Introduction

Almost every federal environmental regulatory program structures by statute a federal/state relationship for implementing the program. These relationships were established over a ten-year period, under both Republican and Democratic Administrations, and by a variety of Senate and House committees. As will be seen, the relationships range from exclusively federal control to essentially a joint venture relationship. The current Administration believes in general that the federal government has too much power and that this power should be diminished. This philosophy has been branded "The New Federalism." A fundamental tenet of this philosophy is that the free market governs best. A corollary is that states should play a relatively greater role in governing the citizenry—to the extent governing is necessary at all.

It is timely, therefore, to examine federal/state relationships in the environmental area in order to understand how these relationships came about and how the "New Federalism" will affect them. This examination requires an analysis of the basic interests which were in issue and competing for recognition in the development of federal/state relationships when the environmental regulatory statutes [12 ELR 15075] were enacted. Put another way, we need to understand why Congress wanted to establish a program which involved shared authority. Next, it is important to recognize who were the basic proponents and opponents of environmental regulatory legislation and where state interests fit into this picture. Finally, we must survey the environmental regulatory programs to see what federal/state relationships were actually established.

This analysis gives us a basis for assessing the relevance of the New Federalism philosophy to environmental regulation and the likely impacts of this philosophy on the federal/state relationships that have been established in this area.

The concluding section of this paper addresses areas where state responsibilities have been enhanced through legislation.

The Interests In Issue

A review of the legislative histories for the environmental laws and of press and trade press accounts, commentaries, and articles which cover environmental matters indicates that two fundamental issues underlie the debate over federal/state relationships in the environmental area: state sovereignty and better or more efficient decisionmaking. A less frequently mentioned issue is the concept of states serving as experimental laboratories. We will analyze each of these concepts to determine the extent to which they are the basis for or explain the federal/state relationships found in the environmental laws.

State Sovereignty

Opponents of federal environmental legislation have contended that environmental regulatory legislation usurps the state's sovereignty. Two aspects of state sovereignty are in issue. The first involves the concept that under our federal structure states have primary responsibility for protecting the health and welfare of their citizens, particularly where the problems concern local conditions. Municipal zoning laws are a classic example of state regulation designed to enhance the quality of the human environment. The second aspect involves the notion that, regardless of what responsibilities states may have to protect their citizens, the federal government may not order states— either state legislatures or state officials—to perform certain duties.

Regarding the "protected state responsibility" concept, it is hardly surprising that its scope is a limited one and, as a general matter, that the issue is not a constitutional one. As the nation has grown in size, as communications and mobility have improved, and as our knowledge has broadened and deepened, so has the need for the federal government to deal with matters which once were the exclusive province of state and local governments. Federal programs to eliminate and control communicable diseases and to deal with labor relations and workplace conditions are prime examples of this broadened federal role. In essence, the history of the expanding federal authority under the Commerce Clause traces the changes and the theories underlying these changes in federal/state relationships governing police power activities. And, after the New Deal, it seemed that there was essentially no limit to the federal government's authority to protect the health and welfare of its citizens under the Commerce Clause.

It is only second concept—the theory that there is some protected sphere of state sovereignty upon which Congress may not intrude—and its relationship to the first concept that makes the state sovereignty issue worth discussing. Three decisions form the backdrop:

1. The Supreme Court's 1976 decision in National League of Cities v. Usery¹ which appeared to carve out a large exception to Congress's authority to regulate under the Commerce Clause with respect to "integral state functions."

2. The series of 1975 decisions by three U.S. Courts of Appeals holding that the Environmental Protection Agency (EPA) acted unconstitutionally under the Clean Air Act by requiring states to impose indirect source controls on sources of air emissions such as shopping centers, large parking facilities, and highways.² While the cases were pending before the Supreme Court, EPA repealed some of the regulations and informed the Court that the remaining regulations had to be modified "to eliminate [  ] certain requirements that the state promulgate regulations." EPA v. Brown,³ (emphasis in original).

3. The Supreme Court's June 1981 decisions in Hodel v. Virginia Surface Mining and Reclamation Ass'n,⁴ and in Hodel v. Indiana,⁵ upholding the constitutionality of the Surface Mining and Reclamation Control Act of 1977 and, in the process, restricting significantly the scope of Usery.

As a result of these decisions, none of the environmental regulatory statutes suffer from any constitutional impediments for intruding upon a state's sovereign powers. EPA's actions and the related court actions in the transportation control area, however, make clear that there are constitutional limits to the exercise of federal regulatory authority: agencies or the Congress may not direct state legislatures or state officials to enact legislation or to issue regulations in order to control environmentally degrading activities of their citizens. States can agree to cooperate with the federal government in national environmental enhancement efforts and states can be induced to join in the effort by means of financial and local incentives—but certain forms of direct coercion are probably prohibited.⁶

[12 ELR 15076]

The practical relevance of this conclusion is obvious. First, the fact that states may not be imposed upon in certain ways ensures the existence of important checks and balances and a constructive tension between the federal and state governments. Second, Congress, the executive branch, and the states, in assessing environmental problems and in developing techniques for improving the environment, need to be aware of the available resources, both financial and human, the institutional competence of different levels of government, and the political relationships which exist among the federal, state, and local governments. Environmental problems arise in a broad variety of factual contexts which require different solutions in terms of the roles which federal and state governments should play.

State Laboratories

It is important to discuss this concept briefly to see which elements are and are not relevant to an assessment of federal/state relationships in environmental law. The concept does not figure prominently in the debate over federal and state roles because the legislation of the last decade was responsive to the results of these state laboratories.⁷ The evidence that environmental problems are serious and of national significance and that they are not amenable to being resolved by the states, not even with federal financial or technical assistance, finally became clear to the Congress. The National Environmental Policy Act (NEPA), which was signed into law on January 1, 1970, made clear that environmental degradation and pollution were significant national problems, equal in importance to other fundamental matters such as economic well-being. The Clean Air Act of 1970 underscored the fact that state efforts were not equal to the task of abating pollution and that federal regulation was necessary.

On the other hand, although the years of effort in attempting to deal with pollution problems in the air and water areas had demonstrated that individual state programs could not address the problems effectively, the importance of states and of different state approaches to solving the nation's environmental problems was also apparent to Congress and to the public. More significantly, Congress recognized the importance of "state laboratories" in two respects: (1) most environmental regulatory programs are premised on establishing national minimum standards and allowing the states to prescribe stricter standards if they consider it necessary or appropriate; and (2) most environmental programs do not preempt the environmental regulatory field completely; instead, except in the specific areas or subject matter regulated by the federal law, states are otherwise free to regulate.⁸ Thus, for the most part the federal environmental laws are statutorily designed to encourage and provide for significant state roles, not only as cooperating agencies and principal implementing authorities, but also as independent governments who can pursue their own experiments. It is true, however, that many are concerned that federal agencies have implemented their authorities in ways which reduce state discretion beyond that contemplated by statute. EPA's transportation control regulations mentioned above are one example.

Better or More Efficient Decisionmaking

Probably the most frequently voiced objection to federal environmental regulatory programs is that they produce poorer or inefficient decisionmaking by taking decisionmaking authority away from the states and vesting it in a federal bureaucracy. Several concepts underlie this concern.

First is the argument based on political science principles. Decisions made by government entities that are closer to the people being governed are likely to be 'better.' It is argued that these decisions will more completely and more accurately take into account the particular interests of those subject to the decision because the decisionmaker is more likely to be aware of local concerns through personal experience, local people will have greater access to the decisionmaker, and the local official will feel more directly accountable to the people who are subject to his or her decision.

