Posted on August 23, 2017 by Robert J. Martineau Jr.
The cooperative federalism approach to environmental protection in this country has been a fundamental tenet of our federal environmental laws since the early 1970’s. In short, Congress passed laws, EPA wrote the regulations, and States sought delegation of those programs and implemented and enforced them. When those state programs were in their infancy EPA tended to have a strong oversight role and states often looked to EPA for technical support and guidance. EPA often limited the discretion of states in implementing those federal programs. As states programs matured, states developed their own expertise and often identified new and innovative ways to implement federal requirements and achieve desired outcomes. States are now authorized to implement over 90 percent of the federal programs and also take lead on most enforcement matters. Over time the federal state relations has slowly morphed from a parent –child relationship to one of an old married couple. A decade or so ago, EPA officials might have bristled at the notion of a coequal partnership, but no longer.
States are looking to continue to refine that relationship to help improve environmental outcomes in an efficient and cost effective way to help ensure we put limited resources to work in the most productive way. In June, the Environmental Council of the States (ECOS) issued a white paper entitled “Cooperative Federalism 2.0: Achieving and Maintaining a Clean Environment and Protecting Public Health”. Its purpose was to highlight an ongoing discussion of the relationship of federal/state environmental regulators. The paper is intended “to stimulate and advance” an important discussion of how “a recalibration of state and federal roles can lead to more effective environmental management at lower cost.”
This document has certainly fulfilled its intended purpose. Since the issuance of the paper, there has been extensive discussion by and between state and federal regulators, NGOs, industry groups, legislators and others on this topic. ECOS’ paper has served as the framework and focal point for that discussion.
ECOS’ paper sets forth nine principles on the roles and functions of EPA and the States under Cooperative Federalism in this modern era of the environmental protection enterprise. The paper sets out ECOS’ members’ views on what cooperative federalism should mean in the areas of:
1. Regulation development and setting national minimum standards to protect human health and the environment;
2. Implementing national regulatory programs;
3. Allowing flexibility in meeting those standards;
4. Engagement of other stakeholders in those implementation efforts;
6. Oversight by EPA of states implementation efforts
7. Interstate and regional environmental issues;
8. Scientific research and data gathering; and
9. Funding for federal and state programs.
The paper recognizes the many challenges of refining this relationship but the interest in and around this topic has fostered much thoughtful discussion and debate. ECOS’ recent STEP Conference in Washington, D.C. was devoted to this topic and more than 150 state and EPA regulators as well as NGOs, industry groups and academics shared their thoughts and ideas. The Environmental Law Institute also addressed this topic in an inaugural “Macbeth Dialogues” (named after the late Angus Macbeth, a longtime ACOEL member) in a “Chatham House” format. Discussion leaders included those from state agencies, former EPA staff, NGOs and academics. In addition, EPA senior staff and states agency officials have addressed how to refine the relationship in meetings at EPA Headquarters and several regional offices.
Some have explicitly suggested or inferred that this “Cooperative Federalism 2.0” discussion is a ruse for less environmental protection, or relaxing of standards. Certainly for ECOS’ members
’, that is not the case. Cooperative federalism does not equal deregulation or weakening environmental protection. While there may be separate conversations ongoing about the veracity of the effectiveness of certain rules, that is not what Cooperative Federalism 2.0 is about. It is about defining the respective roles and accomplishing the mission of protection of public health and the environment in a cost effective way that respects the different roles of the federal and state partners. As the ECOS’ paper notes in its conclusion, the ECOS member States “strongly believe that positive reforms and improvements to the bedrock of cooperative federalism are needed … to create and implement environmental protection programs worthy of 21st century challenges. States are eager to engage our federal partners, and others who have a keen interest in how the states and federal governments perform their roles, on how we can move forward consistent with these principles, in order to protect the environment and public health”.