The design of state/federal relations during the last decade has evolved largely in response to the carrot of substantial federal funding and the stick of federal requirements for the structure of state regulatory programs. The resultant relationship has been controversial and stormy; in the last ten years, however, many trends in environmental degradation have been slowed and in some cases effectively reversed. It is certain that over the next decade federal funds will be increasingly scarce, and it is probable that regulatory requirements for state-administered programs will be eased. In light of this anticipated weakening of the two fundamentals of the state/federal relationship, will it be possible to continue the progress which has been made in protecting human health and the environment? Furthermore, if advances are to be made, what is the minimally acceptable federal role which must be maintained for state governments to be effective?

A dramatic change in the role of the federal government need not be viewed as necessarily disastrous since, at least as a theoretical proposition, the states are better able to implement regulatory programs for environmental protection. There are a series of unique qualities which state government brings to this effort upon which any restructuring of the state/federal relationship must be based and must strengthen.

Advantages to State Programs

In the first instance, the inherent legal authority of the states to regulate human activity affecting the environment may be even greater than that of the federal government. There are perhaps two fundamental concepts which provide the basis for environmental protection. The first of these is the police power which government can exert in order to protect the public health, safety and welfare. The second is authority to regulate commerce which is particularly vested in the federal government. While the commerce clause authority allows the federal government to extend authority quite broadly, it is not clear that the reach can be extended beyond what a state can do pursuant to the police power insofar as environmental protection is concerned. State regulation pursuant to the police power extends to a degree not available to the federal government and critical to environmental protection—namely, the authority to regulate land use decisions. Ultimately many environmental issues are a function of land use and may perhaps best be addressed in that context. To the extent that states wield that authority through zoning and similar powers they can be far more effective than the federal government.

The ability of a state to exercise legal controls over land use in order to manage its environmental concerns is also indicative of the pivotal role which states play with respect to most activities which generate impacts adverse to the environment. Through a wide range of activities which run [12 ELR 15092] from mere promotion through the provision of ancillary services such as transportation, and including financial assistance, states can play a critical role in controlling, allowing or prohibiting a wide range of economic activity which affects the environment. This constellation of authority with respect to specific activities is certainly unparalleled at the federal level and can provide unique opportunities at the state level to mitigate or prevent environmental harm.

In fact the recognition that such converging kinds of state authority provide an opportunity not only for environmental protection but also for total design of a state's social and economic, as well as environmental, future, has led many states to venture into the development of long-range plans for the environment, taking into consideration a wide range of factors and goals. It is only at the state level of government that strategic planning for the protection of the environment is taking place in a way which is at all realistically related to actual implementation and accommodation of other societal interests. There is no comparable comprehensive forward planning at the federal level. Such planning efforts are crucial to successful future management of human activity in a way which protects the environment.

The essentially local nature of state government suggests that there are a number of administrative strengths which are not found at the federal level. First, state decision makers are accessible to a broader cross-section of the population. This means that not just those who are affluent enough to travel to the nation's capital participate in and influence the decision-making process. It is as easy for the concerned homemaker to visit my office as for the official of a national steel-making concern. Secondly, the states may tailor environmental protection goals and standards to the actual conditions and needs with which they are confronted. Because they are close to, and familiar with, specific environmental needs, solutions can be designed which are most efficient for the particular circumstance. This intimacy also suggests that practical solutions to problems can be developed which are often preferable to theoretical standards derived from a national concern which is unrelated to actual conditions in the field. Frequently this intimacy is viewed as producing less environmental protection at the state level. This is not necessarily the result. The recent decision by EPA to allow 25 percent liquids in hazardous waste landfills was predicated, in part, on the fact that the zero liquids limitation was too difficult to measure. This rationale was wrong, since it is probably more difficult to measure 25 percent than 0 percent in the field and, in either case, determination of compliance would necessarily rest in the first instance with the field inspector who must exercise judgment. It was only after several states pointed out its practical absurdity, as well as environmental foolishness, that EPA withdrew the action. Finally, there are simply more people involved with environmental protection activities in the fifty states than there are at the federal level. A high proportion of these people are in the field actually determining that compliance is being achieved. And when violations are found the legal process of state judicial systems is frequently more effective and always less crowded than is the case with the federal courts.

The foregoing are several critical reasons why states could have been, and may yet be, the central focal point for government activity to protect the environment. Although today states carry the great day-to-day burden of such actions, a perception evolved early in the 1970s that the routine would be done by states only after forceful prodding from the federal government and that otherwise little progress could be anticipated as a result of state action. Perhaps the inevitability of that perception was not certain, but the apparent reality has obtained. States are perceived as having reluctantly assumed their responsibilities in response to the carrot and stick of the federal government.

