Posted on May 19, 2020 by Jerry L. Anderson
Based on research from law professors at Harvard and Columbia, the New York Times reported this month that the Trump administration has reversed, or is in the process of reversing, almost 100 federal environmental regulations. The changes weaken federal protection across virtually every sector of environmental, energy, wildlife, and public lands law. While legal challenges to these rollbacks may lessen their impact, the Trump administration will at the very least have begun to turn the tide of federal environmental regulation.
Much commentary has centered around the negative implications of this federal regulatory contraction for the environment. The New York Times article, for example, quotes experts as predicting that the changes will “increase greenhouse gas emissions and lead to thousands of extra deaths from poor air quality each year.”
But could there be a more optimistic view of this tidal change in federal regulation, or at least a silver lining? One possibility is that the clear signals of federal retreat on environmental control could lead to a return to local responsibility for environmental quality tradeoffs.
The theory runs this way: Since the late 1960s, citizens have turned to the federal government to solve all of our environmental problems. The “environmental decade” of the 1970s ushered in an era of federal control over every type of environmental problem, e.g., water, air, wildlife, and waste disposal. In this area, as in many others, federal control has been virtually plenary, despite the retention of state agencies’ authority to enforce the federal mandates. Although many environmental acts reserve to the states the authority to enact stricter regulations, in many states federal regulation has become the ceiling, not the floor. See, e.g., Iowa Code Section 455.B.173(2)b, providing that state effluent limitations shall not be more stringent than those established by the EPA.
We know there were good reasons for introducing national level regulation. For one thing, states fighting for economic growth seemed unable, or unwilling, to impose the cost of environmental controls on the providers of jobs and taxes, engaging in a “race to the bottom.” But the unfortunate downside of 50 years of federal control has been that, at least in some jurisdictions, local users now feel a diminished (or nonexistent) sense of responsibility for those natural resources. Any environmental problem is now a federal problem, one the local community has little power to affect. Worse still, for many the EPA has become the bogeyman, the bad guy in Washington imposing onerous regulations on us poor locals.
So what if the bogeyman is gone? What if we view the rollback of federal authority as an effective invitation to turn back to those locals and say – “we’re giving this responsibility back to you.” Like the teenager going off to college – how will they respond when the parents are no longer looking over their shoulders?
Of course, I am painting with a broad brush here – I know there are many examples in which states have taken back the reins or acted to augment federal regulations. For example, some states moved quickly to protect wetlands left behind by limitations on federal control or enacted more expansive state versions of NEPA. Over the last couple of decades, state and local governments have taken the lead on issues such as climate change, when meaningful federal action was absent. Certainly, greater local control may be prevented or at least limited by preemption issues (either federal-state, or state-local). Moreover, for some environmental issues, spillover effects on other states absolutely cry out for federal intervention.
Nevertheless, it’s worth considering whether the extraordinary campaign of federal deregulation we are witnessing might cause a broader shift in our attitude about environmental issues. If federal control is pared back, to those areas where it’s absolutely necessary, is it possible that will we empower locals to come together once again, to start making their own decisions about how clean they want their air, water, and land to be?