State, Local Officials Sound Alarm on Federal Funding and Staff Cuts
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
3
breggin

The new administration’s actions in freezing federal funding, cutting agency staff, eradicating programs, and promising draconian future budget cuts has mobilized state and local environmental officials to push back. Numerous established professional groups—whose members include state agency leaders as well as tens of thousands of professionals who manage wastewater, drinking water, solid and hazardous waste, air pollution, hydropower, and soil quality—have issued letters and statements about the critical importance of federal funding.

A statement by the Environmental Council of the States, whose members are both Republican and Democratic agency leaders, underscores that “states carry out more than 90 percent of the nation’s federal environmental laws” and count on Congress to provide support through U.S. EPA’s partnerships and grants.

Similarly, nine environmental professional associations, including the National Association of Clean Air Agencies, sent a letter to congressional leaders emphasizing that to “achieve clean air, water, and land under cooperative federalism, Congress must provide funding leadership.” The letter asserts: “Cutting funds that support our programs would have uncountable unintended consequences.”

It is not surprising that associations of state and local environmental officials are willing to enter the fray. In a 1994 book, David Arnold and Jeremy Plant observe that these associations “play a role no one else plays in the operation of the American political system.” They explain: “By virtue of their membership base, these associations are as close as one can come to government without being government.” They further note that “no other organizations can claim to speak for public officials while at the same time claiming the freedom of expression granted to all voluntary organizations in American public life.”

The associations’ missives cite myriad programs in jeopardy due to funding cuts, including efforts to address emerging contaminants, nonpoint source nutrient reduction, and air pollution from wildfires. For example, 10 associations, whose members include professionals who operate over 65,000 utilities, such as the Association of Metropolitan Water Agencies, warned the new EPA administrator that a “reduction in federal funds would be catastrophic to local water infrastructure.” Their letter emphasizes the essential functions states perform, such as project permitting and compliance inspections. In no uncertain terms, the letter forewarns: “Should water infrastructure under investment continue, alongside a reduction in the states and EPA’s capacity, our nation’s water systems will be increasingly vulnerable to natural and man-made disasters.”

Similarly, the National Association of Conservation Districts, whose members include thousands of local government agencies, issued a February report highlighting the “widespread impacts on producers, conservation, and local economies” of the federal funding freezes. The report calls for continued support of the locally led conservation delivery system, which it characterizes as “vital” for “sustaining the health and productivity of our lands and waters.” Its report also cites delays in infrastructure projects to “repair high-hazard dams, recover from and mitigate future impacts of wildfires, and replace culverts and other water systems to maintain water quality.”

Several of the associations also emphasize the deleterious effects of federal staffing cuts. The National Water Resources Association—whose members include agriculture and municipal water agencies and other entities that provide water to 50 million individuals, families, agricultural producers, and other industries—urged in a letter to the Bureau of Reclamation’s acting commissioner that he carefully consider “preserving mission-critical personnel who are vital to the agency’s operations of water delivery and hydropower production,” noting that their “institutional knowledge and technical skills . . . are not easily replaced.” To mitigate harms resulting from staff reductions, the letter suggests that irrigation districts could be authorized to assume facility operations in certain cases and that federal employees could be converted to irrigation district personnel.

The NACD report similarly concludes that U.S. Department of Agriculture staff terminations, staffing shortages, and “future potential workforce reductions” are undermining the “ability to provide quality and timely services to farmers, ranchers, and forest stewards across the country.”

It remains to be seen whether the willingness of professionals to take a stand will influence the administration’s ongoing funding decisions or 2026 budget. There will be opportunities to heed their warnings, however, because the continuing resolution passed by Congress in March does not provide detailed instructions on how to use the funds. Consequently, in the coming months the administration will be able to reallocate funds and increase or decrease support for specific programs.

State, Local Officials Sound Alarm on Federal Funding and Staff Cuts

Time for States to Flex Their Legal Muscles
Author
Michael B. Gerrard - Columbia University
Columbia University
Current Issue
Issue
2
Parent Article

In these dark several years ahead, with all three branches of the federal government moving backwards on environmental protection, the states can do much to stem the retreat.