The Federal Role

The federal control of state program design and direction sprang from enactment of a broad spectrum of legislation such as the Clean Air Act of 1967, the Federal Water Pollution Control Act Amendments of 1972 (FWPCAA), the Resource Conservation and Recovery Act of 1976, the Surface Mining Control and Reclamation Act of 1977 and others. All of this legislation is characterized by several essential features which were missing from their predecessors.

In the first instance, each act after 1967 mandated some form of minimum national standards which had to be met by industry. The form of these standards varied. For example, the Clean Air Act established a process for determining national ambient air quality standards which were, and remain, indicia of environmental quality necessary to protect the public. On the other hand, the FWPCAA of 1972 established a technology standard which was to be met unrelated to environmental quality. Regardless of the approach to standards, the proposition was developed that some national minimum norm was essential. Secondly, the various statutes provided for a regulatory program to be implemented by either the state or the federal government. This regulatory program varied greatly but had several common elements. The adoption of standards was mandated. Mechanisms were created for applying them to specific sources, either a permit, or, in the case of the Clean Air Act, the state implementation plan. Finally, an inspection and enforcement program was developed and made mandatory for the states. Of critical importance in this regard was the development of a process whereby the failure of states to implement an acceptable regulatory program resulted in the imposition of a federal program.

Over and above these direct requirements which imposed dramatic changes on most state public health protection programs, a vast bureaucracy began to grown in Washington, D.C., with the creation of the Environmental Protection Agency in 1971. This new federal agency not only was responsible for overseeing the foregoing regulatory program but had two other important functions. The first of these was the granting of substantially increased federal funds for administration of those state programs which were deemed to meet federal requirements. Of even greater importance was the increased activity of a federal research and development function within EPA. As environmental programs become more complies, of greater public concern, and more costly to solve, this federal scientific resource has been an asset which could not be duplicated among the states and is essential to developing a norm for private sector conduct.

Throughout the 1970s gradual accommodation developed between the states with their numerous site-specific problems and the federal government which was concerned [12 ELR 15093] with establishing a national program of environmental protection. It is perhaps not too exaggerated to state that by the close of the decade the largely successful joint administration of these programs was a tribute to the strengths of the federal system rather than to the genius of the drafters of the legislation. A unique aspect of this relationship is that a truly national program of environmental protection is being implemented largely through the fifty states' various administrative programs. Just as this relationship has settled into a routine and acceptable allocation of authority, however, it appears that another significant shift in emphasis is on the horizon as the current Administration evaluates the size of the federal budget and the appropriate role of the federal government.

While and attributes of state government described earlier suggest a primary role for the states in environmental protection activity, a truly national effort to safeguard the health of our citizens and preserve fragile ecosystems nonetheless requires a federal presence and several critical components in that presence. In order for states to continue to enhance their role at the front line of environmental protection, the federal government must be the central voice of a national commitment to protect health and the environment. The success of government action in this highly complex area which impinges so directly on other aspects of society cannot be assured in the absence of a mobilized and directed national consensus. Thus, while national opinion polls can express public concern and scientists may articulate fears about irreversible threats, unless the federal government positively reinforces these through articulation of a public purpose the maintenance of political consensus on a national basis erodes, resulting in weakening of activity at the local level. This erosion is even more negative in terms of a state's capacity to perform when the federal government not only abandons the center of the stage but begins to sound a contradictory call. The abandonment of a federal resolve to have clean automobiles or sewage treatment plants fractures the national purpose without which these difficult programs cannot be implemented. There is a unique responsibility, if not authority, placed with the federal government in this regard. Environmental protection is most fundamentally the protection of the health of the nation's citizens and the preservation of the natural ecosystems upon which our life, our commerce, our recreation and our culture depend. Failure of the federal government to stand in the vanguard in this national need will establish a vacuum which no state can fill and which will diminish their success.

In addition to maintaining a national consensus, the federal government must continue to establish national minimum standards for protecting the environment. There are two reasons for this. In the first instance, since environmental protection is designed to protect human health and basic natural systems the standards for attaining these purposes ought to be of uniform national scope. Citizens as they move from state to state ought not to be subject to varying threats to their health. Few ecosystems are defined by state political boundaries, and therefore the standards for their protection must necessarily be nationally determined. For example, in Maryland protection of the water quality of the Chesapeake Bay is of paramount concern. However, 50 percent of the fresh water flowing into the Bay comes from sources in Pennsylvania via the Susquehanna River. While Pennsylvania's requirements for discharges to the free flowing river may be perfectly adequate for a riverine system, they may not protect the estuarine system of the Bay. A federal presence is essential to assist the states to reach mutually agreeable programs protecting multi-state ecological systems. Secondly, national minimum standards are necessary in order to maintain equity among the states. No state or region should be able to decide to trade off some level of health protection in the expectation of short-term economic development advantages. This principle of equity has been a major reason for state political support for the legislation of the last ten years and is of critical interest.

