society’s goals. There are many people who have a lot of experience within the framework of existing law, finding all sorts of innovative ways to move forward.

Becky Keogh: And I would just add perhaps not statutory change at the federal level. Some of the state statutes, a lot of us are looking at opening up old statutes where they haven’t been refreshed. That’s something we’re doing in Arkansas. Other states have done the same. We haven’t just invested in the regulation or the statute for their own sake. We are spending a lot of time as we look at our programs through the lens of lean processes to make sure we don’t lose the core value of what we do as we speed up and we become more efficient and hopefully spend less money in delivering those outcomes.

Stan Meiburg: What do you see from your particular vantage point as the greatest challenge to implementing collaborative federalism?

Bob Martineau: The perception is that cooperative federalism means weakening environmental standards. That’s not what it is. But it’s caught up in the anti-regulatory mindset that we don’t want to over-regulate — it’s hindering business, it’s killing jobs. We’ve got to get agreement on the goals and maybe if we’re not there on that, about what the outcomes are. We need to have that debate first because then the question is how. There’s maybe less consensus on some of the goals now than we’ve had historically.

Back to the last question of reopening the statutes: what’s happened sometimes with the various amendments to the statutes over the years is that they have become more prescriptive. The idea was to set the goal, a maximum, for example, and let the states figure out how to achieve that max. Instead, each time the Clean Air Act was amended, it became much more prescriptive as to what had to be in that State Implementation Plan. So, those statutory provisions can be used as swords or shields as well.

The challenge of federalism is to agree on the basic goals, and then we need the trust to be less prescriptive on the day-to-day review of what the other entity is doing.

Vickie Patton: If there’s not a shared vision that we are seeking better public health outcomes and greater justice for the communities that have borne the burden of harmful impacts for far too long and meanwhile combating climate change — those are core central underpinning considerations — then I think there will be enormous public distrust.

There is another disruptor coming to the architecture of environmental law and policy and that is that every person is going to have a monitor in their pocket. The technology is already here. In the aftermath of Hurricane Harvey, EPA’s and Texas’s monitors were idled but Environmental Defense Fund deployed a lab-quality mobile monitor, communicating what we were finding to policymakers and the public. Think about a world where the parents in Flint had the easy ability to detect the lead in their water. Technology is going to be a game changer in holding all of us accountable.

Neal Kemkar: Vickie, that’s a great point. To me, the radical transparency that’s coming because of increased digitization and more people having more information, that’s the biggest challenge and opportunity to this Cooperative Federalism 2.0. I think back to my time working for the secretary of the interior during the oil spill, every night during the nightly news you had radical transparency of the oil flow real time. That changes the dynamic of the regulation. It makes the feds tend to be be more prescriptive, for example, “Well, no. Thou shalt have 2.15 blind shear rams on your blowout preventer,” or whatever.

With all this transparency, the challenge is going to be getting the balance right. So, one can imagine a world where people on an airplane are saying, “I want to know exactly the carbon output of this flight” so they can offset it. Or a corporate official saying, “I want to know the carbon footprint of my entire supply chain and I want to know it now.” And so, as we wrestle between the state and the federal control, we may be overtaken by events.

Bob Martineau: And it’s not only the transparency but it’s the 24-hour news cycle, it’s the instant information. Twenty years ago, you took a water sample and the results came back a month later. Today, you’ve got to have that answer two hours from now. People want to know, Can I drink the water? Can I walk outside if there’s an air incident? Do I need to evacuate? You can’t say, “We’re going to look at it and get back to you after we send this off to a lab on the other side of the country and we’ll write a report that’ll get edited by 38 people and you’ll see it in three months.” That’s not acceptable.

Becky Keogh: I recall working with city leaders in Little Rock on ozone. We were right below the standard, and some people believed things needed to be proactively addressed. And someone said, “Is it safe to breathe the air?” And to be frank, I don’t think our regulatory framework is set up to be instantaneous in response.

Barry Hill: Millennials and many corporations are very much concerned about climate change, and they are making decisions based on their concern. Why isn’t the federal leadership listening to the voices of all of these entities? And will it be better at the state level? And how does this administration talk to a state like California that’s very progressive as it relates to the issue of climate change? The biggest impediment is listening to the voices of all of the stakeholders, whoever they may be.

Audience question: The one thing I didn’t hear from the panel is where does the conversation restart. Because the conversation that we used to have very constructively since I grew up has broken down. We look at our two major parties and they not only aren’t really effectively talking to each other but the Republicans aren’t even talking effectively to themselves, and it’s not certain that the Democrats are doing that either.