With only a few exceptions, federal environmental standards are the floor, not the ceiling. States may impose stronger requirements. Though the Supreme Court in its 2023 decision in Sackett v. EPA severely limited the coverage of the Clean Water Act, states are free to protect their own wetlands. States may require the cleanup of contaminated sites that EPA deems of low priority. The Federal Power Act and the Natural Gas Act give states broad authority over power plants and natural gas extraction within their borders. States may adopt their own lists of endangered species. States set their own zoning and building codes. States and municipalities determine where wind and solar farms can be built, and states decide where electric transmission lines can go.

Some state actions can have important impacts beyond their borders. Notable here are Renewable Portfolio Standards. RPSs are state rules that a certain percentage of the electricity sold within the state come from clean sources. If generators in a state without an RPS want to sell their power to a state that has one—such as Idaho to California, or Indiana to Illinois—they must meet the importing state’s RPS. This has led to a considerable increase in wind and solar in the non-RPS states.

While the federal government sets the national fuel economy and emissions standards for motor vehicles, California can impose stronger standards with a federal waiver, and other states may then adopt the California standards. States with about 40 percent of the automobile market have usually gone along. The Biden administration granted the needed waivers, which help drive the transition to electric vehicles. Trump has vowed to revoke the waivers; their fate will be battled out in court.

Even without the waivers, states can do much to advance EVs. They can build out their networks of public charging stations and require parking garages and lots to install chargers. They can make their own fleets electric. They can provide their own subsidies for EV purchases. As California has done, they can try to reach agreements with vehicle manufacturers to make EVs regardless of what happens in Washington.

EVs, data centers, and many other uses will require much more electricity. New York has been a leader in preventing its municipalities from enacting ordinances that block the construction of the wind, solar and transmission that will supply the needed clean power.

Of the six states with the largest populations, three—California, New York, and Illinois—are solidly blue. They have so much market power that their actions can have nationwide impacts. States may adopt their own energy efficiency standards for appliances where there are no federal standards; California for many years spurred advances in refrigerators until the Department of Energy began imposing its even stronger standards. Many appliances still lack federal standards.

States can also use their purchasing power to require some of the items they buy in large quantities, like cement and steel, to come from clean production methods. Their public pension funds can invest in clean rather than dirty industries.

New California laws require companies that do business there to disclose their direct and indirect greenhouse gas emissions and their climate vulnerabilities. These laws are stronger than the Securities and Exchange Commission’s disclosure regulations, and become much more important when the SEC rules disappear under Trump. The California laws are under attack in court, but similar laws are under consideration in New York.

Many states are fighting to hold fossil fuel companies financially accountable for their roles in the climate crisis. Eight states and 18 counties and cities have sued these companies for climate deception; some of these cases have been working their way through the courts since 2017. New York and Vermont have adopted “climate superfund” laws that would assess fossil fuel companies for their past roles. These, too, will have their days (or years) in court.

Building codes, which are mostly creatures of state law, are powerful ways to require buildings to be energy efficient, to have solar panels or greenery on their roofs, to be resilient to floods and wildfires, and otherwise both to be climate-friendly and to help advance technological progress.

Acting together, states can adopt important programs such as the Regional Greenhouse Gas Initiative and the Western Climate Initiative. Similar programs on renewable fuels have been under discussion. With all of these, and much else, the state politics of the moment are key factors in what is and is not adopted. But with the federal government pulling back for now, state action is all the more essential.

Michael B. Gerrard is a professor at Columbia Law School and founder and faculty director of the Sabin Center for Climate Change Law. Among his books is the 2019 ELI Press book Legal Pathways to Deep Decarbonization in the United States (co-edited with John Dernbach).

States and Localities Embrace Community Benefits Agreements
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
2
breggin

Community benefits agreements are contracts between project developers and local coalitions. They are traditionally a private matter. Increasingly, however, states and cities are staking out a role as regulators, champions, and signatories to CBAs.

