DEFINING AND IMPLEMENTING EFFECTIVE FEDERAL/STATE LOCAL RELATIONSHIPS: THE U.S. EXPERIENCE

L.A. DEHIHNS, III

Deputy Regional Administrator, U.S. Environmental Protection Agency, Region IV, 345 Courtland Street, Atlanta, Georgia 30365

SUMMARY

The Federal Government’s relationship with States on enforcing the nation’s environmental laws is currently very good. It hasn’t always been that way. The U.S. Congress enacted federal legislation beginning around 1970 to address a new environmental ethic in the U.S. and to assert federal leadership in the environmental arena because of uneven application of existing laws by the state. EPA now has a framework for managing environmental compliance activities with the States. Those relationships are an important part of the future effort of enforcing compliance with environmental laws in the 1990s.

1.0 OVERVIEW OF FEDERAL AND STATE ROLES IN REGULATION

For most of the history of the United States, the lead role in environmental protection was assigned or left to states and their political subdivisions. They led both in controlling pollution and land use. The Federal Government was always active in preserving wilderness and wildlife and in providing parks largely because of its immense land holdings. It was not until the mid-1950s that the Federal Government mounted a significant water quality program and not until the early 1960s did it become involved with air pollution. (CEQ Report 1971, 1985) The Federal Government’s role in national pollution leadership escalated substantially in 1970, with the effective date of the National Environmental Policy Act in January, the Earth Day celebration in April, the formation of EPA in December, and the enactment of the Clean Air Act in December.

The appropriate role for the Federal Government in environmental legislation needs to be understood first in the context of the U.S. Constitution. The Federal Government, according to familiar constitutional theory, is a creature of limited authority, able to act only on the basis of specific enumerated powers. The “commerce” clause of the U.S. Constitution grants Congress power “to regulate commerce…among the several States.” Article I, Sec. 8.

It is from this particular provision that the strongest support comes for the current set of federal environmental laws in the U.S. The application of the Commerce Clause to the environmental arena results in a picture of congressional power that appears practically unbounded in the control over the typical areas of pollution. For example, the emission of air pollutants may be regulated on the theory that since “ambient air” cannot be confined to the borders of a state, emitted particles may be seen as themselves constituting articles moving in commerce and hence directly subject to regulation.

Air pollution control is also supported by its impact on other branches of interstate commerce. The congressional findings in the Clean Air Act itself say:

The growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation. (Federal Environmental Law, p.24)

Similar theories are applicable to water pollution as it relates to navigability of waterways as well as recreational and interstate travel impacts. These same sorts of theories in time came to support regulation of pesticides, solid and hazardous waste, toxics, and other forms of pollution.

It is difficult to imagine potential problems of pollution that have not been reached by federal control. The interrelationship of environmental problems, the recognition that ecological damage in one area may well have “ecosystem” effects which extend well beyond the point of initial intrusion, and the inevitable economic impact of pollution control – with the possibility of competitive havens if “intrastate” activities are excepted from control – all combine to present an extremely broad Commerce Clause base for congressional control of pollution wherever and however it occurs. (Federal Environmental law, p. 27)

Our Constitution does begin to address the proper allocation of roles between state and federal levels of government in controlling pollution concerns common to both. While Congress has the “commerce” powers discussed earlier, the States retain all powers “not delegated to the United States.” Tenth Amendment U.S. Constitution. This constitutional issue usually manifests itself in pollution control legislation where Congress has acted to control a problem and states want to exercise authority over the problem as well. Except when the Federal Government pre-exempts states from acting, many federal environmental statutes expressly reserve to the States the right to be more stringent than EPA. That action by Congress allows EPA and the States to fashion the necessary working relationships without constant conflict over the appropriate approach to the vast array of environmental problems facing the country.

In light of this constitutional setting, when the major environmental laws were passed in the 1970s, the Congress observed that States had uneven and, in some cases inadequate, capability to undertake aggressive, effective environmental protection programs. Legislators felt, too, that some states might be motivated more by economic rivalry than by the environmental ethic, and that the resulting competition would threaten the national cleanup that most considered essential. Consequently, these laws assigned to the Federal Government, in the institution of EPA, most of the key functions involved in the design and delivery of environmental services. Where states were involved, they were assigned carefully circumscribed functions.

