“Move Not Away from Struggle, But from Stillness”

Posted on July 13, 2017 by Renee Cipriano

Out of struggle and challenges comes a brighter future.  For environmental practitioners, the time is now to engage in struggle. 

I witnessed firsthand the creation and evolution of the Environmental Council of the States (ECOS).  Back in 1994, ECOS was the brainchild of several state environmental commissioners, including Mary Gade, the then Director of the Illinois Environmental Protection Agency.  In ECOS’s early years, the federal-state relationship was evolving, and state regulatory sophistication could not be denied.  The path to create a strong state organization with meaning was not easy and the young organization was forced to deal many struggles coming into its own.  As Ms. Gade explained in a 1996 American Bar Association article published in Natural Resources & the Environment, Winter 1996, “[t]he states were coming of age.  The formation of ECOS is a quantum leap forward in the ongoing shift in the balance of responsibility for protecting the nation’s environment.” She continued, “ECOS may not seem at all exceptional, yet more than any other environmental organization, it embodies the rising environmental leadership of states and the long overdue transfer of power in the federal–state relationship.”

Challenges and struggles have characterized the federal-state partnership upon which the nation’s regulatory system was built. The formation of ECOS helped the states collaborate and deal with the struggles together head on.  Today, no question exists that states are primarily responsible for the administration of environmental laws in this country, assuming more than 96% of the delegable authorities under federal law.  The states are on the frontline of enforcement, permitting, innovation and streamlining efforts.  The public looks to them first for answers.  Industry relies on the states to be effective partners, balancing the needs of industry and the public while allowing industry to run operations efficiently and in compliance.

Over the life of ECOS, state environmental regulators have been delegated more responsibility for environmental protection, education and enforcement but the resources provided them have measurably decreased.  Federal monies dedicated to financially support state programs have declined and are jeopardized further by proposed budget cuts.  At the same time, state elected officials face their own budget crises.  In response, state environmental protection agencies are being challenged to operate with little to no state funding and instead rely on federal funding and increased fees imposed on regulated entities.

With funding issues looming larger today than ever, there is a need to revisit both our national approach to environmental protection and, whether we are effectively enlisting the federal-state partnership to avoid staff duplication, regulatory confusion and resource waste.  For example, states and stakeholders should be able to rely on the state’s implementation of federally approved state programs without facing contrary interpretations from U.S. EPA.  Some state decisions are scrutinized repeatedly, with no meaningful purpose or resulting benefit; sometimes years after decisions are made. Stakeholders should be able to expect that if U.S. EPA identifies a deficiency in the state administration of a delegated program, U.S EPA will act swiftly under the authority granted to it by Congress to demand a fix to deficiency and approve the state’s modification just as timely.  And states should be able to rely on U.S. EPA to ensure that state delegated programs it approves set a level playing field across the nation to avoid disadvantaging economic growth in one state simply because another state’s approved program does not quite meet U.S. EPA’s interpretation of federal standards.

This brings us to the current Administration’s work around regulatory reform.  See President Trump, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs (Jan. 30, 2017); President Trump, E.O. 13777, “Enforcing the Regulatory Reform Agenda” (Feb. 24, 2017); EPA, Evaluation of Existing Regulations (Apr. 13, 2017).  Although many see “regulatory reform” under a Pruitt U.S. EPA as the end of environmental protection, I prefer to see it as an opportunity to examine holistically our current environmental regulatory framework and identify innovative ways to build on our environmental successes.  Even more importantly, I also see it as an opportunity to reinvigorate the national conversation around the federal-state relationship and embrace more fully the unparalleled state leadership we have in our country.  There is a rightful place for both U.S. EPA and the states as we move towards addressing our future environmental challenges but we can no longer support or afford duplication and burden without purpose.