The first such high-profile CBA was negotiated for the development of the former Staples Center in Los Angeles and, over twenty years later, CBAs continue to be used in connection with economic development projects. But they also are employed in a range of other contexts including landfills, fossil fuel infrastructure, transportation, retail development and, most recently, clean energy infrastructure.

No two CBAs are alike. As a Sabin Center for Climate Change Law report notes, the agreements are “highly customizable in form and content” and tailored to “mitigate the specific impacts of a project.” Accordingly, the types of benefits provided vary widely and can pertain, for example, to wages, affordable housing, and community resources such as parks and childcare centers.

CBAs potentially offer something for everyone. For communities, they can be a vehicle for securing short- and long-term benefits that mitigate negative project effects such as increased congestion and higher rents. According to a World Resources Institute study, the regular use of CBAs in Detroit has “started to level the playing field between communities and developers by giving community members a seat at the table.”

For developers, CBAs provide a mechanism for garnering community support, which in turn can make it easier to obtain state and local government approvals and avert public protests and lengthy litigation.

State and local governments also stand to gain. A Department of Energy Toolkit concludes,“CBAs pivot around local and state government officials: since governments need support from their constituencies and developers need government support for items like zoning approvals.” Similarly, the Local Infrastructure Hub explains: “CBAs can help local government officials make informed choices about potential projects because they provide evidence of community support.”

Perspectives vary, however, as to the advantages and disadvantages of government involvement in CBAs. For example, according to the Hub, developers are more likely to be held accountable for delivering on promised benefits when a local government approves a CBA. And the Sabin Center report recommends that developers “aim for at least one of the counterparties to be a public entity,” which “generally provides great-
er certainty in the approval process than an agreement with private parties alone.”

In contrast, Albany Law Professor Edward De Barbieri warns that government involvement can limit the scope of providable benefits. He explains that Supreme Court precedent holds that the conditions a government imposes on a development project “must have an ‘essential nexus’ to a legitimate state interest” and “have ‘rough proportionality’ to the extent and impact of the proposed development.”

Nevertheless, some states mandate CBAs in specific situations, including New Jersey, which requires large project developers to negotiate CBAs if they participate in particular tax incentive programs. The law outlines a process that includes at least one public hearing and the creation of a community advisory committee to oversee implementation and ensure compliance.

California takes another approach as part of its Cleanup in Vulnerable Communities Initiative enacted in 2021.The Initiative’s program requires parties responsible for hazardous waste site cleanups to negotiate CBAs, in addition to adopting mandatory mitigation.

Recently, at least four states have enacted legislation that requires some type of CBA as part of permitting certain renewable energy projects. The Institute for Energy Justice explains that these requirements, which have been enacted in Michigan, California, Connecticut, and Maine, “tend to be interwoven with changes in how renewable energy projects are permitted.”

Local governments are also adopting CBA mandates. Detroit was first out of the block in 2016 in requiring developers to enter CBAs for large projects that receive significant public benefits. The ordinance establishes a government-directed process that includes creation of “neighborhood advisory councils.” Since that time additional cities have enacted CBA requirements for projects that receive public financial support, such as grants and tax increment financing, including St. Petersburg in 2021 and Cleveland in 2022.

Even in states and cities that do not require them, governmental entities are supporting CBAs and appear likely to continue to do so through means such as informing community coalitions about proposed projects; educating developers about CBA benefits; and encouraging developers to negotiate fairly with responsible community coalitions.

States and Localities Embrace Community Benefits Agreements

Climate Pollution Reduction Grants Jump-Start State and Local Plans
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
6
breggin

As the Biden administration winds down, state and local efforts to reduce greenhouse gas emissions are ramping up—fueled by the EPA’s Climate Pollution Reduction Grant Program. The Inflation Reduction Act appropriated close to $5 billion to support states, territories, municipalities, air pollution control agencies, and tribes in planning and implementing greenhouse gas reductions.