Second is the argument based in part on what seem to be economic or free market principles. Decisions made by decentralized decisionmakers are likely to be more efficient, it is said, because, for example, they can be made more quickly and fewer resources are required for adequately informing the decisionmaker. In addition to the resources saved, however, implicit in this argument is the notion that the overall decisionmaking process itself is interconnected. Thus, decisionmakers are aware of other decisions and are also made aware of other decisions through the self-interest of those who will be affected by the decisions. As a result the local decisionmakers make decisions which not only reflect most efficiently the best knowledge available at the time, but also are made more quickly or efficiently.

For any given case, however, what is "better" or more "efficient" depends on the interests being served or protected. Some interests are not well protected by local decisionmakers. The history of race relations within our nation is an obvious example. Another thorny problem area for local decisionmakers is the environmental one because a state decision to improve environmental protection generally means, in economic terms, that the state has imposed a price on what was otherwise a free good. If neighboring states do not impose such prices, the state will lose to neighboring states resources or future opportunities for gaining additional resources.

[12 ELR 15077]

In sum, there is no single best solution to the question of who should be the principal decisionmaker—the federal government or the state—for environmental matters. As common sense informs us, environmental issues often pose some of the most difficult problems for developing preferred solutions for structuring federal and state relationships. On the one hand, from an economic perspective, most environmental problems are "externalities" so that pollution represents market failure, and governmental action is necessary to solve the problem. On the other hand, some environmental problems involve concerns that differ significantly from one locality to another, making national solutions possibly inappropriate or inefficient in an economic sense. And some environmental concerns involve matters that have been the subject of state and local control for so long that national solutions, even if appropriate, are difficult to reach for institutional or political reasons.

Conclusion

In sum, the structure of federal/state relationships for each environmental regulatory program is affected by all three factors: state sovereignty, state laboratories, and better or more efficient decisionmaking. But in the debates and legislative lobbying that preceded enactment of the environmental regulatory statutes examined in this paper, it appears that the concepts of state sovereignty and the state laboratory were not, at the margin, important factors in affecting the federal/state relationship. A principal reason for this result is that, as discussed below, state interests are reasonably well represented in Congress, so that Congress tends to protect state sovereignty and the state laboratory concept reasonably well without debate. The basic issue with which Congress was concerned in structuring federal/state relationships in this area is: what decisionmaking process would help achieve a better and more efficient resolution, including political resolution, of the environmental problem being addressed.

Parties in Interest

Because a major element of most of the federal environmental regulatory statutes is the design of federal/state relationships, and because the statutes significantly affect the activities of state programs, one might think that states would be significantly involved in the process. In fact, states are rarely prominent actors in the legislative process in comparison with industry and environmental organizations. The reasons are several.

First, as a political matter, state interests tend to be well represented by Senators and Representatives without any special effort on the part of state governments. Senators and Representatives are elected by state constituencies and usually desire reelection. Thus, they are generally aware of where the state interest lies and to what extent the federal government can effect that interest. In addition, state governments can easily make their concerns known to the Senators and Representatives from their states—and other states—without the type of lobbying effort relied on by private interests.

Second, as a constitutional matter, the states can expect that Congress will not overstep its bounds to usurp authorities which are constitutionally left to the states, no matter how limited this interest may be. This is the only real interest that the states have in the process. Congress generally resolves this issue by establishing regulatory programs which states can voluntarily choose to assume and implement. The practical effect is, therefore, that states know that the basic decision they will face is whether to choose to join the pollution control program established by the Congress or to stay on the sidelines and let the federal government implement the program itself. Each state's final decision rests on whether it can marshal sufficient resources to implement the program (some of which may be available from the federal government), and whether, as a political matter, it can afford not to become primarily responsible for implementation.

Third, as a practical matter (and, in part, related to the two factors discussed above), under most of the environmental regulatory programs the states' proprietary or physical interests are not significantly affected by most of the environmental regulatory programs. While state facilities have to comply with the federal pollution control requirements, the affected facilities and activities are not a major part of the state's overall activities. The major impacts of the programs fall on the private sector in the form of pollution control standards (which affect manufacturing processes and the price of goods and services), regulatory processes (which involve, for example, submitting information, obtaining authorizations, monitoring activities, submitting reports, and being subjected to enforcement actions), and taxes (i.e., the financial resources required to support the federal bureaucracy either through increased general taxes or through special excise taxes).

Thus, private industry is a basic party interested in the outcome of the process by which environmental regulatory programs are developed.⁹ The resource which is being protected, regulated, or otherwise affected by the environmental regulatory program is also "interested" in the outcome.

[12 ELR 15078]

For most of the environmental regulatory programs that have been enacted, the resource interest has been represented by a variety of environmental and conservation organizations, coalitions of these groups, broad-based citizen organizations such as the League of Women Voters and Common Cause, ad hoc or single purpose citizen groups, and private individuals. On occasion, labor unions and consumer organizations have joined in participating actively in the legislative process, although, given the significance of the economic issues that appear to be at stake, one might wonder why they have not been more often and more actively involved.

There are at least three reasons for this result. First, in essentially every poll since 1969, in good economic times and in bad ones, citizens have strongly supported environmental improvement programs, even when it was known that the programs would be costly in terms of resources directly expended. And politicians who have been responsible for establishing environmental programs have not been voted out of office for such actions, even if the direct costs were claimed to be high. Second, data exist which show that, on balance, in the air and water areas, environmental programs provide net economic benefits. Third, with respect to the unions, they may have concluded that environmental programs promote better working conditions and do not cost jobs. Macroeconomic analyses performed for the Council on Environmental Quality (CEQ) and EPA in 1975 and 1978 found that environmental programs have increased rather than decreased employment.¹⁰

In sum, the states have not been prominent or visible actors in developing the federal/state relationships found in the environmental regulatory programs. As a result, it is probably fair to conclude that the federal/state relationships found in the statutes have not imposed on the states in ways which the states strongly oppose.

The Outcome: Federal/State Environmental Regulatory Relationships in the Statutes

Appendix A provides a discussion of the background, regulatory scope, and state role for each of the major environmental regulatory programs except the Clean Air Act, the Clean Water Act, and the Resource Conservation and Recovery Act, which are covered in William Pedersen's paper. The basic conclusion that one can draw from these analyses is hardly surprising: there are almost as many different federal/state relationships as there are environmental regulatory programs. On the other hand, there are important similarities among the programs. Four of the key issues are discussed below.

Permit Programs

Why were permits not used to control air emissions from existing sources? Except for the regulation of public water supplies under the Safe Drinking Water Act, the Clean Air Act is the only environmental regulatory program that does not rely primarily on permits for accomplishing its objectives.

The reasons stem from the fact that the Clean Air Act was the first comprehensive environmental regulatory program to be enacted which provided the federal government with a dominant role in the pollution abatement process. At that time, state pollution control efforts in both the air and water pollution control areas were based on establishing ambient air quality objectives, goals, or standards, and then applying emission controls on individual sources, or seeking to persuade individual sources to reduce their emissions. Thus, the basic air pollution control models for the federal government were these ambient air quality systems being utilized by the states. No extensive body of criticism existed which indicated that the ambient air quality approach should not be used, nor was there substantial literature which extolled permit programs as excellent regulatory devices. In addition, the concept of using best available technology or other technology standards as the measure of pollution control performance to be achieved by the regulated entity was not well developed.

