As the nation celebrates the 50th anniversary of the Clean Water Act, a law rooted in the tenets of cooperative federalism, the 50 states, District of Columbia, and territories are leaning forward to strengthen partnerships, and modernize the delivery of environmental protection to meet ongoing and emerging challenges.

This partnership must continue to uphold principles such as science-based national standards and neighborhood solutions with state, tribal, regional, and private-sector leadership. As expectations for equity, climate resilience, and public transparency grow, there is new urgency for federal funding and technical assistance, as well as accountability and enforcement at all levels.

States stand on the front lines of implementing the nation’s environmental laws, administering more than 90 percent of delegable programs. CWA permitting, water quality standards, infrastructure planning, financing, and prioritization all depend on states. In turn, the states know their success depends on federal and other partnerships. In the age of information, three areas for improvement present themselves.

The first is data management, information exchange, and new technologies for monitoring and compliance assurance. The CWA’s noble goals for “fishable and swimmable” bodies and maintaining the “chemical, physical, and biological integrity” of the nation’s waters put a premium on developing sharper and smarter science-based tools and methods to understand pollutants and track the status of waterways. Nowhere is this more relevant than with today’s threat of PFAS chemicals, which threaten people and ecosystems in quantities as miniscule as parts-per-trillion and quadrillion. Modernization of EPA’s Integrated Compliance Information System and Safe Drinking Water Information System should be accelerated in close partnership with states and tribes. Drones and other unmanned aerial vehicles are increasingly essential for states to prevent and respond to environmental and public safety hazards, such as floods, spills, dam failures, and other infrastructure challenges from extreme weather and sea-level rise.

A silver-lining lesson from Covid lockdowns is that off-site, video-enhanced compliance monitoring can help supplement—but not replace—on-site inspections. Bio-monitoring for viruses in sewage to prevent outbreaks in congregate housing shows great promise for environmental protection. Another growing need is environmental justice screening and mapping tools to identify disproportionate impacts based on watershed stressors and health risks in overburdened and underserved communities lacking access to clean and affordable water.

Infrastructure and core program funding also merit attention. States and communities have historic opportunities with the new bipartisan infrastructure law’s funding for CWA and Safe Drinking Water Act state revolving fund and grants programs. Congress and EPA must provide administrative flexibility to the states on cross-cutting requirements, avoid undermining the state revolving fund programs, and continue to embrace climate resilience, green infrastructure, and the energy-water nexus that helps reduce energy consumption and greenhouse gas emissions in the water sector.

Categorical grants for state administration of CWA programs are as essential as ever and should continue to rise. Now is also the time for Congress to revisit the old allotment formula for state nonpoint source program grants to address a growing need to prevent runoff, one of water’s greatest remaining challenges. And a way to make real progress on the CWA’s “no net loss of wetlands” goal is for EPA to significantly boost state wetland program grants to support their capacity to protect wetlands and other waters that may not receive the same level of CWA regulation, given recent and upcoming court decisions citing the major questions doctrine.

Finally, policymakers should enhance innovation and collaboration.EPA, other federal agencies, and states can accelerate results with watershed-based permitting, pay-for-performance procurement, and private-sector conservation finance strategies. With proper safeguards in place to ensure the polluter pays and double-counting is avoided, why not make it easier for corporations and communities to advance their environmental, social, and governance goals by investing in green banks, blue infrastructure carbon sequestration, and other supplemental environmental projects? The water sector should continue to advance integrated “one water” strategies, such as the national Water Reuse Action Plan adopted by EPA and other federal agencies in 2020 and recognized in the bipartisan infrastructure law, with innovative partnerships and treatment technologies for this precious resource. Water program managers must work together, in close coordination with state and local leaders, to fight waste, recognizing every drop counts in the face of drought, wildfire, and other threats to water security.

As federal courts, agencies, and citizens turn increasingly to the states for environmental protection, it is clear that improved information, infrastructure, and innovation under the CWA programs will help deliver the promise of cleaner, healthier, and more resilient waters for the next 50 years and beyond.

Ben Grumbles is executive director of the Environmental Council of the States, the national nonprofit, nonpartisan association of state and territorial environmental agency leaders. https://www.ecos.org/.

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.

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.

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

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.

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.

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.