Document 0J1b1jqK5VbY0nEzx0Y9zVJLk

Cooperative Federalism 2,0: Achieving and Maintaining a Clean Environment and Protecting Public Health May 2017 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00173513-00001 Introduction The following document was produced through a consensus-based process among the ECOS members. It is respectfully shared by the ECOS officers with all who desire to participate in a conversation related to these matters. Please feel free to direct questions or comments to ECOS Executive Director and General Counsel Alexandra Dunn at adunn@ecos.org or (202) 266-4929, or to any of the officers. John Line Stine INSERT SIGNATURE ECOS President Commissioner, Minnesota Pollution Control Agency ohn.stine@state.mn.us Todd Parfitt INSERT SIGNATURE ECOS Vice President Director, Wyoming Department of Environmental Quality todd.parfitt@wyo.gov Becky Keogh SIGNATURE TO BE PROVIDED ECOS Secretary-Treasurer Director, Arkansas Department of Environmental Quality keogh@adeq.state.ar.us Martha Rudolph INSERT SIGNATURE ECOS Past President Director, Environmental Programs Colorado Department of Public Health & Environment martha.rudolph@state.co.us Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00173513-00002 Cooperative Federalism 2,0; Achieving and Maintaining a Clean Environment and Protecting Public Health A national conversation is underway as to the best and highest purpose for state and federal environmental regulators from 2017 forward. We are convinced a recalibration of state and federal roles can lead to more effective environmental management at lower cost - a call for a Cooperative Federalism 2.0. We have an opportunity to engage the Administration, Congress, and all other parties and interests in how states and U.S. EPA can put the "meat on the bone" and more fully define what we mean by Cooperative Federalism 2.0 from a policy, operational, and fiscal standpoint that ensures effective public health and environmental protections. We believe that through this concept we can build on the foundations of national statutes, learn from the innovations and successes of state programs, and confidently meet the challenge of providing 21st century environmental protection with the best of 21st century methods and relationships. As states evaluate the future of environmental protection, we believe each of the key roles and functions laid out here is crucial for high quality, nimble, reliable, and transparent environmental and public health protection across the nation. We look forward to engaging others on how they see this important relationship. Background When the foundation of environmental protection was established in the United States in the late 1960s and early 1970s, a key, constitutionally based tenet was cooperative federalism. Under this tenet, the U.S. Congress establishes the law, the federal government implements the law through national minimum standards for the media/pollutant in question, and states can seek authorization or delegation to implement the programs needed to achieve these standards. Generally, states may develop programs to go beyond these standards if a state chooses to do so. Initially, when states first began to implement programs delegated to them in the 1970s and 1980s, many state programs benefitted not only from federal funding, but also from significant U.S. EPA oversight. Over the last 45 years, states have become the primary implementers of these environmental statutes, such that today, states have assumed more than 96 percent of the delegable authorities under federal law. These state programs have now matured, and states have undertaken many continuous improvement efforts to address new environmental challenges and to modernize and streamline decision-making processes. Indeed, from the first fledging state programs to those we implement today, we have always sought out ways to be better and inspire public confidence in our efforts. States are a critical part of achieving our nation's environmental and public health goals and mandated responsibilities in an effective and efficient way. Doeum ent Structu re This document contains two parts. Part I enumerates, as principles, the roles and functions of states and U.S. EPA in cooperative federalism. The state and U.S. EPA principles we lay out here must be taken together; many of the principles reflect corollary responsibilities. These principles, which are laid out in the following table, are derived from a deep reflection on the current tenor and functioning of state/EPA relationships. Part II documents an initial list of important policy-neutral issues where the application of cooperative federalism could be focused. Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00173513-00003 Part I: Principles of the Roles and Functions of States and U.S. EPA in Cooperative Federalism P rin cip les o f the States' R ole an d Fu n ctio n in C oop era tive Fed eralism P rin cip les o f the Fed eral Role and Fu n ction in C oop erative F e d e r a lis m 1 States should be engaged, as key partners w ith the federal go vernm ent, in the U.S. EPA should continue to lead in setting and adopting national m inim um developm ent of national m inim um standards to protect hum an health and the standards to protect public health and the environm ent. environm ent, and in any federal requirem ents regarding im plem entation of tho se stan d ard s. States bring e xp erie n ce in ide n tifying and u n d e rstan d in g e vo lvin g scie n ce and e m e rgin g e n viro n m en tal ch alle n ge s, and in deve lo pin g effective p ro g ram m a tic o p tio n s and alte rn atives. In particular, states have the first-hand know ledge of how to ensure successful im plem entation of program s designed to m eet these standards including experience com m unicating with the regulated com m unity and the public. 