By 1972, however, when the Clean Water Act was enacted, much had changed. First, the initial experience under the Clean Air Act had demonstrated that utilizing ambient air quality standards and state implementation plans as the pollution control mechanism was far more complex and difficult than had been imagined. Second, the federal government had developed an understanding of permit programs and how to apply them as a result of the Refuse Act Permit Program, developed by CEQ and EPA to control discharges into navigable waters under the 1899 Rivers and Harbors Act. Third, sufficient academic and administrative analysis of the efficacy of technology-based pollution control measures existed to support the validity of the concept. As a result, Congress decided not to rely on ambient water quality as the primary basis for setting water pollution control standards and for determining compliance. In addition, Congress determined that it would place primary reliance on technology-based pollution control requirements rather than on effluent charges or emission taxes.

The result was enactment of the national pollutant discharge elimination system (NPDES) or the Section 402 permit program of the Clean Water Act and the use of permit systems in essentially all of the environmental regulatory programs that have been enacted since 1972. William Pedersen has recently written an article recommending the adoption of a permit system for the regulation of emissions from existing sources under the Clean Air Act.¹¹

A Comparison of FIFRA and TSCA

Why do the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (1972) and the Toxic Substances Control Act (TSCA) (1976) differ so significantly in the role they grant the states when both laws are designed to regulate the use of toxic types of substances in interstate commerce? TSCA is essentially a completely federal program. With respect to the item regulated, the states have no role. FIFRA, on the other hand, permits states to regulate the same items which are regulated by the federal government, and a state action granting a pesticide registration is a valid registration under all provisions of FIFRA within that state.

There are two basic reasons for this outcome. First, most pesticide uses are in fact very localized: their registration is based on the type of local pest which is the target of the pesticide program, on local soil and plant types, and on local weather conditions. Second, states had been regulating[12 ELR 15079] the uses of pesticides for years and therefore had the personnel and the expertise to do the job.

Why then was there a need for a broad, comprehensive federal law?—Because many states were not regulating pesticide uses effectively, so that establishing, in effect, national minimum standards was important to protect the environment and people's health from the misuse of pesticides. It is interesting to note that FIFRA is one area (the Endangered Species Act is another) where Congress strengthened the states' role after initial enactment of a broad, comprehensive federal regulatory scheme.

Regulation of Land Use

Is there a reason why the statutes directly¹² regulating land use or disposal are the most recent statutes enacted—i.e. Resource Conservation and Recovery Act (RCRA); Surface Mining Control and Reclamation Act (SMCRA)? The answer is probably that of all environmental media and issues, land and land use have been considered primarily state responsibilities. Thus, for example, a national land use planning statute was proposed in the early 1970s, but was not enacted into law. And TSCA, which regulates the manufacture, processing, distribution in commerce, use, or disposal of chemical substances or mixtures, explicitly preserves for the states the authority to regulate the disposal of chemical wastes, i.e., no federal regulation under TSCA could require disposal of a chemical substance or mixture which would result in a violation of a state or local law. It was not until RCRA, which was enacted after TSCA, although in the same year—1976—that Congress enacted a comprehensive regulatory scheme which affected directly state discretion governing land use and land disposal of specific matters—in this case, hazardous wastes.

Lack of State Participation

Are there common reasons why states do not accept responsibility for implementing and administering environmental regulatory programs? There appears to be a common stated reason—the burdens are too great in terms of the cost, number of people, and levels of expertise required. But, if this were the reason, one would expect more uniformity among the state decisions. Instead, for example: Oregon and Pennsylvania find the Safe Drinking Water Act a program for which they do not wish to assume responsibility, while they have chosen to assume responsibility for RCRA; on the other hand, Washington and Michigan have reached just the opposite decisions regarding these two programs; and Indiana and Wyoming have chosen to stay out of both programs. In sum, for each environmental regulatory program, each state makes a specific, independent decision whether to undertake responsibility for the program, and the decision is essentially independent of its decision with respect to other programs.

Conclusion

In conclusion, the federal/state relationships found in the environmental regulatory statutes reflect variety more than similarity. This demonstrates that the federal government is not acting autocratically and dictating state behavior in the environmental area; otherwise, one would expect greater uniformity. In addition, as the survey of environmental regulatory statutes set out in Appendix A indicates, the statutes provide broad latitude for altering federal/state relationships without amending the statutes.

The New Federalism: Its Effect on Federal/State Relationships

As noted above, the New Federalism is based on the premise that there is "too much federal control" and that the federal role needs to be diminished. The concept rests on a basic mistrust of the validity or worth of national governmental decisions and on strong support for marketplace solutions. Regardless of the merit of this argument in general, if we assume general agreement on the need to abate pollution to some extent, then the market cannot solve environmental problems without significant exercise of regulatory authority by the federal government. Pollution is an "externality" or free good which the market will allocate only if the government prices it in some manner. Since air and water pollution, for example, can be controlled to some minimal level only through some form of national government action, one cannot achieve "better" pollution control decisions simply by turning the issue back to the states.¹³

So far under the New Federalism the Administration has not sought to change federal/state relationships in the environmental regulatory area by amending the statutes to change the prescribed responsibilities. Instead, the Administration is seeking change by reducing the federal involvement in pollution control programs. Federal dollars and personnel committed to environmental regulation are being drastically reduced. Since the statutory structure regarding federal/state responsibilities remains the same, this cutback is likely to result in one of three actions.

States, whose resources are scarce, may choose to do the best they can while maintaining the same level of resource commitments as existed prior to the federal cutback. While it is possible that resources were being inefficiently allocated to environmental control so that the reductions would not affect pollution abatement results, state environmental control agencies have indicated that in fact the federal cutbacks will mean less pollution abatement. Second, states could seek to make up for the loss of federal resources by increasing their own resource commitments to these programs. This approach would be designed to help pollution abatement remain constant.

Third, and of most interest, the New Federalism could have the perverse effect of producing greater federal responsibility for environmental regulatory programs which will be met with relatively less resources than was originally contemplated by federal decisionmakers. As noted above and in the Appendix, for most of the environmental regulatory programs states can choose whether they wish to take major responsibility for a program or not. With reduced federal participation, a state may decide that it does not want the responsibility—and the political liability—for a program it cannot implement adequately, so it will opt out and return the program to the federal [12 ELR 15080] government. It has been reported that as of October 1981 due to insufficient resources at the state level three states have returned environmental control programs back to EPA: Idaho returned to EPA all responsibility for its air quality program; Wyoming returned to EPA its hazardous waste management grant; and Iowa returned to EPA responsibility for its Safe Drinking Water Act program.

In summary, it does not appear that federal/state relationships created by the federal environmental regulatory programs have overreached the states in ways that need correcting through statutory change. In addition, problems in the national pollution abatement effort do not appear to be due to the federal/state relationships created by the statutes. Sufficient discretion and flexibility exist under the statutes to adjust the federal/state relationships if necessary to produce better or more efficient government decisions.

To increase state participation in the Clean Water Act NPDES program, however, it may be necessary to amend the Act. In some states regulation of water pollution is split among several agencies, and the states do not want to reorganize their governmental structures in order to gain authority to administer the NPDES program. Some contend that a statutory amendment is necessary in order to have partial delegation of the program.