In addition to establishing national standards, the federal government ought to continue exercising responsibility for actual implementation of certain pollution control programs with characteristics making them most amenable to a centralized national program. The most obvious example of this kind of program is the federal responsibility in assuring adequate emission standards to be met by automobiles. This program is essential in order for most states to meet carbon monoxide and ozone air quality standards; because it involves only a few national corporations and the products they produce, as opposed to their facilities, however, the program is much more effectively implemented by a national government than by the fifty states.

Finally, the federal government has, for several decades, been a prime source of funds to support state programs for environmental protection. These federal grants have always been used both to enhance the size of state efforts and to force those programs into a particular direction desired by the national interest. This was especially true during the 1960s when federal legislation did not impose detailed strictures on the design of state regulatory programs. In Maryland the dimension of this federal support is such that it provides about 40 percent of the total funds spent in environmental health protection. Interestingly enough, the federal share is smallest in those programs which are among the oldest—food and milk protection—at about 8 percent, and largest in the more recent programs—water and air—at 58 percent and 38 percent respectively.

Thus the federal dollar has become an absolutely essential ingredient in the development of state environmental protection efforts. The magnitude of that contribution is especially significant when one considers that over the last decade state funds going into these programs have remained generally the same or even grown smaller on a proportional basis. Thus in Maryland in 1970 these programs received about 1.3 percent of the state budget while that has dropped to 1.2 percent in 1982. In effect, the growth in size and associated responsibility of these programs during the past 'decade of the environment' has been almost entirely supported by the infusion of new federal dollars. It is of especial concern that this relationship be clearly understood as consideration is given at the federal level of government to reducing these funds. The sad fact is that environmental protection has not been able to compete for state funds and state regulators have been able to assume expanded responsibility only through the availability of federal funds. Perhaps that lack of success has been in part due to the available federal funds, and as they diminish the state will readily take up the slack. I do not believe that this will be the general case. Furthermore, the natural tendency of the [12 ELR 15094] states will be to fund the most visible programs, such as they are now doing in hazardous waste activities. Accordingly, federal program support funds, if available at all, should not be spent on the same politically visible areas, but should support fundamental program needs.

As reconsideration of the appropriate role for the federal government calls into question the rigour with which the federal government will both require certain directions in state programs and provide money for that design, thought must be given as to what this will mean for the eventual realization of the potential for state program effectiveness to protect the environment. Essentially this federal rigour and money have purchased a national program of environmental protection based upon an articulation of goals and strategy at the federal level with implementation taking place at the state level. It is important to define the essential role the federal government must continue to play, and evaluate whether greater state flexibility is appropriate and whether federal monies ought to be spent in a different way.

National Monitoring System

Even in a period of fewer federal dollars and greater flexibility for state programs it is reasonable and possible for the national government to provide political leadership and a national system of minimum standards. These will perhaps not be sufficient, however, to ensure effective action by the states when the carrot and stick are removed. If for no other reason, absence of the benefits accruing from federal dollars will mean that states will want to reassert political control over the direction and style of their regulatory programs. This will mean a gradual shift in state programs so that they are more responsive to local needs and concerns. This does not necessarily mean either the abandonment of public health protection or of a national program for achieving it. It does, however, mean that a mechanism other than federal imposition of rigid requirements for state programs and their oversight may need to be designed which is capable of determining that state programs are contributing to protection of the health of the public and the environment. An effective means of doing this would be a truly realistic national program for monitoring the actual condition of the nation's environment and the health of its citizens.