For example, Congressional concerns about eh ability of States to adequately enforce water pollution violations is seen in the legislative history of the Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500. The Senate committee, concerned about poor enforcement under prior Federal Water Pollution laws and drawing on their experience in considering the Clean Air Act of 1970, concluded:

“…the enforcement presence of the Federal government shall be concurrent with the enforcement powers of the States. The Committee does not intend this jurisdiction of the Federal government to supplant state enforcement. Rather the Committee intends that the enforcement power of the Federal government be available in cases where States and other appropriate enforcement agencies are not acting expeditiously and vigorously to enforce control requirements.

The Committee again, however, notes that the authority of the Federal Government should be used judiciously by the Administrator in those cases deserving Federal action because of their national character, scope, or seriousness. The Committee intends the great volume of enforcement actions be brought by the State.” (U.S. Code Cong. and Admin. News, Vol. 2, p. 3730, 1972).

With such statutory backing, and with public expectation reinforcing the need for a strong, central environmental authority, it is not surprising that we at the federal level soon concluded that EPA, rather than the states, was the critical vehicle for preserving the integrity of the Nation’s air, water, and land resources.

We are the in the Nineties now, and EPA has recognized the re-emergence of states as central players in the environmental movement. For one thing, the Congress has now stipulated that the lion’s share of the administration of environmental statues will be carried on by states. Right now, most of the responsibilities eligible to be delegated by EPA are being managed successfully by the States. Also, state staffs and authorities have grown enormously in both dimension and sophistication since 1970. We know, for example, that for every person employed by EPA, many times more are employed by the states and localities in the administration of environmental programs; and these people are, by all accounts, highly motivated and well-trained.

This maturing of responsible action by the States has made EPA recognize that states must continue to play a much larger and distinct role. Workers at the federal, state, and local level are all part of a complex and interdependent national network for environmental protection. The essential conceptual work of refining roles to ensure that the States and EPA work effectively together is a dynamic process as decentralization constantly takes place.

Most of our environmental statues provide for delegation to states of the lead role for day-to-day program operations, including enforcement. To discharge their responsibility, States now write the permits, perform the inspections, and take necessary action to ensure that individual pollution sources comply with applicable national standards. States must now also report accurately on environmental progress, meet commitments on use of federal funds, and make consistently sound environmental decisions that justify public confidence.

EPA, on the other hand, remains accountable to the Congress and the President for national environmental progress. It will always retain those functions related to program direction, coordination, and consistency that are better performed at the national level. EPA must continue to set the environmental standards that are the framework on which state programs are built. EPA must apply its critical mass of central resources to conduct research, to develop tools for use in the field, and to provide technical services where needed to avoid wasteful, duplicative investment by the States. EPA must provide the residual enforcement clout to make sure compliance is achieved in the most environmentally significant areas, often playing the role of the “gorilla in the closet” to foster stronger state enforcement efforts. And, to fulfill its accountability for national environmental progress, EPA must conduct constructive oversight of state programs.

Strong state programs result in environmental improvement and make EPA successful. A technically proficient EPA, with public support and credibility, helps the state in an operational sense and gives the public confidence in all environmental control programs. Clearly, one of EPA’s major goals must be to bring about conditions in which states can be most successful in their daily management of national environmental programs.

2.0 HISTORICAL PERSPECTIVE IN FEDERAL/STATE RELATIONSHIP IN ENFORCEMENT

Delegated states have the lead responsibility for compliance and enforcement activities, and EPA expects delegated states to conduct strong compliance and enforcement programs. The Agency’s enforcement role is shifting from a primary focus on performing inspections and taking enforcement actions to an emphasis on conducting reviews and evaluations and providing states with guidance and technical assistance, in order to assure adequate performance of state compliance and enforcement programs.

While delegated states have primary responsibility for compliance and enforcement, EPA cannot abdicate its responsibilities to the Congress to ensure that national goals and objectives are met. EPA also has a role in the enforcement area as a strong back-up to states to provide direct enforcement actions when needed. EPA will endeavor to assist state compliance and enforcement programs when requested, the Agency may also take direct enforcement action in those cases where a state demonstrates it is not willing to establish a strong enforcement presence or is unable to do so due to a lack of necessary resources or requisite legal authority.

EPA should establish in advance with the states the general criteria or guidelines for when EPA will take independent enforcement action. Such criteria could identify, for example, cases involving national precedents or other factors of national significance, unusually large environmental impacts, imminent hazard situations, or state enforcement responses that are not “timely and appropriate”. We must also coordinate our enforcement actions with states, notifying states in advance, and taking direct action in accordance with agreed-upon criteria and not in a way that appears to states as random and arbitrary or that duplicates state action.