The basic issues involved in developing federal/state relationships in the environmental regulatory area are ones which have been there from the outset. The first is the political or practical one concerning the behavior of the federal and state agencies. Federal officials must be particularly sensitive to determining the types of behavior which will elicit the most cooperative responses from state agencies. This issue has been and will continue to be of central concern to the effective implementation of our environmental programs. The second issue is a budgetary one. Federal cutbacks are forcing the states to make difficult decisions about what level of pollution abatement and environmental enhancement should be achieved. In this respect, the New Federalism is effectively either shifting significant responsibility to the states for national environmental protection, if the states accept it, or substantially cutting back government involvement—both state and federal—in environmental programs.

Areas of Enhanced State Responsibility

At least three federal environmentally related but essentially non-regulatory programs exist in which states have been very active participants in the legislative process and in which the legislation is designed to enhance state authority. All three involve legislation affecting land use. They are the Coastal Zone Management Act of 1972; the Outer Continental Shelf Lands Act Amendments of 1978; and nuclear waste legislation (pending).

The common regulatory feature of these three programs is that they provide (or propose to provide) states with authority which is designed to limit the authority of the federal government to act in situations where the government would not otherwise be so constrained. A brief description of the origins of the state role in each legislative program provides a useful basis for analysis.

The Coastal Zone Management Act was enacted in 1972. Its origins stem in part from the first report of the Commission on Marine Science, Engineering and Resources created by Congress in June 1966. The first chapter of this report was titled, "Management of the Coastal Zone." During development of the Coastal Zone Management Act, Senator Henry Jackson's proposed National Land Use Policy Act of 1971 was introduced and considered by the Committee. Thus, the Coastal Zone Management Act (CZMA) could well represent the extent to which Congress decided it wanted to go in establishing mechanisms, conditions, and criteria for guiding national land use patterns.

CZMA provides grants to states to assist them in developing coastal zone management programs or plans which govern uses of land and water in the coastal zone. These plans must be approved by the Secretary of Commerce. The Act provides grants to states to assist them in meeting the costs of administering or operating the state's coastal zone management program. It also provides grants for preserving and restoring areas of the coastal zone. The grants can cover as much as 80 percent of the relevant costs.

The program contains three key regulatory features. First, the Secretary may not approve a state coastal zone management program unless the program provides that the state has authority to control land and water uses within the coastal zone. Thus, the Act provides significant incentives to induce states to develop land use regulatory controls where none had existed. Second, the legislation requires federal activities to be, to the maximum extent practicable, consistent with a state's coastal zone management program. Third, applicants for any federal license or permit to conduct an activity affecting land or water use in the coastal zone must obtain a state certification that the activity is consistent with the state's coastal zone management program. The federal government has authority based on national security grounds to override state determinations that approval of a proposed federal permit or license would be inconsistent with a state's plan.

The Outer Continental Shelf Lands Act Amendments of 1978 respond in major part to the same concerns which produced the CZMA. Under the OCS Lands Act Amendments, states are given major roles in participating in the development of five-year leasing plans and individual lease sales. Any action by the Secretary of the Interior not to adopt reasonable state recommendations must be explained in writing and sent directly to the Governor, as well as to the President and Congress for their review, before a final decision is made in approving the plan. The applicable standard for rejecting a state recommendation is one of balancing the national interest and the well-being of the citizens of the affected state. Under both programs, and particularly under the Coastal Zone Management Act, the state authority and ability to influence federal decisions which might affect the uses of land or water within a state were significantly expanded. By according states important participating roles, by providing them with procedural protections, and by providing for judicial review, the state's political and bargaining powers were strengthened considerably as well.

In similar fashion, the current debate over legislation for disposing of high-level radioactive wastes involves deciding how much authority to grant states—both in real terms, such as veto authority, and in practical terms, such as providing procedural rights which translate into bargaining and political power. Although Congress has the power to preempt state authority completely and to act without formally consulting with the states or granting them any significant role in the decisionmaking process, this is not the likely outcome. A concept which has had significant [12 ELR 15081] support during the recent debates is one of "consultation and concurrence." In this formulation "concurrence" does not mean giving a state veto authority. The goal is to obtain state agreement for locating any high-level radioactive waste disposal facility in a state. An extensive federal/state consultation process is proposed so as to ensure full consideration of state interests.

For each of these pieces of legislation, the federal/state relationship is being structured in a different manner than is found in the environmental regulatory programs discussed above. Analytically, however, the state interest is no different in the areas covered by these three programs than in the environmental regulatory areas. The lands being affected are not state lands. In most cases, the proposed federal or private activity is not one which would conflict with an existing state regulation or other exercise of a state's police power authority. Moreover, as noted above, the federal government has authority to preempt the regulatory field in order to protect national welfare or enhance environmental quality. Why then the different outcome?

The basic reasons seem to be these. First, the activity being "regulated" tends to cause severe adverse environmental effects in a focused area within the United States. The area can easily be predicted; there will be only a few such areas within the United States, and the determination of the area will result from the proposed federal decision. That is, the activity will effectively be "sited" by the federal decision and a relatively small group of citizens will endure adverse effects while the activity as a whole provides net national benefits. Second, the environmental effects tend to be fairly dramatic, visible, or significant. This is particularly true of high-level radioactive wastes. Third, citizen opposition to the activity is usually strongly expressed and determined. This is the type of citizen concern which generally wields significant political power.

The result is federal legislation which grants states enhanced power in determining federal decisions. It seems likely that for issues such as high-level radioactive waste disposal Congress will act gingerly and will be wary of exercising what is in effect an eminent domain function.

APPENDIX

A SURVEY OF FEDERAL AND STATE RELATIONSHIPS UNDER FEDERAL ENVIRONMENTAL LAW

To provide a comprehensive picture of how Congress has structured the relationships between the federal and state governments in the environmental regulatory area with respect to standard setting, permit issuance, enforcement, and other important factors these relationships are described below for:

Toxic Substances Control Act (TSCA)

Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)

Comprehensive Environmental Response, Compensation, and Liability Act (Superfund)

Safe Drinking Water Act (SDWA)

Endangered Species Act

Surface Mining Control and Reclamation Act (SMCRA)

National Environmental Policy Act (NEPA)

Background

TSCA was enacted in 1976 to respond to concerns widely expressed since 1970 over the unregulated introduction into commerce of toxic chemicals. In 1971 the Council on Environmental Quality proposed legislation to deal with this problem. Bills were passed by the Senate and House in the 92d and 93d Congresses, but the bills died in conference. Thus, the concept of federal regulation of the production, manufacture, and distribution of chemicals dates from the early 1970s, when the Clean Air and Clean Water Acts were passed.

At the outset, it is important to note that TSCA, unlike the other environmental statutes, requires the EPA Administrator to rely on federal environmental statutes under EPA's jurisdiction other than TSCA if the 'risk' to health or the environment associated with a chemical substance or mixture could be eliminated to a sufficient extent by 'such other laws'—unless the Administrator determines that it is 'in the public interest to protect against such risk by actions taken under this Act.' Section 9(b). In addition, TSCA provides a procedural device to produce regulation by other agencies under their organic statutes of risks and problems that would otherwise be regulated under TSCA. Section 9(a).

