IMPACT OF EPA’S REGULATORY REFORM AGENDA ON STATE PROGRAMS Rick Dunn May 16, 2018

Environmental regulation and state police power Early Georgia Environmental Regulation – examples include 1932 – Safe Water Drinking Program 1964 – Georgia Water Quality Control Act 1967 – Surface Mine Act 1968 – Coastal Marshland Protection Act Federal 1970 – Clean Air Act, Creation of EPA 1972 – Clean Water Act 1976 – RCRA 1980 - Superfund

Federalism and enabling legislation Clean Air Act at 42 USC §7401 (a)(3): The Congress finds . . . that air pollution prevention (that is the reduction or elimination, through any measures, of the amount of pollutants produced or created at the source) and air pollution control at its source is the primary responsibility of States and local governments. Clean Water Act at 33 USC §1251 (b): It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter.

Concept of Cooperative federalism Congress establishes law and the federal government implements the law through national minimum standards for the media/pollutant in question States can seek authorization/delegation to implement programs needed to achieve these standards. States may choose to go beyond minimum standards if they choose to do so. Federal government may implement regulatory program if state refuses to do so or cannot meet standards, provides oversight of delegated programs, and undertakes federal enforcement if regulated industries do not cooperate with state authorities.

State primacy Initially, state programs greatly benefitted from both significant EPA oversight and federal funding to establish robust programs. Early state “solo” efforts were not very successful. Over the past 45 years, state programs have matured and are much better situated to address environmental challenges. Today, states have assumed 96% of the delegable authorities under state law. Permitting, monitoring, and enforcement of federal environmental law is primary a state activity. In Georgia, state has primacy under all delegable federal acts with the exception of Section 404 of the Clean Water Act (discharges of dredge and fill material in waters of the US). Not all programs are delegable to the states – e.g., Superfund, many aspects of TSCA, Oil Pollution Act, EPCRA.

Tensions in the federal state relationship Natural tension in state-federal relationship as state programs mature. Greater dissonance in policy priorities of states and federal government also contributed to the friction. Coercive federalism? Have states become “empty vessels” that merely carry out the will of the federal government? Timeliness and standards applied to EPA review of state implementation/ primacy plans Scope and implementation of EPA National Enforcement Initiatives Audits of state enforcement actions and permit reviews Uptick in number of federal “takeovers” of state regulatory programs (FIPs) Large number of state challenges to EPA regulations, claiming preemption of state responsibilities

new thinking on federal state relationship EPA’s Strategic Plan (2018-2022 ) goals are emblematic: Refocus the Agency back to its core mission of supporting states’ efforts to achieve the goals of clean air, water and lands. Restore power to states though cooperative federalism. Lead the agency through improved processes and adhere to the rule of law.

Policy pivots Clean Power Plan Repeal of “once in, always in” policy WOTUS

enforcement Bodine Memo (January 2018) Directs EPA regions “to generally defer to authorized states as the primary day-to-day implementer of their authorized or delegated programs.” Around a dozen noted exceptions where federal involvement is warranted including: Significant noncompliance that state has not appropriately addressed In emergency situations or significant threat to public health Facilities with similar issues in multiple states or cross-boundary impacts Where enforcement activities require specialized EPA equipment and/or expertise Where a targeted facility is federally or state owned or operated Guidance also indicates that when EPA identifies a violation at a regulated facility, it will generally grant state requests to take lead on enforcement Also instructs EPA Regional Administrators to undertake joint planning with state officials and requires elevation of disputes between state and regional to a senior HQ administrator.

budget EPA has historically assisted in the funding for state administration of federal regulatory programs. Some cost sharing is expected given the states are asked to achieve federal goals. At Georgia EPD, total federal funds – including USDOT congestion mitigation and air quality improvement grants – constitute about 30% of total funds budget ($40M). PPG funding – main form of federal EPA funding – is about $12.4M for 2018. President’s 2018 budget proposed dramatic (44%) reductions in grant programs to state environmental protection agencies. Congress, however, restored full funding in 2018 Omnibus Appropriations Bill

Closing observations of state federal relationship For some, support or opposition to new conceptions of “cooperative federalism” are based primarily upon policy considerations. For others, it is a more principled stance for good governance and alignment with basic U.S. Constitutional principles. From the principled viewpoint, states – absent a compelling national need for consistency or the need to deal with significant negative cross- border externalities - should be afforded more of an opportunity to chart a course that is in the best interest of its citizens. Natural resources of Georgia and Oregon differ – a single national solution to managing natural resources or single national mechanism to govern utilization a resource is usually inappropriate. States should be given the flexibility to take lead in developing state solutions to local environmental problems, relying upon federal guideposts when needed.