In June, 2017, ECOS issued a document entitled COOPERATIVE FEDERALISM 2.0: Achieving and maintaining a Clean Environmental and Protecting Public Health.  Under the leadership of Executive Director and General Counsel Alexandra Dunn, and through a consensus based process among members of ECOS, this blueprint for the future presents both the principles that should guide the federal-state relationship and lists the important “policy neutral issues” where application of cooperative federalism could be focused.  This document is not only insightful but timely and provides the opportunity for positive reforms that will allow the nation to continue its great work of environmental protection into the future.  It is a must read.

My yoga teacher always tells the class to “move away from struggle” when she is challenging us with new and different yoga moves. I find though, that unless I struggle, my moves will never improve.   Engaging in the process of change can be a struggle—from start to finish.  But we cannot do better if we don’t.  The national conversation is now, and we are only wasting our opportunity for an even better environmental regulatory system for the future if we decide to move away from struggle and move to stillness.

Big Party for the Chesapeake TMDL Appeal

Posted on October 28, 2014 by Ridgway Hall

Many Clean Water Act practitioners will have their eyes on the Third Circuit on November 18 when oral argument has been set on an appeal from a decision upholding EPA’s issuance of a multi-state Total Maximum Daily Load (TMDL) for the Chesapeake Bay and its tributaries.  The Chesapeake Bay TMDL, issued in December, 2010, is the biggest EPA has ever set, covering parts of 6 states and the District of Columbia. As I reported in a blog article a year ago on September 13, 2013, in a 99 page decision the Middle District of Pennsylvania upheld the TMDL against numerous challenges by the American Farm Bureau Federation, other agricultural trade associations and the American Home Builders Association. Those organizations appealed, and a flurry of intervenor and amicus briefs have been filed on both sides.

The issues raised by the appellants are whether EPA exceeded its statutory authority when (1) it set pollutant allocations for nitrogen, phosphorus and sediment on a watershed-wide basis, and then, by agreement with the states, subdivided them by state and by major river basin; and (2) it insisted that states provide “reasonable assurance” that they would implement measures reasonably calculated to achieve compliance with the TMDL within agreed-upon timetables.

As described in the district court decision, the Chesapeake Bay TMDL has a long history, including more than 25 years of cooperative but unsuccessful efforts by the Bay states, working together and with EPA, to design and implement programs to reduce the large amounts of nutrients and sediment flowing annually into the Bay.  This pollution has contributed to the decimation of oysters, blue crabs and other fish, destruction of hundreds of acres of bay grasses, and significant economic, recreational and cultural losses throughout the watershed.  Because of the inherently interstate nature of the pollution, and the inability of one state to stem pollution in another state, the states in 2007 asked EPA to set a multistate TMDL, which EPA did. At the heart of the legal dispute are issues of “cooperative federalism” – the proper roles for the states and EPA and the limits of EPA authority under Clean Water Act Section 303, which gives only minimal guidance on TMDL implementation. The district court decision addressed several issues of first impression and, in upholding EPA’s actions, provided a thoughtful analysis and helpful guidance.

The precedential significance of this case has not escaped states, cities and other interested parties elsewhere in the country. Briefs have been filed by intervening environmental groups, wastewater treatment agencies and municipal authorities in support of EPA. In addition at least 10 amicus briefs have been filed on behalf of over 100 other entities. A group of 21 attorneys general, mostly from western and Mississippi Valley states, filed a brief in support of the appellants. They were joined by a group of counties, and much later by a group of 39 Congressmen.  Amicus briefs were filed in support of EPA by the states of Virginia, Maryland, Delaware and the District of Columbia (all in the Chesapeake Watershed).  Also supporting EPA are a brief by the cities of New York, Baltimore, Philadelphia, Los Angeles, Chicago and San Francisco, and a separate brief for the City of Annapolis, plus two amicus briefs by groups of environmental organizations and a brief by 19 environmental law professors from around the country.