Regulatory Scope of the Act

Unlike the Clean Air, Clean Water, Safe Drinking Water and the Surface Mining Control and Reclamation Acts, TSCA's regulatory system is not based on the development and promulgation of national pollution control standards. Instead, EPA is given authority to regulate chemical substances or mixtures if "there is a reasonable basis to conclude that the manufacture, processing, distribution in commerce, use, or disposal of a chemical substance or mixture … presents, or will present an unreasonable risk of injury to health or the environment." Section 6(a). The basic regulatory authority of TSCA allows EPA by rule:

• to prohibit the manufacture, processing, or distribution in commerce of the substance either entirely, for a specific use, or for a particular use at a concentration that is in excess of a specified level;

• to limit the amount of the substance which may be manufactured, processed, or distributed in commerce on a categorical basis, for a specific use, or in a particular use at a concentration that is in excess of a specified level;

• to require that the substance carry warnings and instructions regarding its use;

• to require producers to create and maintain certain manufacturing and processing data;

• to prohibit and/or prescribe disposal methods for such substances;

• to require notice of risks to be given to distributors and others in possession of the substance and to the public;

• to require replacement or repurchase of the substance from those to whom the notice was given.

In addition, EPA can require that certain substances be tested in order "to develop data with respect to the health and environmental effects" of the substance. Section 4. As a general matter, no manufacture of a "new chemical substance" and no manufacture of a chemical substance as a [12 ELR 15082] "significant new use" can occur unless the manufacturer complies with the premanufacture notification requirements of the Act. Section 5. Based on information produced through the premanufacture notice process, EPA may issue orders prohibiting or limiting the manufacture, processing, distribution in commerce, use, or disposal of such substances. Section 5(e).

Finally, EPA may bring civil actions in U.S. District Court for injunctive relief regarding substances which pose an "imminent hazard," (Section 7) or, under certain limited circumstances, an "unreasonable risk." Section 6(f)(3).

State Role

Congress preempted the states from playing any significant role in the major new regulatory functions established by the Act. States may not continue in effect any testing requirement which is similar to one prescribed by EPA under Section 4 of the Act. States may not regulate chemical substances or mixtures to protect against a risk of injury to health or the environment unless the state requirement (1) is identical to the EPA requirement; (2) is adopted under the Clean Air Act or other federal law; or (3) prohibits the use of such substance or mixture in the state (other than its use in the manufacture or processing of other substances or mixtures). States may petition EPA to be exempted from the prohibition against their exercising regulatory authority to protect against risks of injury to the health or the environment if the state can meet three standards: (1) compliance with the state requirement would not result in violation of TSCA; (2) the state requirement provides a significantly higher degree of protection from the risk than the TSCA requirement; and (3) does not unduly burden interstate commerce. These standards are difficult to meet.

Except for the preemptions noted above, TSCA specifically preserves state authority to regulate chemical substances and explicitly preserves state authority to regulate the disposal of chemical substances. In prescribing disposal requirements for chemical substances, EPA may not require any person to take any action which would violate state laws or requirements. Of course, hazardous waste disposal requirements established by the Resource Conservation and Recovery Act (RCRA) modify this result, since RCRA establishes federal requirements for disposal of hazardous wastes and then allows a state to administer the program within the state if the state program meets federal requirements.

Federal Insecticide, Rodenticide and Fungicide Act (FIFRA)

Background

Federal regulation of insecticides dates from at least 1910. The major predecessor of FIFRA was enacted in 1947, and has been amended many times. The most recent amendments begin in 1972, when the current structure of the Act was established.

Regulatory Scope of the Act

The basic regulatory authorities granted EPA under FIFRA are to register pesticides for uses, which includes classifying the pesticides for general uses and/or restricted uses, certifying applicators of pesticides, and issuing experimental use permits for pesticides. Pesticides are registered based upon submission of data, including detailed test data, as required by the Act. EPA is then required to register a pesticide if the Administrator determines:

1. "its composition is such as to warrant the proposed claims made for it;"

2. "its labeling and other material comply" with the Act;

3. "it will perform its intended function without unreasonable adverse effects on the environment;" and

4. "when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable effects on the environment." Section 136a(c)(5).

In general, if a pesticide meets criterion (4), it is classified for general use; if additional regulatory restrictions are necessary to prevent unreasonable adverse effects on the environment, it is classified for restricted use. Section 136a(d).

For certifying applicators of pesticides, EPA must conduct a program, in consultation with the Governor of the relevant state, that meets criteria specified in the Act. Section 136b(a)(1). Finally, experimental use permits can be issued by EPA when the Administrator determines that the applicant needs a permit in order to gather the information necessary to register a pesticide. Section 136c(a).

State Role

Unlike most of the federal environmental regulatory programs, under FIFRA the states, by statute, have a major role.

(a) Registration of Pesticides

The state role in the registration of pesticides operates at two levels. First, states are granted general authority to regulate the sale or use of any federally registered pesticide as long as state regulation does not permit any prohibited sale or use. Section 136v(a). A state may also provide for the regulation of additional uses of federally registered pesticides which are prepared for use within that state if registration for such use has not been denied, disapproved, or cancelled by EPA. This state registration authorizes distribution and use of the pesticide only within the state; however, the registration is otherwise valid under other authorities of the Act. Section 136v(c)(1). The state's broad authority to register pesticides can be suspended by EPA if it finds that the state cannot exercise adequate controls to ensure that the registration will comply with the Act or has not exercised adequate control. Section 136v(c)(4).

Second, when EPA is considering whether to register a pesticide, a state determination that a pesticide is efficacious establishes a presumption that the Administrator shall waive data requirements concerning efficacy for use within that state. Section 136a(c)(5).

(b) Applicator Certification

Over the 1972-1978 period, this portion of the Act was amended twice in order to reduce the federal role and enhance the state role. Under current law, EPA conducts certification only in such states where the state plan has not been approved. In these states, as noted above, EPA must conduct the program in consultation with the Governor of the state. Before implementing a program within a state, EPA must provide a review and comment procedure on EPA's proposed programs and must hold hearings in the state if requested to do so by the Governor. EPA may not require that private applicators take an exam to establish competency. Section 136b(a).

The requirements that a state plan must meet to gain authority to certify an applicator are based on three factors—the plan must (1) designate a state agency with statewide authority to conduct the program; (2) provide [12 ELR 15083] that the state will make adequate reports to EPA; and (3) contain satisfactory assurances that the state will have (or has) the legal authority and qualified personnel to carry out the plan and will devote adequate funds to the plan, and that the state certification standards conform with those established by the Administrator (which, as noted above, result from a process involving intensive state involvement). Section 136b(a)(2).

(c) Experimental Use Permits

The Act authorizes the states to issue experimental use permits under conditions similar to those noted above for certifying applicators.

Enforcement

In 1978, Congress amended FIFRA to provide that states "shall have primary enforcement responsibility for pesticide use violations" when EPA determines that the state has adopted "adequate pesticide use law and regulations," has adopted and is implementing "adequate" enforcement procedures, and will keep records and make reports as required by the Administrator. Section 136w-1(a). Moreover, any state that has entered into a cooperative agreement under the Act by which EPA delegates authority to a state "to cooperate in the enforcement" of the Act shall have primary enforcement responsibility for pesticide use violations. Section 136w-1(b).

Overview

In contrast to the Clean Air and Clean Water Acts, FIFRA emphasizes that states are to play a very significant role in implementing the Act. In contrast with the Surface Mining Control and Reclamation Act and the Clean Water Act, the standards governing delegation of the FIFRA permit program to the states are much less strict or demanding. In contrast with TSCA, FIFRA grants the states a major role in the basic regulatory program established by the Act, although both acts involve the regulation of the use of goods in interstate commerce.