2 States are the preferred im plem enting entities for national environm ental U.S. EPA should be the lead im plem enter of national environm ental regulatory program s for w hich federal statutes authorize their delegation. O nly regulatory program s in those instances w here states decline to assum e this w here states elect not to pursue delegated federal authority, do not provide the role, w here the states fail to appropriately im plem ent such program s, or resources necessary to m eet national regulatory m inim um standards, or have a w here federal statutes establish that role for the federal governm ent. docum ented history of failure to m ake progress tow ard m eeting national standards, should U.S. EPA im plem ent these environm ental program s. 3 States should have flexibility to determ ine the best way for their program s to U.S. EPA should involve states as partners early and often in developing achieve national m inim um standards that enables them to incorporate and federal environm ental and public health policy, and should specifically seek integrate their unique geophysical, ecological, social, and econom ic conditions. state and other stakeholder input on the efficacy? of new or changed standards or program requirem ents. 4 States should engage local governm ents, regulated entities, tribes, and the U.S. EPA should assure appropriate federal consultation with Native public, as w ell as reco gn ize co m m u n ity and e q u ity co ncerns, in im p lem e ntatio n A m erican trib e s in the im p lem e ntatio n o f federal enviro n m en tal and public of national environm ental regulatory program s, policies, and standards. health policies, program s, and standards. 5 States should be the prim ary enforcem ent authority for program s delegated to U.S. EPA should respect the states' role as the prim ary im plem enter of the states and have the ability access federal enforcem ent authorities when national environm ental regulatory program s and not review individual federal e n fo rce m e n t is n eeded o r ap p ro p riate. state im plem entation decisions, including enforcem ent, on a routine or recurring basis unless program m atic audits identify this need or particular circum stances compel federal action. 6 States should gather, m aintain, and share inform ation transparently with U.S. U.S. EPA should periodically and routinely audit state im plem entation EPA and the public on how human health and the environm ent are protected, program s authorized or delegated to achieve national m inim um standards based on nationally agreed upon m easures and m etrics, through the activities (including adequacy of state im plem enting authorities and resources). states conduct and the environm ental outcom es states achieve for federally These audits should be based on criteria m utually developed by states and Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00173513-00004 delegated programs. U.S. EPA in light of federal regulations and grant requirem ents. W hen a state is not a d e q u ate ly a ch ievin g stan d ard s, U.S. EPA should be able to take appropriate action to ensure that a state will m ake consistent progress. U ltim ately, if a state is not m akin g su fficie n t p ro gress, U.S. EPA should be able to reassum e a lead im plem entation role. 7 Consistent w ith Constitutional principles, states should be encouraged through U.S. EPA has a role as a co nvener and facilitato r in im portant pollutant- flexible federal requirem ents to develop, pursue, and im plem ent state related interstate issues to e fficie n tly su p p o rt m u lti-state so lu tio n s and in innovations to effectively and efficiently achieve desired environm ental som e cases, to ensure final decision-m aking. States' w illingness to w ork on outcom es. States should generally have the ability to set standards that are the se typ e s of issues co lle ctive ly and co llab o rative ly w ith each o th e r is also m ore strin ge n t o r th at are b ro ad e r in scope than federal stan d ard s. critical for success. Regional collaborations of national significance often require additional assistance (i.e., technical or scientific support, funding, regulatory accountability, and dispute resolution) that U.S. EPA should have the capacity to provide. 8 States sh o u ld w o rk co o p e rative ly w ith U.S. EPA in the d e ve lo p m e n t of shared U.S. EPA should m aintain a robust scientific research and data gathering services, im plem entation toolkits, and other key resources to facilitate capacity to effectively inform and establish national regulatory m inim um perm itting and reporting functions and to efficiently use resources to standards based on sound science, to understand how best to respond to accom plish these tasks as well as shared functions. com plex environm ental pollution challenges, to respond to em erging pollutants, to incorporate m odern technologies, and to efficiently determ ine protective alternative rem ediation strategies and other solutions to facilitate protection of human health and the environm ent. The federal governm ent has w ell-developed capacity to keep abreast of em erging challenges and to research potentially successful technologies or rem edies for current challenges that no single state has the capacity to replicate or replace. 9 States that choose to im plem ent federal program s should be both adequately U.S. EPA should have sufficient resources to m eet these responsibilities and funded by the federal go ve rn m e n t to do so as C o n gre ss d irected in a u th o rizin g to fin a n cia lly su p p o rt states in the im p lem e n tatio n of federal statute s and statutes and should also invest state resources (either directly or through fees or program s. U .S.EPA should have sufficient resources to m eet all obligations other methods) sufficient to im plem ent a successful program. to states and to ensure tim ely review and decisions on program subm ittals by the states. The level of federal support to states im plem enting federal program s, policies, and standards should be calibrated to the scope and co m p le xity o f federal re q u ire m en ts that states m ust ach ieve in o rd e r to assum e or continue im plem entation responsibility. Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00173513-00005 Part II: Changes Implied by Cooperative Federalism 2,0 Our state environmental programs exist to provide the level of environmental and human health protection promised to the American people through our national and state statutes. The key principles articulated above spark the following observations and entreaties for consideration by all parties with an interest in these crucial matters. Many of them are buttressed by work underway between U.S. EPA and the states. However, the full embodiment of the principles clearly means a change from business as usual for most states and U.S. EPA and requires a willingness for U.S. EPA and the Congress to align the state/federal relationship with the current realities and responsibilities of state implementation of national regulatory programs. States are willing and eager to engage in this important dialogue. A. Ensuring adequate capital and operating resources to fully implement