One of the interesting features of this case is that none of the EPA actions challenged by the appellants were forced by the agency on unwilling states. The “reasonable assurance” features are contained in “watershed implementation plans” drafted by each state. The deadlines are not inflexible, cannot be enforced by EPA, and were agreed to by the states.  In fact on June 16, 2014, all 6 Bay states, the District of Columbia and EPA signed a new Chesapeake Bay Watershed Agreement reaffirming their commitment to the TMDL and the implementation measures. So stay tuned! The courtroom will likely be SRO, and I’ll be back to you after a decision.

Homer's Odyssey Continues Without Cooperative Federalism

Posted on April 30, 2014 by Paul Seals

On April 29, 2014, Justice Ginsburg delivered the opinion of the Supreme Court in EPA v. EME Homer City Generation, L.P., 572 U.S._(2014) reversing the DC Circuit’s decision regarding the Transport Rule, also known as the Cross-State Air Pollution Rule (CSAPR), a rulemaking designed to address the significant contribution of upwind States to nonattainment of National Ambient Air Quality Standards in downwind States under the Good Neighbor Provision of the Clean Air Act (CAA).   In addition to upholding EPA’s cost-effective allocation of air pollutant emission reductions among upwind States as a permissible interpretation of the Good Neighbor Provision, the majority held that the CAA does not compel EPA to provide States with an opportunity to file a SIP after EPA has quantified the State’s interstate pollution obligations.  This opinion is a severe blow to cooperative federalism.

In the majority opinion, cooperative federalism was relegated to a single footnote, which was surprising given the issues for which certiorari was granted.  The second issue addressed in the briefs and argument – whether states are excused from adopting state implementation plans prohibiting emissions that “contribute significantly” to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s inter-state pollution obligations – provided the Supreme Court with an opportunity to address the relative health of cooperative federalism and whether the federalism bar should be raised or lowered in the context of the CAA. 

Justice Ginsburg’s footnote addressed Justice Scalia’s dissenting opinion in which he criticized the majority for “making hash of the Clean Air Act, transforming it from a program based on cooperative federalism to one of centralized federal control.”  EPA’s promulgation of federal implementation plans without providing the States with a meaningful opportunity to perform the emissions reductions through state implementation plans is inconsistent with the core principle and regulatory strategy of cooperative federalism embedded in the CAA – air pollution control at its source is the primary responsibility of States and local governments.   

Homer’s Odyssey continues.  For the next chapter, his ship will not sail under the fair winds of cooperative federalism.

Cooperative Federalism? We Don’t Need No Stinkin Cooperative Federalism

Posted on July 31, 2013 by Seth Jaffe

On Friday, July 19, the Court of Appeals for the 10th Circuit, in Oklahoma v. EPA, affirmed EPA’s rejection of Oklahoma’s state implementation plan setting forth its determination of the Best Available Retrofit Technology, or BART, to address regional haze.  The Court also affirmed EPA’s promulgation of a federal implementation plan in place of the Oklahoma SIP.  While rehearsing the Clean Air Act’s “cooperative federalism” approach, the Court seemed more focused on deference to EPA’s technical assessment of the SIP than on any obligation by EPA to cooperate with states.

"Given that the statute mandates that the EPA must ensure SIPs comply with the statute, we fail to see how the EPA would be without the authority to review BART determinations for compliance with the guidelines.
                                                            ***
While the legislative history may evidence an intent to prevent the EPA from directly making those BART decisions, it does not necessarily evidence an intent to deprive the EPA of any authority to ensure that these BART decisions comply with the statute."

Judge Kelly dissented.  As he noted, while the courts normally grant deference to EPA’s decisions, such deference is appropriately limited where “EPA rejected Oklahoma’s evidentiary support with no clear evidence of its own to support its contrary conclusion.”  Judge Kelly also noted that, even in a statute relying substantially on state implementation, the amount of power given to the states to implement the regional haze program is particularly evident.

I don’t know whether Oklahoma will seeking rehearing en banc.  (It’s difficult to imagine that the Supreme Court would be interested in hearing this case.)  I do know that cooperation is in the eye of the beholder.