Document ka6DLrv9yxXNe2Gpw3E194m8J

COOPERATIVE FEDERALISM 2.0: Achieving and Maintaining a Clean Environment and He JUNE 2017 E CZ'"'4 (3 5c* introduction The Environmental Council of the States (ECOS) is the national nonprofit nonpartisan association of state and territorial environmental agency leaders. Its purpose is to improve the capability of state environmental agencies and their leaders to protect and improve human health and the environment of our nation. The following document was produced through a consensus-based process among the members of ECOS. It is respectfully shared by ECO S with all who desire to participate in a conversation related to these matters. Please feel free to direct questions or comments to ECO S Executive Director and General Counsel Alexandra Dunn at adunn@ecos.org or 202.266.4929, or to any of the undersigned officers. JOHN LNC STINE BECKY KEOGH ECOS President Commissioner, Minnesota Pollution Control Agency john.stine@state.mn.us 651.757.2014 TODD p a p fit t ECOS Secretary-Treasurer Director, Arkansas Department of Environmental Quality keogh@adeq.state.ar.us 501.682.0959 M A W m A RUDOLPH ECOS Vice President Director, Wyoming Department of Environmental Quality todd.parfitt@wyo.gov 307.777.7937 ECOS Past President Director, Environmental Programs Colorado Department of Public Health & Environment martha.rudolph@state.co.us 303.692.3397 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00172489-00001 COOPERATIVE FEDERALISM 2.0: Achieving and Maintaining a Clean Environment and : r June 2017 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 --that this is a call for a Cooperative Federalism 2.0. The purpose of this paper is to stimulate and advance this important national conversation. We have an opportunity to engage the Administration, Congress, and all other parties and interests in how states and the U.S. Environmental Protection Agency (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 in this document 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 fledgling 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. P o o l m eni 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; 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 then documents 2.0 an initial list of important policy-neutral issues where the application of Cooperative Federalism could be focused. Page 2 of 6 www.ecos.org Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00172489-00002 Principles of the Roles and Functions of States and US , EP in Cooperative Federalism Principles of the States' Role and Function in Cooperative Federalism States should be engaged, as key partners with the federal government, in the development of national minimum standards to protect human health and the environment, and in any federal requirements regarding implementation of those standards. States bring experience in identifying and understanding evolving science and emerging environmental challenges, and in developing effective programmatic options and alternatives. In particular, states have first hand knowledge of how to ensure successful implementation of programs designed to meet these standards including experience communicating with the regulated community and the public. U.S. EPA should continue to lead in setting and adopting national minimum standards to protect public health and the environment. 2 States are the preferred implementing entities U.S. EPA should be the lead impiementer of nationa for national environmental regulatory programs environmental regulatory programs in those instances for which federal statutes authorize their where states decline to assume this role, where the delegation. Only where states elect not to pursue states fail to appropriately implement such programs, or delegated federal authority, do not provide the where federal statutes establish that role for the federal resources necessary to meet national regulatory government. minimum standards, or have a documented history of failure to make progress toward meeting national standards, should U.S. EPA implement these environmental programs. States should have flexibility to determine the best way for their programs to achieve national minimum standards that enables them to incorporate and integrate their unique geophysical, ecological, social, and economic conditions. U.S. EPAshouid involve states as partners earlyand often in developing federal environmental and public health policy, and should specifically seek state and other stakeholder input on the efficacy of new or changed standards or program requirements. I States should engage local governments, U.S. EPAshouid ensure appropriate federal consultation regulated entities, tribes, and the public, as well with Native American tribes in the implementation of as recognize community and equity concerns, federal environmental and public health policies, programs, in implementation of national environmental and standards. regulatory programs, policies, and standards. States should be the primary enforcement authority for programs delegated to the states and have the ability access federal enforcement authorities when federal enforcement is needed or appropriate. U.S. EPA should respect the states' role as the primary impiementer of national environmental regulatory programs and not review individual state implementation decisions, including enforcement, on a routine or recurring basis unless programmatic audits identify this need or particular circumstances compel federal action. June 2017 Sierra Club v. EPA 18cv3472 NDCA Page 3 of 6 Tier 10 