EPA and the state should conduct annual joint planning for compliance and enforcement activities, in order to establish and coordinate priorities and strategies.

For EPA’s enforcement role to be effective, states must provide the Agency with prompt and accurate information on pollution sources not in compliance and on state plans concerning enforcement actions; such information should be focused especially on mutually established annual priorities. Frequent and accurate state reporting of compliance information is extremely important for both EPA and the states. Having an accurate nationwide picture of compliance and enforcement activities improves our collective ability to assess our progress toward environmental protection goals and to make informed adjustments and improvements in national program direction and state implementation.

The way in which EPA has developed a blueprint for our State/EPA enforcement relationship has been the result of a number of standing cooperative groups that both establish a framework for ongoing operations as well as provide an opportunity for fine-tuning the operations through evaluation and recommendations for having.

The group that is most critical to our current way of operating is the steering committee on the State/Federal Enforcement Relationship chaired by the Office of Enforcement.

That Committee recommended and EPA adopted a “Policy Framework for State/EPA Enforcement Agreements.” The original framework was developed in 1984 with a subsequent revision in 1986. Each year the EPA Regional Offices and the States negotiate enforcement agreements establishing clear oversight criteria for assessments of State and EPA compliance and enforcement programs. The agreements also establish the criteria for direct Federal enforcement in delegated States (including the procedures for advance consultation and notification), and they put into place procedures for State reporting of management information to EPA. The Policy Framework clearly establishes Federal oversight of State civil penalty assessments. The Policy also strongly encourages greater involvement by State Attorneys General in the enforcement agreements process, communication on priorities and case status, and planning resource needs. The FY 1989 State/EPA Agreement process sought to improve Regional consistency in addressing areas covered by the agreements, and reiterated the need for the EPA Regional Offices to reach an understanding with their states on Federal facility compliance issues.

Another group that provides support for ongoing State/EPA enforcement is the National Environmental Enforcement Council. The Council membership consists of EPA enforcement officials, State Attorneys General, U.S. Department of Justice officials, and State environmental managers. The group focuses primarily on practical/legal enforcement issues as contrasted with the operational aspects of the Steering Committee.

A third set of groups that aid enforcement relationships are the four multi-state enforcement organizations. Because of concerns about the need for greater cooperation on criminal enforcement in the environmental field, EPA worked closely with the National Association of Attorneys General and State environmental officials to form the multi-organizations to work cooperatively on such matters. The groups are organized on geographic bases around the country with 43 states participating in one of the four groups.

3.0 STATE/EPA POLICY FRAMEWORK

The Policy Framework, mentioned above, sets out the essential ground rules for annual enforcement activities by the States and EPA. The framework is divided into six sections: State Agreements – Form, Scope, and Substance; Oversight Criteria and Measures; Oversight Procedures and Protocols; Criteria for Direct Federal Enforcement in Delegated States; Advance Notification and Consultation; and State Reporting.

Due to the length of EPA’s Policy Framework this portion of the paper will highlight certain aspects of the Policy.

The section on State Agreements permits EPA Regions and the States much flexibility in defining the form and duration of the agreement. The most important feature of the agreement should be that it covers all aspects of the civil compliance and enforcement programs, including activities involving Federal facilities. Frequently, the agreements are blended in with work plans and grant agreements that are executed annually as part of the Agency policy on management of the state grants awarded annually. The amount of State grants in FY 1990 was $387 million with an expected growth to $456 million in FY 91 under the President’s budget.

The Agreement section of the Policy Framework essentially incorporates the remaining five sections because they are usually covered in the annual State/EPA Agreement. Oversight criteria are probably the most critical part of an Agreement in the sense that measurements of success affect the essence of the State/EPA relationship.

The criteria are primarily used to address EPA’s national program objectives as well as defining good performance generally applicable to any compliance and enforcement program whether administered by EPA or a State. The criteria must be tailored to address environmental and other priorities of the Region or State as well as other concerns unique to individual States.

Perhaps the most well known criteria understood not only by EPA and the States, but the regulated community as well, are the “timeliness” and “appropriate response” factors. “Timeliness” refers to key milestones and timeframes applied to all states with adjustments to accommodate each state’s legal system. The timeframes are intended to: (1) be general targets to strive for; (2) trigger points that EPA and States should use to review progress on individual cases; and (3) presumptions that, if exceeded, may prompt EPA to take direct federal enforcement action. “Appropriate response” refers to the nature of the response to individual violations consistent with national policies. In essence, the response should achieve expeditious correction of the violation, deterrence to future noncompliance and fairness (taking into account the gravity of the violation), the circumstances of the violation, the violator’s prior record and the economic benefits derived from noncompliance.