federal environmental laws has been and must remain a priority focus. Robust cooperative federalism cannot be achieved if one party or the other is not capable of performing its critical functions. Inadequate implementation by states benefits no one; insufficient or non-timely performance by U.S. EPA hurts everyone. Both states and U.S. EPA need to perform as required and expected under a truly effective cooperative federalism. Neither party can, nor should be expected to, perform the important functions needed by the other for each to be successful. For example, adequate capital requirements for clean water (including drinking water) are a crucial public health necessity and a shared responsibility between the federal government, the states, and local governments. The federal government should financially support state implementation efforts commensurate with the complexity and breadth of federal requirements. Furthermore, when states implement federally delegated authorities, they must continue to provide a level of resources commensurate with their responsibilities. In the event there are decreases in the level of support for the operation of federally delegated programs by either federal or state governments, it is critical that there be a shared understanding, and disclosure to the public, of what work will no longer be performed by either party. B. With robust engagement of all interests, including states, U.S. EPA should identify key outcomes for implementing federal environmental and public health laws that each federal program, standard, or policy is intended to accomplish. U.S. EPA should seek to demonstrate this through environmental and service delivery (i.e., time) "outcome" metrics rather than "output" metrics. These metrics should be understandable to the regulatory community and the public. States should report at regular and consistent intervals to U.S. EPA and the public, through these agreed-upon and, to the extent possible, nationally consistent metrics, what environmental, public health, and service delivery outcomes the state-implemented federal programs, policies, and standards have achieved. C. U.S. EPA and states' working relationships should be continually reviewed, improved, and reformed to conform with the key principles. EPA's oversight of state's performance should emphasize developing, aligning, and mutually supporting efforts that successfully address environmental challenges instead of routinely reviewing state's individual implementation actions. Such cooperative efforts should include development of new regulations and guidance consistent with the key principles, review of past practices and regulations that may be outdated and inefficient (and hence should be modified or eliminated), and determination of how regional and national consistency on implementation can be harmonized with state flexibility and innovation in implementation. There are significant ongoing efforts ready for scale to accomplish this, including E-Enterprise, in which U.S. EPA, states, and tribes jointly Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00173513-00006 identify, manage, and implement projects designed to improve agency performance, implement efficiencies, and reduce burdens on the public and the regulated community. The widespread adoption of business process improvement techniques by states and U.S. EPA shows the benefit of continuing and expanding this effort through adoption of the principles. D. Healthy and vibrant communities and economies rely upon both effective environmental protection and resilient economic growth. Achieving national minimum standards contributes greatly to the former; implementing efficient and effective programs contributes greatly to the latter. State flexibility to determine the best way for its programs to achieve national minimum standards that accounts for unique geophysical, ecological, social, and economic conditions is a particularly important aspect of ensuring that environmental protection and economic prosperity go hand-in-hand with healthy and vibrant communities. E. As the scope and breadth of environmental programs has grown to address the issues upon which they are focused, assuring regulatory compliance has become increasingly complex. Robust and appropriate enforcement of regulations is a key aspect of compliance assurance, both by stopping and remedying non-compliance and by creating a climate of deterrence for other potential deliberate violators. States see significant benefit in providing focused compliance assistance and assurance programs that assist the regulated community to come into compliance by increasing its understanding of regulatory requirements and by developing effective ways to achieve compliance. Providing assistance is critical to support the vast number of entities that want to be in compliance. Creating a connection to those entities who may need compliance support can prevent them from becoming cases for formal enforcement action. States are implementing a wide range of such programs and developing methods to measure overall compliance, as well as the effectiveness of these programs. F. Support for small communities to help improve community health and build necessary resilience to sustain it are needed across the nation. National minimum standards often represent significant financial burdens on these communities, which can be considerably exacerbated when investments are considered one program or one pollutant at a time. States and U.S. EPA have begun to address this pressing challenge, but ensuring that all communities in need of this support (and capable of implementing it responsibly) remains elusive. G. As our environmental challenges become more complex and diffuse, novel approaches are needed that will depend upon comprehensive cooperative federalism to be successful. Pollutants are often found to have cumulative and synergistic relationships that are difficult to address under our single pollutant-by-pollutant statutory approach. Pollutants also do not respect political boundaries, highlighting the need for multi-state and multi-national approaches and cooperation. Conclusion and Next Steps We strongly believe that positive reforms and improvements to the bedrock of cooperative federalism are needed and warranted at this time 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 best perform consistent with these principles in order to protect the environment and public health of our great nation. Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00173513-00007