A national field environmental monitoring program could be designed in cooperation with each of the states which would be capable of addressing issues of particular concern to the whole nation as well as critically important local issues. The program would become the primary state activity upon which federal funds would be expended, with normal program support taken over by the states. Flexibility would be granted to the states to achieve standards in any way that was effective. The monitoring system would indicate whether progress was being made, acting as a measuring rod against which the public could evaluate its state's success. Such a monitoring program would be cheaper than the federal support now afforded the states and at the same time perhaps provide a useful replacement for the carrot and stick now available to the federal government. While states would need to assume direct program administration costs, federal assumption of a field monitoring program designed to establish the actual condition of the environment would provide a necessary, and often missing, piece of the total program effort. In addition, it would be a far more productive use of federal dollars than the current oversight of state administrative and bureaucratic actions because it would not only be a superior measuring stick but would also provide actual data necessary for appropriate regulation. Essentially, I am suggesting that the federal government pay for a comprehensive environmental quality monitoring system analogous to what the Council on Environmental Quality has attempted from time to time and utilize the results of that system as its primary tool in defining, and allowing the public to define, the success of state regulatory programs.

In addition, such a monitoring program needs to exist in order to evaluate realistically the actual utility of many control requirements thought necessary yet having great economic costs. Such a program would measure not only the quality of the air or water but also the health of the public.

For example, over time it might be the only realistic way of establishing controls over toxics in the environment. Much of what this paper suggests may be viewed as inappropriate when considered in light of the very difficult problem of regulating toxic substances in the environment. It may be, however, that the only realistic way of effectively regulating these substances is to compare their occurrence in the environment with the risk which is posed to the public or ecosystems and then establish a unique control program based on that relationship. This approach is a middle position between either waiting for adverse health effects to show up in the human population before control or controlling to a de minimis level each of the thousands of such substances. The approach would have to be implemented by the states, based upon a very sophisticated analysis of actual environmental conditions, and therefore would be a reasonable part of a nationally established monitoring system.

Conclusion

In conclusion, it is clear that there will be less of the traditional type of federal support for state programs. Perhaps after a decade of development, there is sufficient maturity in state regulatory efforts to allow a shift in federal philosophy from emphasis on the process of regulation to an examination of the outcome of the states' efforts. Such a program could better validate particular control strategies. And, while at first examination this might allow for totally ineffective state programs insofar as the national interest is concerned, a national monitoring program could mitigate against this result.

Discussion

GEORGE FREEMAN, JR.: Philosophically, we know what the Administration's point of view is, and it does not appear to differ greatly from the federal to the state level. The major problems deal with funding—whether the federal funds will be available and whether it will be possible to raise additional state revenues. The environment is going to have a hard time competing for state general funds because other areas such as human welfare demonstrate their needs much more clearly on a day-to-day basis.

For many of the Clean Water and Clean Air Act's requirements, the costs are excessive. They are not producing commensurate social benefits. There needs to be an ongoing evaluation of the state effort to see that national [12 ELR 15095] goals are being achieved, and cost/benefit methodology is essential to that process. Whether a state or EPA does the monitoring, we must ascertain that there is a link between the money spent and the long-range social benefits from these programs.

WILLIAM EICHBAUM: I do not want my remarks construed as suggesting that cost/benefit analyses should be applied to environmental decisionmaking. I do not believe you can put a dollar value on many environmental benefits. But the benefits of our environmental and public health protection programs have to be made more visible to the public, and that is why I suggest that some effort in that direction might be appropriate.

FREEMAN: I was not suggesting that we go to dollar quantification, but water quality effects resulting from technology-based standards should be studied. If the water will not be improved, the funds should not be spent.

GUS SPETH: I support Mr. Eichbaum's proposal for a national monitoring system, but I do not see that as a substitute for either the carrot or the stick. It really is only part of a stick. For example, if your monitoring information shows that a state is not progressing as the federal government feels it should, you still need the stick as an enforcement tool. In the foreseeable future, I do not see any alternative to substantial continuation of the types of federal support that we have had in the past. I would continue to argue that we will need a carrot and a stick.

If the federal government is serious about increased involvement of the states, then it should make additional funding available to permit that participation, and it should make the stick more evident. It should be made absolutely clear that any loss of commitment to the overall, national environmental objectives is not permissible. Only on the basis of that commitment will there be tolerance of and invitations to flexibility, innovation, and decentralization. In both of those respects we appear to be moving in exactly the wrong direction.

JOHN DANIEL: We do recognize the states' need for federal grant funds, and we have made that clear to state agency heads. We have discussed the need for certainty, planning, and long-term transition.

Notwithstanding the fact that the 20 percent reduction is already in the budget, this process is one of attempting to accommodate each other's needs. We are willing to try, and we want to do that. I cannot explain why it is that legislatures give less money to environmental programs now than they did a decade ago. The commitment appears to be greater now than it was a decade ago. Raising revenues at the state level is an area that ought to be explored more thoroughly.

Finally, I agree with George Freeman's assertion that human welfare needs are more easily demonstrated and thus are more likely to be funded than are environmental concerns.