Comprehensive Environmental Response, Compensation, and Liability Act (Superfund)

Background

Superfund was enacted in 1980 in response to public health problems caused by releases and disposal of hazardous wastes, made evident by the abandoned hazardous waste dump at Love Canal, New York, and the discovery of the Valley of Drums in Kentucky. The proposed federal legislation was controversial. Superfund was passed in the "lameduck" days of the 96th Congress only after several of the more controversial elements were removed, including provisions which would have provided compensation for personal injury, and after the compensation fund was reduced from $4.1 billion to $1.6 billion.

Regulatory Scope of the Act

Superfund is designed to clean up releases of hazardous substances rather than to regulate the use of products, the emission or discharge of substances, or the disposal of wastes. Thus, the Act does not establish national pollution control standards or require individuals to obtain permits. The reporting, clean-up, liability, and enforcement provisions of the Act, however, establish a regulatory regime which will affect people's behavior. The basic elements of this regime are:

• Any release¹⁴ of a reportable quantity of a hazardous substance into the environment¹⁵ must be immediately reported to a National Response Center, Section 103(a);

• Whenever there is a release or substantial threat of a release of a hazardous substance, the federal government is authorized to take responsive action, including removing the substance and otherwise undertaking remedial action, Section 104(a);

• Owners and operators of facilities that generate or that dispose of hazardous substances, transporters of hazardous substances who selected the disposal site, and those who by contract or agreement arranged for the disposal of hazardous substances, of which there was a release, are strictly liable for any removal or remedial actions and other response costs and for damages to natural resources caused by the release, Section 107(a).

In short, essentially any person who has any relationship to a release of hazardous substances is strictly liable for any clean-up activities by public authorities or by other persons who are authorized to act. Needless to say, these requirements have made every corporate entity in the country intimately concerned about its handling of hazardous wastes and very interested in preventing releases.

State Role

Five elements of the statute guarantee states a major role in implementing the Superfund program.

First, unless there is an emergency situation which poses an immediate risk to public health, welfare, or the environment and federal action is necessary or the affected state has become a cooperating party, the federal government's responsive actions (i.e., cleanup) can continue only until $1 million has been expended or six months have passed. Section 104(c)(1).

Second, remedial actions (i.e., those designed to provide a permanent remedy) can be undertaken only after consulting with the affected states and only if the state agrees to assure all future maintenance of the removal and remedial actions provided, to assure the availability of a hazardous waste disposal facility for offsite storage or disposal, and to pay 10 percent of the remedial costs.¹⁶ Section 104(c)(3).

Third, responses to releases of hazardous substances must be in accordance with the requirements of a National Contingency Plan developed by EPA after an informal rulemaking proceeding. The Plan spells out "appropriate rules and responsibilities for the Federal, State, and local governments." Section 105(5).

Fourth, in developing a national list of priority 'releases or threatened releases' or facilities which are expected to be the targets for clean-up response actions EPA must consider [12 ELR 15084] any priorities established by the states, and among the one hundred highest priority facilities there shall be at least one from each state which shall be the facility designated by the state as presenting the greatest danger to public health, welfare, or the environment, Section 105(8)(B).

Fifth, the federal Superfund contains only $1.6 billion, which cannot cover the clean-up costs for many sites. While responsible parties are required to reimburse the Fund for cleanup actions, it is expected that the federal government will be able to be directly involved in the clean-up of only from 100 to 400 sites, or from 2 to 8 per state, on average. This leaves the majority of the hazardous waste site clean-up effort to the states.

In sum, Superfund does not at all preempt state activity for cleaning up releases of hazardous substances and in fact welcomes state participation.

Safe Drinking Water Act (SDWA)

Background

The Safe Drinking Water Act was enacted in 1974 in response both to the occurrence of many outbreaks of disease which were caused by contaminants in drinking water and to public concern over exposure to low-level contaminants, particularly carcinogens, in drinking water. Two regulatory programs are established by the Act, one governing public water supplies and one governing underground injections which could endanger drinking water supplies.

Regulatory Scope of the Act

(a) Public Water Supplies

For public water supplies, EPA is required to promulgate national primary drinking water regulations which specify maximum contaminant levels or require the use of specified treatment techniques for contaminants which may have an adverse effect on the health of persons. Congress required EPA to rely principally on a National Academy of Sciences study and report, commissioned pursuant to the SDWA, in setting the primary drinking water standards. Section 1412(b)(1)(B), (e). In addition, the standards will be determined pursuant to an informal rulemaking process which allows interested persons to participate in the process and to submit materials for the agency's consideration. Section 1412(b). EPA is also required to promulgate national secondary drinking water regulations which specify maximum contaminant levels which are necessary to protect public welfare. Sections 1412(b)(3), (c); 1401(2).

Compliance with these standards is accomplished through a monitoring, surveillance, and inspection system rather than by the issuance of permits, Section 1413(a), and through enforcement actions, Section 1413.

(b) Underground Injections

For underground injections, EPA is required to promulgate regulations which shall establish minimum requirements for effective programs to prevent underground injections—i.e., the placement of fluids underground by means of wells—which endanger drinking water sources by causing a public water system to fail to comply with national primary drinking water regulations or by otherwise adversely affecting human health. Section 1421(b)(1). Compliance with these standards is accomplished by the issuance of permits or the authorization of an injection by rule, and by the use of inspection and monitoring systems, Section 1421(b)(1), and enforcement actions, Section 1422.

State Role

There is essentially no preemption of state authority under the Act: "Nothing in this title shall diminish any authority of a State … to adopt or enforce any law or regulation respecting drinking water regulations or public water systems," except that a state cannot enact a law which would permit a person to violate the Act. Section 1414(e).

In establishing the primary and secondary drinking water regulations and the underground injection regulations, the state's role is no different from any other interested person: it can submit comments and materials and otherwise participate in the informal rulemaking process. The Act, however, accords the state primary enforcement responsibility for both the public drinking water and the underground injection regulatory program and primary responsibility for issuing permits for underground injections.

For public water supplies, EPA is required to approve state enforcement programs for which the state:

• has adopted regulations which are no less stringent than the national primary and secondary regulations;

• has adopted and is implementing adequate enforcement procedures, including making inspections and conducting monitoring as required by EPA;

• will keep records and make reports as required by EPA;

• has adopted and can implement a plan for providing safe drinking water in emergencies; and

• if the state will grant exemptions or variances, that the actions are no less stringent than the conditions prescribed in such actions by the SDWA, Section 1413(a).

For underground injections, EPA is required to approve state enforcement programs for which the state:

• has adopted an underground injection control program which meets the requirements of the EPA program;

• will keep records and make reports as required by EPA, Section 1422(b);

• shall include inspection, monitoring, record keeping and reporting requirements; and

• will apply to all persons including federal agencies, Section 1421(b)(1).

These requirements for state enforcement and permitting control are much less detailed and stringent than the Clean Water Act and Surface Mining Control and Reclamation Act requirements and are slightly more onerous than those prescribed by TSCA. The legislative history makes clear that Congress wanted to disrupt state practices in the regulation of drinking water as little as possible and to restrain EPA from developing overly ambitious, detailed, and comprehensive regulations.¹⁷ In addition, the Committee underscored that it did "not intend to convey to EPA the authority to impose a siting permit system …;" responsibility for these decisions rests with state and local governments; "EPA is expected … to establish the most limited or narrow system of procedural review necessary to assure [12 ELR 15085] compliance." Id., at 6467. (These comments by the Committee occur because the primary drinking water regulations are required to include siting criteria, Section 1401(1)(D)(ii)).

