“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.