The first phase of the CPRG program provides $250 million in noncompetitive planning grants for development of Priority Climate Action Plans and Comprehensive Climate Action Plans. The second phase provides over $4 billion in competitive grants for climate plan implementation.

Key planning grant deliverables for states and metropolitan statistical areas (MSAs) are spread over four years. The formula used for awarding non-competitive grants provided $3 million to each of the 50 states, the District of Columbia, and Puerto Rico. In addition, $1 million was available to each of the 67 most populous MSAs. Funding was also allocated to tribes and territories.

In total, 45 states, DC, Puerto Rico, and 82 MSAs received grants. Only five states declined. These included Florida—a state projected in the scientific literature to be equally impacted by all three components of climate risk: hazards, exposure, and vulnerability. Several MSAs within Florida, however, received planning grant support. The other states that did not partake in the program are Iowa, Kentucky, South Dakota, and Wyoming.

EPA guidance directs that PCAPs should include “a focused list of near-term, high-priority, implementation-ready measures” as well as components such as a greenhouse gas inventory, quantified reduction measures, and a low-income and disadvantaged communities benefits analysis.

RMI, Evergreen Collaborative, and Climate XChange reviewed all 47 PCAPs and estimated that states engaged close to 16,000 stakeholders in developing their plans. As a general matter, RMI concluded that “states are correctly focusing on many of the biggest problems”—with the largest number of reduction measures aimed at the transportation sector. RMI flagged, however, that only 27 plans addressed the industrial sector even though its emissions are greater than other sectors, such as buildings, that received more PCAP attention.

Furthermore, RMI points out that “very few states included regulatory measures,” which it posits could be due to grantees opting for “much more politically popular” carrots versus sticks; lacking necessary regulatory authority; or interpreting EPA guidance to require a focus on shovel-ready projects. RMI also observed that numerous plans relied on strategies focused not only on climate but economic and health benefits, which in certain states could make plans “more politically palatable.”

Planning grant recipients are now in the process of developing their broader CCAPs, which EPA directs should include all “significant” emission sources, sinks, and sectors in their states or MSAs. Additional plan elements include, for example, long-term emission-reduction goals and strategies and a benefits analysis for the full population covered by the plan as well as for low-income and disadvantaged communities.

Grants for implementing climate plans are also in the works. In July, EPA announced grants to 25 recipients, including 13 states, 11 municipalities, and one tribe. EPA estimates the implementation projects in aggregate will result in reductions of 148 million metric tons of carbon dioxide equivalent by 2030 and 971 metric tons by 2050. (EPA provided implementation grants to tribes and territories on a separate track).

Eight of the selected grantees are coalitions, including the metropolitan planning organization for central Arkansas, which partnered with the city of Fort Smith and the Northwest Arkansas Regional Planning Commission. The city’s Joshua Robertson says they will start with shovel-ready projects that include installation of seven new electric vehicle charging sites located on public property but owned and operated by investor-owned utility Francis Energy.

A public housing solar array is also teed up, which is anticipated to offset over 90 percent of residents’ utility bills. Another project will restore three miles of overgrown alleyways to make it easier for students to safely walk and bike to school, thereby reducing car idling in pickup and drop-off lanes. Robertson calls the $99,999,999 grant “transformative” but emphasizes that the implementation measures stay true to the state’s popular “Natural State” nickname, quipping: “We did it the Arkansas way.”

In fact, the ability of states and MSAs to tailor their federally funded climate plans to their specific circumstances and priorities may be the key to long-term implementation success.

Climate Pollution Reduction Grants Jump-Start State and Local Plans

State and City Food Waste Reduction Goals: Context, Best Practices, and Precedents
Author
Carol Adaire Jones
Date Released
January 2024
Cover Page

ELI’s Food Waste Initiative is publishing a Research Brief Series to present takeaways from the Initiative’s research, spanning a range of topics important to food waste prevention, recovery, and recycling. To access other research briefs in the series, visit: https://www.eli.org/food-waste-initiative/publicationsState and City Food Waste Reduction Goals: Context, Best Practices, and Precedents reviews the status of food waste reduction goals in the United States.