Jump to Navigation
Jump to Content

Environmental Federalism Part I: The History of Overfiling Under RCRA, the CWA, and the CAA Prior to Harmon, Smithfield, and CLEAN

August 2000

Citation: ELR 10615

Author: Jerry Organ

The Resource Conservation and Recovery Act (RCRA),1 the Clean Water Act (CWA),2 and the Clean Air Act (CAA)3 represent federal regulatory regimes for protecting the environment. Although each statute initially places administrative responsibility in the hands of the U.S. Environmental Protection Agency (EPA),4 each encourages states, to varying degrees, to take primary responsibility for implementing the statutory regime.5 States have responded to this opportunity by seeking and obtaining approval of state programs under RCRA, the CWA, and the CAA—over 80% of the states have fully or partially approved programs under each of these statutes.6

State interests, however, are not always coincident with the federal interests reflected in EPA's policies—states may be more interested in attracting business7 or in promoting compliance rather than in assuring tough enforcement [30 ELR 10616] of environmental laws.8 States, therefore, can and do exercise prosecutorial discretion in ways different than EPA may desire (e.g., the state may elect not to take enforcement action, or not to impose penalties, or not to impose significant penalties) when EPA may believe significant penalties are appropriate.9

Professor Organ teaches Property, Environmental Law, and Regulation of Hazardous Substances at the University of Missouri-Columbia School of Law in Columbia, Missouri. Prior to joining the law school faculty, Professor Organ spent five years with Foley & Lardner, practicing in the area of environmental law. After graduating with a B.A. from Miami University in 1982, he earned his J.D. from the Vanderbilt University School of Law in 1985. He is grateful to the students in his Fall 1999 Environmental Law class with whom he explored the contours of EPA's overfiling authority, especially Brad Beall who provided research assistance. He also is grateful for the financial support provided by the Bill L. and Julia W. Thompson Faculty Research Fellowship, the W. Dudley McCarter Faculty Research Fellowship, and the Charles Rehm Faculty Research Fellowship, and the spiritual and personal support of his wife, Debbie, his five children, and the "village" it takes to help them all make it through each week.