Endangered Species Act

Background

Congress first enacted a broad endangered species protection act in 1966 in response to a 1965 letter from then Secretary of the Interior Udall. The Secretary submitted a legislative proposal based on one of the recommendations regarding endangered wildlife by the First World Conference on National Parks held in Seattle in 1962. The endangered species protection statute was significantly strengthened in 1969.

In 1973, Congress substantially amended the Act and established the basic structure of the current Act in order to provide the Secretary of the Interior with more effective management tools and authority to act in a timely manner to save vanishing species. For the first time, Congress also established specific roles for the states because Congress recognized that the federal government 'should not preempt efficient programs,' because 'many established state agencies could in the future, or do now provide efficient management programs for the benefit of endangered species.'¹⁸

In 1978, after the Tellico Dam controversy, Congress amended the Act to create the Endangered Species Committee, at times cynically referred to as the God Committee, because of its authority to permit agency action to proceed which might result in the extinction of an endangered species.

Regulatory Scope of the Act

The regulatory scheme is based on determinations made by the Secretary of the Interior that a species is an endangered or threatened species because of (1) the present or threatened destruction, modification or curtailment of its habitat or range; (2) overutilization; (3) disease or predation; (4) inadequacy of an existing regulatory mechanism; or (5) other natural or manmade factors affecting its continued existence. 16 U.S.C. § 1533(a). The Secretary must maintain and keep current a list of all threatened and endangered species and promulgate such regulations as he considers necessary to conserve the listed species. Id. § 1533(c), (d). For fish and wildlife, the Act prohibits the importing, exporting or taking of a listed species, the possession, sale, delivery, carrying, transporting, or shipping of any species taken in violation of the Act, delivering, receiving, carrying, or transporting the species in interstate commerce, or the violation of any regulation issued by the Secretary. Id. § 1538(a). Similar prohibitions apply to endangered plants. Id. § 1538(b).

State Role

The Act preempted state authority to regulate and conserve endangered species only insofar as a state action would result in a violation of the Act. Otherwise state conservation laws remain valid and any state law respecting the taking of an endangered or threatened species may be more restrictive than the federal requirements. Id. § 1535(f).

Since 1973 the fundamental policy underlying implementation of the Act has been to cooperate 'to the maximum extent practicable' with the states. Id. § 1535(a). The Act requires the Secretary of the Interior to enter into cooperative agreements with states whenever the Secretary finds that a proposed state program meets the requirements established by the Act. For example, with respect to fish and wildlife, the Secretary must find that under the state program:

• the state agency has authority to conserve resident threatened or endangered species;

• the state agency has established an adequate conservation program for resident threatened or endangered species and has given the Secretary the plan;

• the state agency is authorized to conduct investigations to determine the status of threatened or endangered species;

• the state agency is authorized to establish programs, including land and habitat acquisition, for conservation of threatened or endangered species; and

• public participation will be provided for designating threatened or endangered species or, pursuant to plans, immediate attention will be given to conserving resident threatened or endangered species which are on the Secretary's list. Id., § 1535(c)(1).

These cooperative programs are to set out the respective actions which the Secretary and the states are to take in conserving threatened or endangered species. Id. § 1535(d)(2). In sum, the fundamental notion is cooperation between the federal government and the states pursuant to negotiated agreements, a concept which is also found under the Superfund program.

Surface Mining Control and Reclamation Act (SMCRA)

Background

SMCRA, enacted in 1977, evolved over a six-year period during which two surface mining regulatory programs were enacted (93d and 94th Congresses) but were vetoed by President Ford. While the lengthy legislative process resulted in changes being made to the original bill, the House Report notes that the

fundamental concept of "the strip mining bill" … has remained constant … [the current bill] would enact a set of national environmental performance standards to be applied to all coal mining operations and to be enforced by the State with backup authority in the Department of the Interior.¹⁹

Regulatory Scope of the Act

Only the regulatory program designed to control the environmental effects which result from surface mining of coal are assessed here. The basic regulatory tool of the surface mining program is the permit: "'no person shall engage in or carry out on lands within a State any surface coal mining operations unless such person has obtained a permit …" 30 U.S.C. § 1256(a). No permit can be approved unless:

• the permit application is complete and accurate and all requirements of the Act have been complied with;

• the applicant has demonstrated that reclamation can be accomplished;

• the regulatory authority has assessed the cumulative impact of all anticipated mining in the area on the [12 ELR 15086] hydrologic balance and the proposed operation has been designed to prevent material damage to the balance outside the permit area;

• the area is not with an area designated unsuitable for mining or designated for study for such designation; and if the area is west of the 100th meridian, west longitude, the operation

(a) will not, as a general matter, interrupt or preclude farming on alluvial valley floors that are irrigated; or

(b) will not damage the water quality or quantity that supply these floors.

The permit must require that the coal surface mining operations will meet the national environmental protection standards prescribed by the Act, which are numerous (more than twenty-five specific standards) and detailed, governing how the surface mining and reclamation activities shall be undertaken. 30 U.S.C. § 1265. The Act also prescribes detailed criteria which proposed state permit programs must meet in order to be approved and, in the event a state program is not approved, the requirements which the federal program must meet. In states which have approved programs, the Act requires the Secretary to inspect surface coal mining operations within the state to evaluate the administration of the approved state program. 30 U.S.C. § 1267. Finally, the enforcement provisions of the Act prescribe a number of functions for the federal government to perform, which include activities in states which have approved programs. 30 U.S.C. § 127.

State Role

In establishing the national environmental protection performance standards and other national programs promulgated by the Secretary of the Interior, the state participates like any other interested party in the rulemaking proceedings. The Act is designed to have the states become the principal implementors and enforcers of the Act's requirements by having state permit and other programs approved by the Department of the Interior. The requirements which the state must meet are more numerous and detailed than those prescribed for other state permit programs discussed above. After state programs are approved, the Act requires the Secretary of the Interior to conduct regular inspections of coal surface mining operations to determine if states are adequately implementing the program.

In sum, the federal presence seems as pervasive under this program as the most pervasive of the others discussed above.

National Environmental Policy Act (NEPA)

Background

NEPA was signed into law by President Nixon on January 1, 1970. The Act was authored primarily by Senator Jackson, with Senator Muskie and Congressman Dingell playing significant roles. The Act was not controversial and was passed with little debate. It is fair to say that no one foresaw the significant impact NEPA would have in affecting government decisions.

Regulatory Scope of the Act

The basic requirement of the Act that affects agency behavior is Section 102(2)(C), which requires federal agencies to prepare environmental impact statements for any "major federal action significantly affecting the quality of the human environment."

The courts gave life and regulatory authority to this requirement by holding that citizens could bring suit to enforce the provision and by granting injunctive relief, halting projects until the agency complied with the law by preparing an adequate environmental impact statement.

State Role

The Act applies only to the federal government; states have no special role in implementing NEPA. After enactment of NEPA, however, many states enacted "State NEPAs," which apply to state actions and, in some states, to private actions. Because the federal and state environmental impact statement requirements are so often quite similar, the Council on Environmental Quality, in promulgating regulations for implementing the Act, has required federal agencies to cooperate closely with state agencies on projects to which NEPA applies and to seek, insofar as is possible, to produce one environmental impact statement which will meet both federal and state requirements.