www.ecos.org ED 002061 00172489-00003 Principles of the States' Role and Principles of the Federal Role and Function Function in Cooperative Federalism in Cooperative Federalism States should gather, maintain, and share U.S. ERA should periodically and routinely audit state information transparently with U.S. ERA implementation programs authorized or delegated to achieve and the public on how human health and the national minimum standards (including adequacy of state environment are protected, based on nationally implementing authorities and resources). These audits should agreed upon measures and metrics, through the be based on criteria mutually developed by states and U.S. activities states conduct and the environmental ERA in light of federal regulations and grant requirements. outcomes states achieve for federal ly delegated When a state is not adequately achieving standards, U.S. programs, ERA should be able to take appropriate action to ensure that a state will make consistent progress. Ultimately, if a state is not making sufficient progress. U.S. ERA should be able to reassume a lead implementation role. Consistent with Constitutional principles, states should be encouraged through flexible federal requirements to develop, pursue, and implement state innovations to effectively and efficiently achieve desired environmental outcomes. States should generally have the ability to set standards that are more stringent or that are broader in scope than federal standards. U.S. EPA has a role as a convener and facilitator in important pollutant-related interstate issues to efficiently support multi-state solutions and in some cases, to ensure final decision-making. States' willingness to work on these types of issues collectively and collaboratively with each other is also critical for success. Regional collaborations of national significance often require additional assistance (Le., technical or scientific support, funding, regulatory accountability, and dispute resolution) that U.S. EPA should have the capacity to provide. i States should work cooperatively with U.S. U.S. EPAshouid maintain a robust scientific research and data ERA in the development of shared services, gathering capacity to effectively inform and establish national implementation toolkits, and other key regulatory minimum standards based on sound science, to resources to facilitate permitting and reporting understand how best to respond to complex environmental functions and to efficiently use resources pollution challenges, to respond to emerging pollutants, to accomplish these tasks as well as shared to incorporate modern technologies, and to efficiently functions. determine protective alternative remediation strategies and other solutions to facilitate protection of human health and the environment. The federal government has well- developed capacity to keep abreast of emerging challenges and to research potentially successful technologies or remedies for current challenges that no single state has the capacity to replicate or replace. States that choose to implement federal programs should be both adequately funded by the federal government to do so as Congress directed in authorizing statutes and should also invest state resources (either directly or through fees or other methods) sufficient to implement a successful program. U.S. EPA should have sufficient resources to meet these responsibilities and to financially support states in the implementation of federal statutes and programs. U.S. EPA should have sufficient resources to meet all obligations to states and to ensuretimely review and decisions on program submittals by the states. The level of federal supportto states implementing federal programs, policies, and standards should be calibrated to the scope and complexity of federal requirements that states must achieve in order to assume or continue implementation responsibility. June 2017 Sierra Club v. EPA 18cv3472 NDCA Page 4 of 6 Tier 10 www.ecos.org ED 002061 00172489-00004 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 critical matters. Many of them are buttressed by work underway between U.S. EPAand 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 transparency around, what work may no longer be performed by either party. 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 regulated 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 stateimplemented federal programs, policies, and standards have achieved. i. 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 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. June 2017 Sierra Club v. EPA 18cv3472 NDCA Page 5 of 6 Tier 10 www.ecos.org ED 002061 00172489-00005 k 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. 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 understandingof regulatory requirements and by developing effective ways toachieve 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. r. Support for small communities to help improve community health and build necessary resilience to sustain it is 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 --receive it, remains elusive. 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 pollutantby-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 move forward consistent with these principles, in order to protect the environment and public health of our great nation. r--zzn ECOS 50 F Street, NW * Suite 350 Washington, DC 20001 www.ECOS.org 202.266.4920 P 202.266.4937 F ecos@ecos.org E ECOSTATES ECOSTATES f*KOTB) WiTH! 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