One of the advantages of a federal system, if one is going to make one work, is that it has 50 laboratories with their sub-laboratories where experimentation in dealing with these questions can be going on, and if we had a system for articulating that up to the national level, that could be part of the solution.

However, our federalism has never really worked all that well from the get-go and it started with the fact that the Founders, for all the wonderful things they did, did not really grapple effectively with the question of states’ rights. And it’s understandable they didn’t because it all started with the states, they had the power, they had to be convinced even to allow a federal structure to emerge. And that’s plagued us all along.

My final lament is that when you look to the states at present, I don’t know where to look for a model. You can take on the one hand California, which became dysfunctional in its governance before the country did, and they’ve now become a lot more functional but they’ve done it mainly because the Republicans have taken themselves out of the conversation and the Democrats are bound and determined to keep them there if they can. Or you can look at Kansas, which has been working with a terrible model for eight years now, it’s been proven not to work, and a few people in the state are beginning to wake up to that but the people keep re-electing their government.

Vickie Patton: My only comment is that you’ve got a conversation happening right here. It’s up to all of us to have these conversations wherever we work. It’s a real challenge in this polarized world not to let ourselves just fall into a trap. We have to focus on what compels us to do this work, why we care about it, and find a way to have conversations that are uncomfortable with people that may not share our ideas and try to find common ground.

Stan Meiburg: Several of you talked about the potential of big data to be disruptive. I’d like to ask how — in your individual states or your companies or NGOs — are you looking at this challenge.

Vickie Patton: It’s a terrific opportunity. We have seen the impact of big data and advanced monitoring techniques in a bunch of different contexts. When you think about the recognition that there’s significant venting and leaking from oil and gas facilities, big data and monitoring have had a huge public health and environmental impact by revealing this serious pollution problem — making it far more salient. And advances in monitoring that have helped reveal this oil- and gasrelated pollution to the public and to policymakers have also catalyzed the deployment of solutions and policies that are sprinting to catch up.

We have a need to be really responsible with the information, but it does provide a tremendous opportunity to empower policymakers, private companies, and the public to improve public health and environmental outcomes. It’s a critical part of the next wave of environmental protections.

Becky Keogh: Our challenge will not be the data anymore. It will be the wisdom to know what data to actually base decisions on. Smart systems are not valuable if you’re not wise in how you use them. We have to make sure that we build credibility in those datasets so we can have frank and honest discussions about whether action is necessary or not.

Bob Martineau: I think big data has two aspects we need to consider. Consumers start asking how many kilowatts of electricity do you use to make your product, do you recycle, how much clean energy do you use in your process, because people will weigh that in their consumer purchasing decisions and who they invest in.

On the other side, there is the pressure of the 24-hour news cycle. Let’s say there is a pipe rupture or a discharge incident. As the media cover it, it’s really going to be incumbent on the public to educate themselves on how to manage that data, and sometimes an initial piece of information may be a valid indicator but it may not be. Suddenly there’s a huge public health crisis that turns out to be a lab sampling error.

Transparency is good. You want to be able to respond if there is a public health emergency. You don’t want to wait 30 days to find out you need to do something.

Becky Keogh: And I’ll add to that. The benefit of big data and technology is in a political world, as an engineer, and I speak to politicians all the time in our legislature, data generally will compel an answer. And so, you can depoliticize the conversation with data if you use it appropriately. You can remove the politics when you actually have facts, right? It also provides a bit of equality or perhaps addresses inequality in systems because now you have the information to show where those inequities exist and you can actually act on them.

Neal Kemkar: The good news for all of us is that there is a fierce competition going on in America’s boardrooms in the space of big data and advanced analytics, and the power of American innovation has been unleashed on this particular issue. We have what we call our new digital wind farms, which through both hardware and software — through improved asset performance — you’re able to operate 20 percent more efficiently, save about $100 million per farm.

And to take a different context, from the oil and gas space, the way we used to inspect pipelines, hydrostatic testing, you pressurized the pipe to see if it blew. Now we can use MRI technology on a “smart pig” that we run through the pipe to take a scan instead. You can imagine the environmental implications of that, when the regulations catch up. Similarly, for the outside of the pipe we can use drones to inspect 10 times faster at one tenth of the cost.

So when we’re talking about environmental regulation, let’s not just think of the statutes that we all grew up with and took in our environmental law survey classes but let’s think of brand new greenfield spaces, like how do we set the right framework for unmanned air systems so that when the commercial and technological ability to inspect a 400-mile pipeline via drone is there, that the regulations are in place to allow it.

