The States' Role in Environmental Protection: The Debate Over
Almost all federal environmental laws divide the job of controlling pollution
between the federal government and the states. Some laws, like the Clean Air
Act, require the federal government to set the standards that sources of pollution
must meet and tell the states to find a way to meet the standards. Under other
statutes, such as the Clean Water.
How the states and the federal government divide
the job of protecting public health and the environment.
Act and the Resource Conservation and Recovery Act (dealing with hazardous
waste), the federal government sets requirements for polluters and then allows
states the option of running the day-to-day regulatory programs that implement
these requirements. In this system, for example, states write pollution permits
and bring enforcement actions against violators. The states are always free
to adopt more stringent regulatory requirements if they wish to do so. But
no state program can adopt less stringent requirements. If, in the course of
running its pollution control program, a state falls significantly short of
the benchmarks established by EPA, EPA can withdraw the state’s authority to
run the pollution program, and instead run the program itself. (In bureaucratic
parlance, this action is called the withdrawal of EPA’s “delegation” of authority.)
When Congress passed the major federal environmental statutes, it embraced
a strong federal role in pollution control because:
- uniform national standards crafted by the nation’s “best and brightest”
technical experts are efficient, avoiding the need to reinvent the wheel 50
- all citizens should receive equal protection;
- businesses should compete on a level playing field;
- states would avoid a “race to the bottom” in competing for new industries;
- pollution does not stop short at state lines and, in many places, strong
federal laws are the only way to control so-called “transboundary pollution.”
At the same time, Congress understood that many states might prefer to run
their own regulatory programs rather than having the federal government step
in. The combination of federal and state powers described above – known as
“cooperative federalism” – was the compromise resulting from the desire to maintain
a strong federal role in pollution control while at the same time giving the
states the opportunity to implement these national programs.
What People Are Fighting About
State environmental agencies are increasingly starved for resources, making
it difficult or even impossible to carry out their federal statutory mandates.
Some states lack not only resources but the political will to police local industries
who threaten to move elsewhere if the regulatory climate is not “friendly” to
business. EPA also suffers from limited resources and a failure of political
will, and has withdrawn or threatened to withdraw state delegations on only
a handful of occasions.
What’s At Stake
- Get equal protection no matter who we are or where we live
- National law is enforced at the local level
Many states resent their federal partner, engaging in open rebellion against
the “unfunded mandates” that are imposed on them by federal authorities. Business
lobbyists have persuaded legislatures in over half the states to pass laws prohibiting
state regulators from imposing requirements than are any stricter than the federal
requirements, making federal requirements the ceiling -- not the floor -- of
environmental protection. States and regulated industries also argue that “one-size-fits-all”
regulation saps the economy. They bristle at tough national standards and fight
to tailor regulations so they apply to “local conditions.”
Obviously, states differ in their approach to environmental protection. Some
do an outstanding job on specific programs – better, even, than the federal
EPA. Other states are dreadfully deficient. The result is that their citizens
are exposed to far higher levels of harmful pollutants than the federal government
deems safe. Many have reported that states try to attract business by offering
to relax environmental protections. Powerful corporate interests are more likely
to capture weak state bureaucracies than they are to capture even a weakened
central, federal agency.
Equally as troubling, EPA has never made an effort to gather data or develop
a template for the amount of resources states must commit to the implementation
of federally-delegated programs. The Agency does not have reliable information
about the size of state budgets for such programs, and passively accepts the
fact that such budgets are most often a product of a wide range of factors (e.g.,
population, economic health, local politics) that have absolutely nothing to
do with the regulatory burden (e.g., number of regulated facilities, scope and
depth of pollution problems, presence of nationally treasured natural resources)
the state must support. Without such information, EPA cannot explain to the
states in a fair and clear way what they must do to hold up their end of the
Decisions on the Table
- Will EPA step in when states falter?
- Will companies move to states where no one enforces the law?
- How sure can we be that there is an environmental “cop on the
For these reasons and because government agencies are as competitive as other
institutions, EPA and the states have an uneasy, and sometimes overtly hostile,
relationship. In an effort to improve what it calls the “federal/state partnership,”
EPA launched the National Environmental Performance Partnership System, or NEPPS,
some five years ago. The program allows states to cut their own individual
deals with EPA both with respect to how they spend federal program grants and
how they run their programs. The result is a patchwork of different oversight
regimes that makes no one happy. Some EPA regional offices maintain rigid oversight
that too often focuses on minutiae rather than ensuring strong protection of
public health and the environment. Other regional offices make life easier
for themselves by allowing the states to do what they wish, regardless of statutory
mandates, regional priorities, or past performance deficits. Neither result
fulfills the goals Congress had in mind when it divided the crucial job of improving
and safeguarding environmental quality between them.
In short, cooperative federalism has hit four basic stumbling blocks:
- states have not devoted sufficient resources to implementing federal environmental
- states lack the political will to enforce the law;
- states and the federal government engage in constant sniping that undermines
their ability to do their respective jobs;
- we do not have basic information that would allow us to address problems
with how the system is working.
Our approach, which would relax requirements for high-performing states and
tighten them for poor-performing ones, address each of these problems with cooperative
federalism as it exists today.
Strong federal standard-setting and oversight is as important today as it was
when Congress wrote cooperative
federalism into pollution control statutes. The weakening of federal authority
harms public health and weakens environmental protection. When the states fight
unfunded mandates, they fail to acknowledge the fact that they would be responsible
for protecting public health from the adverse effects of toxic pollutants; delivering
clean drinking water; safeguarding precious natural resources; and curbing transboundary
pollution whether or not the federal government played any role.
While it is certainly true that the federal government sometimes acts irresponsibly,
creating programs without bearing any fiscal responsibility, the vast majority
of federal environmental regulations is designed to preserve these crucial public
resources. Further, regulatory gaps brought about by drastic departures from
national standards result in hidden costs, and we have no reason to believe
that these costs are offset by the marginal inefficiencies of uniform requirements.
In a series of reports issued over the last few years, the National Academy
of Public Administration (NAPA) recommended that EPA continue to devolve authority
to the states, but that it adopt a system of “differential oversight,” whereby
it would give leeway to high-performing states, but keep poor performers on
a much shorter leash. NAPA is generally conservative in its outlook, and made
this recommendation as part of a study that was funded by Congress.
Despite initial enthusiasm for this proposal, EPA has never adopted it. EPA
is afraid to target poor state performers in public. To address this crisis
in environmental protection and the role of the states:
- Congress and the Administration should impose a system of accountable
devolution, periodically evaluating the states and placing them into categories
that reward good performance with federal deference but subject weaker state
programs to more rigorous review.
- EPA should develop a database that closely tracks existing
spending and performance by states that are running federal environmental
programs.EPA should develop guidelines for state environmental spending that
reflect the regulatory burden state agencies must support.
- EPA should have available teams of personnel able to take over
the worst state programs on short notice, using a system of “deterrence-based
withdrawal” to motivate states to improve.
- Congress must appropriate funding sufficient to allow EPA to
make these reforms.
It’s easy to write a law, and much harder to make sure it is implemented and
enforced, fairly and aggressively, throughout our vast country. Governments
at all levels struggle to be effective and efficient, and must remain accountable
to their citizens. In areas as important as protecting public health and the
environment, everyone – no matter where they live -- deserves equal protection.
Making states responsible for delivering on this crucial goal is a key part
of EPA’s mission.