Appropriate response also requires a clear role for civil monetary penalties and other sanctions to achieve deterrence of future noncompliance. Penalties and sanctions contribute to greater equity among the regulated community by recovering the economic benefit a violator gains from noncompliance over those who do comply. EPA prefers the use of cash penalties to other types of sanctions, but works with states to make appropriate use of other sanction mechanisms such as license revocation or criminal fines or incarceration.

Two sections of the Policy Framework that are essentially inseparable are the section on oversight process and criteria for direct federal action. The goal of oversight should be to improve the state (or Regional) compliance and enforcement program. Oversight should be tailored to fit State performance and capability. The guiding principle has to be that positive oversight findings should be stressed as well as appropriate use of negative findings.

The most critical determinant of whether EPA will take direct enforcement action in a State is whether the State has or will take timely and appropriate enforcement action as defined by the Agreement. In all other situations, primary responsibility for action will reside with state and local governments. There are three ways other than timely and appropriate situations when EPA will consider direct federal action. They are: when a State requests action; there is a national precedent demanding federal action; or there is a violation of an EPA issued order or consent decree.

Finally, because timing is important in enforcement actions, a policy of “no surprises” must be the centerpiece of any effort to ensure the productive use of federal and state resources in achieving compliance. The annual agreement should specify the “who”, “how” and “when” of the notification process.

4.0 IMPROVEMENTS EXPECTED IN THE 1990s

EPA has drafted a four-year strategic plan titled “Enhanced Environmental Enforcement for the 1990s” that sets forth the role that enforcement has to play in accomplishing the national environmental mission in this last decade of the 20^th century.

The plan makes it clear that EPA and the States have a strong base enforcement program that has produced record levels of activity resulting in improvements in environmental quality that were not possible without a strong Federal/State program.

The plan also notes, however, that despite these gains – both in establishing rules and assuring compliance with them – there are challenges ahead. There are still places where the air is unhealthy and the water dirty. The failure of some facilities to maintain equipment properly will undo past environmental gains. The regulatory agenda is expanding annually, although the Agency has not yet achieved 100% compliance with existing requirements. Neither the regulatory nor enforcement process can, in the near term, address every discharge which causes a risk.

Our joint (Federal/State) enforcement efforts must become more sophisticated if they are going to solve the most pressing environmental problems through direct action to achieve compliance. Implementation of the enhanced approach will only succeed if the federal, state and local efforts mutually build the necessary enforcement and compliance capacity.

The plan contains seven broad goals, one of which is titled “Improving EPA Relationships with other Units of Government.” The major governmental institution focused on in that goal is the States.

More specifically, the goal says that there is still room for improvement in the State/Federal relationship. It is important that the Agency review its oversight function to assure it is as constructive as possible. It is also important that the Agency work with the States in explaining and refining this strategy. This approach requires the mutual understanding that the appropriate State/Federal relationship (e.g., degree of oversight or delegation) may vary over time and between individual programs.

This will require more emphasis on delivering to States the generic and program-specific training materials developed pursuant to EPA’s basic inspector training and development program. At the same time, the Regions and States will need to make better us of State-by-State data (both quantitative and qualitative) to make more refined evaluations of the overall effectiveness of their individual States’ enforcement programs and help facilitate identification of areas for program improvement.

The “Enforcement for the 1990s Project” is analyzing the State/Federal relationship and the approach to oversight. The strategic planning process will define any adjustments which should be phased in by the Regions and States in the FY 1991-95 timeframe. The annual State/EPA Enforcement Agreements process will take on added significance as the formal mechanism for working with the States and localities and defining new responsibilities and roles. State involvement in EPA strategy efforts needs to become more formalized. Minimum guidelines, standards, and capabilities for an acceptable State program could be developed that address such aspects as enforcement procedures, resource levels, and State training.

In closing, let me say that effective management by and oversight of state enforcement at EPA are both a must. However, an enforcement program with powerful authority and efficient compliance tracking cannot achieve its best results unless the “requisite will to enforce, the management framework to articulate objectives and hold all officials accountable for achieving them” is in place. (Law of Environmental Protection, ELI p. 8-127). We are moving steadily in the right direction and have no choice but to do as the four-year plan says: we “will have to become ‘smarter’.”