Audience question: Josh Heltzer, First Environment. I’m just curious as to what the relationship is between the Environmental Council of the States, the National Governors Association, and, say, U.S. EPA or the federal government? Is there an interface among those organizations, either in an informal or formal manner?

Becky Keogh: ECOS evolved from the National Governors Association, and we continue to work with NGA on a number of initiatives. We also are working very closely with EPA. That was the intent of the Cooperative Federalism 2.0 paper, to provide information we thought would be helpful to define a road forward with the idea that we weren’t going to dictate the path nor would the federal government dictate it.

To your question, all that dialogue is important, and obviously one of the bases of ECOS is that as much as states are alike we are different. So our goal as an organization is to find our common issues and be able to advance those appropriately, allowing the governors and EPA to work with states to respect their needs — even if they don’t necessarily agree with my state or my governor’s perspective.

Stan Meiburg: And I would just note, to put on my old hat for just a minute, that this is not a partisan question because that kind of collaboration has been going on for a long time. When I was at EPA, Commissioner Thomas Burack of the New Hampshire Department of Environmental Services and I advanced collaborative federalism through E-Enterprise. That dialogue is going on pretty robustly.

Becky Keogh: I think states understand that to have the authority or trust or independence, there’s also accountability. We are working with our governors and with the federal EPA about how do we communicate our accountability to achieve agreedon outcomes.

Audience question: Just following on Neal’s point, I think it’s really interesting that this is the Environmental Law Institute, and lawyers base everything on precedent. The question came up earlier about whether you see any need for statutory change. I’ll just note most of our great environmental statutes were born out of crises. The crisis in Bhopal, India, helped lead to the Toxics Release Inventory and the Superfund Amendments and Reauthorization Act. You had Love Canal that led to CERCLA.

But we don’t tend to pass new laws anymore to address big problems. We might look to the states as being labs and yet the way cooperative federalism is set up, the state statutes tend to mirror the federal environmental statutes, and if a state gets out in front, then they’re put at a business disadvantage.

Stan Meiburg: Historically the worry about states was that somehow that if the federal oversight were not there, that the state would lag behind. It is going to be very interesting about what the response is now in the case where a state may move ahead — and I am thinking about California — and how the response to that is going to fit into the federalism framework.

At this time, let me not just summarize this panel but just make a couple of points.

One is that you’ve heard a lot of very innovative and thoughtful discussion about the potential effects of big data and technology and the 24-hour news cycle and what you might call hyper-transparency, and that these have both the potential to be quite disruptive in the way in which the federal-state relationship has worked, but there are opportunities involved as well, and that’s going to be a challenge in the years ahead.

I also wanted to make an observation pointing back to the comments about federal laws. They were very prescriptive and written that way for a couple of reasons, one of which was in the era in which they were created, there was a great deal of distrust between the legislative and the executive branch, and the legislative branch felt that if they did not make the laws very prescriptive that the executive branch would not implement and enforce them. So, that the issue of trust is there.

There was also a great deal of concern in public policy theory that without very prescriptive laws, that the agencies in charge with implementing them, and specifically EPA and the states’ agencies, would be captured by the entities that they regulated.

The idea of capture may seem like an antiquated notion these days, but the distrust became embedded in the very specificity of the statute, rightly and wrongly, and the problem with that of course is that if you have a very rigid statute and you don’t change it very much, like anything else, it can get a little long in the tooth.

Also, just simply note to close out that the answer to the question I asked about whether it is a zero-sum game, I was delighted to hear that nobody said it is. For the states to be strong, it’s not like the federal government has to be weak or vice versa. What you’d really like in an environmental system is two strong partners working effectively to produce environmental results.

And to pick up on the point that Vickie made, one of the challenges we face, the big challenge, is if we do not have some way of discussing and coming to a reasonable agreement on goals, then the discussion about means becomes even more difficult.

It is worth remembering that the Founders in the framing of the Constitution were not really concerned about producing efficient government. The fear on the part of the framers was that you would have tyrannical government, and so therefore, the effort was to produce moderate government — which is why you ended up with federalism structures and the separation of powers in the first place.

In an era in which things seem to happen in a 24-hour news cycle, this can sometimes produce great frustration. But it is probably worth recognizing that there may be some wisdom in not being able to react immediately to everything that comes right down the pike. TEF

HEADNOTE ❧ Over the decades, states have developed the expertise and capacity for ensuring environmental protection. With the Trump administration’s proposed downsizing of EPA’s budget and staffing and renewed focus on states, decisionmakers and stakeholders have a timely opportunity to rethink the paradigm of cooperative federalism and environmental protection.