Discussion

GEORGE FREEMAN, JR.: An important point that underlies the problem with the New Federalism is not just which level of government is going to be in control, but where that governmental entity is going to get the funds to run its programs. The New Federalism throws the lead role back to the states without any way for them to raise the funds to carry out their ideas.

GUS SPETH: Funding certainly is a critical dimension to this whole problem. I do think states should have an enhanced role. But if the states do not have the resources to handle an enhanced role, the local expertise which they would bring to pollution control will be wasted. Several months ago state pollution control agencies in 44 states responded to a survey on the funding issue. Each state expected substantial reductions in the funding that would be available in the coming year. Thirty-four of those states indicated that they would be unable to carry out additional responsibilities.

Another aspect of the situation we must take notice of a the spectrum of federal/state relationships as they are drawn out on a long continuum. At one extreme is the paramount federal role in TSCA while the opposite end relates to state effectiveness in areas such as land-use regulation.

What may be needed more than a change in the laws is a change in attitudes— greater maturity in behavior, a sense of mutual objectives and professionalism and deference among the participants.

PARTICIPANT: The Secretary of State of North Carolina gave a presentation a month ago about the effects of New Federalism on the states. She pointed out the pressures the states are under from two sources—a substantial diminution of North Carolina's income and tremendous pressure to duplicate the New Federalism by delegating matters further down to the county and city levels. No matter what may be one's theoretical view of federalism, the picture was one of fragmentation and dissolution of programs across the board.

PARTICIPANT: Two of the negative aspects to the federal/state relation where the federal government has misconstrued [12 ELR 15087] its role are where the federal government takes over the states' roles only when it is glamorous to do so and in situations where the statutes' compliance dates were set so tightly that they merely bred litigation.

1. 426 U.S. 833 (1976).

2. See Maryland v. EPA, 530 F.2d 215, 5 ELR 20651 (4th Cir. 1975), District of Columbia v. Train, 521 F.2d 971, 6 ELR 20007 (D.C. Cir. 1975), Brown v. EPA, 521 F.2d 827, 5 ELR 20546 (9th Cir. 1975), all of which were vacated and remanded per curiam sub nom. EPA v. Brown, 431 U.S. 99, 7 ELR 20375 (1077); compare Pennsylvania v. EPA, 500 F.2d 246, 5 ELR 20618 (3d Cir. 1974) (upholding EPA's authority).

3. 431 U.S. 99, 103, 7 ELR 20375, 20376 (1977).

4. 452 U.S. 264, 11 ELR 20569, 16 ERC 1027.

5. 452 U.S. 314, 11 ELR 20581, 16 ERC 1048.

6. A 1980 decision by the U.S. Court of Appeals for the Sixth Circuit held that the provisions of the Clean Air Act which authorized an enforcement action by EPA against the state of Ohio to compel the state "to withhold registration from vehicles that do not comply with applicable pollution standards and procedures represents a lawful exercise by Congress of its power to regulate interstate commerce." U.S. v. Ohio Dept. of Highway Safety, 635 F.2d 1195, 1205, 11 ELR 20026, 20031 (6th Cir. 1980). The regulation being enforced in this case had been promulgated by EPA. In reaching its decision, the court noted that "[t]he regulation which EPA seeks to enforce does not require the state to adopt legislation, establish new regulatory agencies or change its procedures for registering vehicles…. Further, it does not appear that compliance will entail large expenditures by the State." Id.

This decision along with two other pre-Hodel decisions indicates that even under Usery the courts will uphold broad exercises of congressional power under the Commerce Clause to abate pollution and enhance the environment. See U.S. v. District of Columbia, 654 F.2d 802, 807, 11 ELR 20595, 20598 (D.C. Cir. 1981); U.S. v. Duracell Int'l. Inc., 510 F. Supp. 154, 11 ELR 20821 (M.D. Tenn. 1981).

7. A recent Congressional Research Service study traces the early history of federal air and water pollution control laws and the results of state laboratory pollution control efforts: "Federal-State Relations in Transition: Implications for Environmental Policy," a report prepared by the Congressional Research Service, Library of Congress, for the Senate Committee on Environment and Public Works (February 1982) (Serial No. 97-7). In addition, a book by J. Clarence Davies, The Politics of Pollution (Pegasus, N.Y. 1970), examines various factors which were involved in developing air and water pollution control legislation.

8. A recent article surveys state pollution control statutes. David P. Currie, "State Pollution Statutes," 48 U. CHI. L. REV. 27 (1981). The article discusses the wide variety of state statutes which exists in the air and water pollution control areas.

9. It is helpful to dismiss at this point the notion that industry always favors a stronger state role in environmental programs. In fact, industry often favors establishing national environmental standards, if standards are to be set, so that its production and manufacturing processes can be designed to meet that standard rather than fifty different standards. For this reason, industry does not prefer the authority granted states under most of the environmental programs to set standards stricter than the national standards.

Because New Federalism could mean increased regulatory activities by the states, it is not clear that industry favors the concept. The CRS Report cited in footnote 7 supra notes: "The prospect today of reemergence of varying State standards, flowing from the Administration's proposed shift of responsibilities from the Federal level, has begun to concern some persons in industry. For example, Chemical Week recently noted that while the chemical industry has been focusing on Federal regulatory activities, there has been a virtual explosion of State legislative and regulatory activity…. Chemical Week cautioned that the industry may find itself 'millioned and billioned' to death by State and local regulations" (at pp. 46-47). See also, id., at 5, 12.

It is probably true, however, that industry prefers state rather than federal responsibility for enforcement and administration of the programs. The CRS Report cited in footnote 7 supra states: "Similarly, industry may have strong political influence at local and State levels to affect the outcome and/or pace of government's efforts to achieve compliance with established standards…. Since industries are important to local economies, they may have considerable bargaining power. This is likely to be especially true of marginal industries contending that the costs of compliance will force shutdown and local unemployment" (at p. 42).

10. Council on Environmental Quality: Tenth Annual Report 658-659 (1979); Sixth Annual Report 536 (1975).

11. 129 U. PA. L. REV. 1059 (1981).

12. Both the Clean Air Act and Clean Water Act affect uses of land, governing, for example, the ultimate siting of a plant because of its impact on air quality. And the Clean Water Act has a section devoted to areawide planning (Section 208). But neither of these acts directly regulates the use of land in the way that RCRA and SMCRA do.

13. Of course, there may be other reasons why the statutes should be amended. And, as FIFRA demonstrates, state interests in seeking a different relationship can be strong enough to warrant amendment.

14. "Release" includes any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.

15. "Environment" means navigable waters, waters of the contiguous zone, ocean waters of which the natural resources are under the exclusive management authority of the United States under the Fishery Conservation and Management Act of 1976, and any other surface water, groundwater, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.

16. If the release was from a state facility, the state must agree to pay at least 50 percent of the response costs.

17. See, e.g., Senate Report 93-1084, 93rd Cong., 2nd Sess., reprinted in 1974 U.S. Code Cong. & Admin. News 6452, at 6466 ("Nor are such regulations intended to permit [EPA] dictation of the ideal water system.").

18. Senate Report 93-307, 93rd Cong., 1st Sess., reprinted in 1973 U.S. Code Cong. & Admin. News 2989, at 2991.

19. H. Rep. No. 95-218, 95th Cong., 1st Sess., reprinted in 1977 U.S. Code Cong. & Admin. News 593, at 595.

12 ELR 15074 | Environmental Law Reporter | copyright © 1982 | All rights reserved