The question is environmental protection—can the states cope? How will the states cope, and how well will they do that?

These are difficult questions to answer, but questions are frequently raised in our society because of anticipated change, and in this case questions are being raised because of a change in Administration, in relationships between different levels of government, and in costs and sources of funding government activities.

As long as the conceptual framework for environmental protection requires the states to develop and implement a plan for the enforcement of federal goals and standards, the states are going to have to be assured of some stability in those standards and enforcement programs. Otherwise, in the face of decreased federal financial support of environmental programs and the transfer of those costs and responsibilities to state governments at a time of diminished state financial resources, one could expect the states to give serious consideration to withdrawal from those programs. The consequences would be dramatic because the Environmental Protection Agency (EPA) would then be required to assume a permit-issuing and enforcement role which is beyond its present capabilities, and industry would be forced to seek dual permits for the same discharge source.

When we consider environmental protection and the role of states, we cannot ignore the political and financial realities of state legislative concerns. If the states choose to opt out of environmental programs, they are going to be facing sensitive political problems, of what to do with thousands of employees, offices, laboratories and support resources.

[12 ELR 15107]

The majority of people in this country recognize that the environment is not free, and its use is a cost that must be regulated and protected by government for the benefit of the public at large because no one else has the ability to protect it. Government regulation at any level, however, is a cost, and the more levels of regulation, the greater the cost. Although some argue that the cost of regulation lies strictly with the source of the problem, we have to recognize politically that those products are consumed by the general public. Because costs are likely to be passed on to the consumer, they must be kept as low as possible.

The exercise of regulatory authority also has an opportunity cost. If government attempts to remove all risk by regulating strictly, it will stifle new discoveries and inventions.

Environmental regulation and legislation are necessary, but that necessity carries with it questions of cost-effectiveness and potential good or harm for the community as a whole. Those laws must also be understandable, clear and certain in their approach, and uniform in their application and enforcement.

The federal government must provide national leadership in research and education because of the implications of a growing population and its demands on our limited resources. We cannot anticipate, let alone regulate, with present laws the kinds of problems which will emerge during the next twenty years, and we cannot tell with any degree of certainty the impact that many of these new problems will have outside the laboratory or conceptual thought. Thus we must continue to study and to plan how and when we will deal with those problems.

As EPA's John Daniel has stated in his presentation, part of that environmental protection program must be left at the federal level. Establishing minimum standards for public health and safety; ensuring certain levels of uniformity among the states; and taking the lead in areas of interstate and international controls, such as with acid rain or interstate pollution of water, are necessary to encourage cooperation and continued strict environmental protection. While there are interstate problems with air and water, it seems to me that we must not overlook the somewhat disturbing possibility, in fact a reality, of interstate pollution of the soil through shipping, storage, and disposal of hazardous or radioactive wastes. From the states' point of view, all of these areas are proper functions for some measure of federal involvement in the future.

Federal authority is also an appropriate location for a clearinghouse for technical and scientific information and a logical repository for research and development projects for environmental matters. There is no philosophical or fiscal reason to have fifty states duplicating each other's efforts and wasting money in the development of standard environmental control techniques.

In addition, the EPA and other agencies of the federal government must maintain a law enforcement role to guarantee that minimum standards are met and that they are met and enforced uniformly and in an equitable manner. It is a reality that we must accept that the political pendulum has swung away from excessive federal controls. But note the word "excessive." We must not let our desire for a more efficient system blind us toward the still very real need for effective environmental protection.

The framework for the new EPA may well preserve the essential features of a truly federal system while replacing federal rigidity that sometimes impeded efficiency and defied understanding. But the plan can provide for a continuity of pollution control efforts only so long as the states are ready and are in a position to pick up the burden that is now being shifted from Washington to the state capitals. I do not believe that any sudden shift is necessary. With national standards, industry benefits because each industry knows precisely what the American standards are. As long as there remains a backup federal enforcement procedure, however, state enforcement should retain uniformity, and states that protect their environment will not lose industry to "forum shopping" for more amenable regulations elsewhere.

I do not find the mood in this state for the sudden relaxing or abandoning of standards. What I do find is a desire for a more equitable, efficient, cohesive, comprehensive, realistic system of controlling and abating pollution of our environment.

Despite the arguments that technology-based standards provide more pollution protection than some areas need, some would agree that this is the correct decision. Effectiveness, ease of administration, uniformity, and the removal of any incentive to search out the cleanest areas in order to reduce them to the national pollution level all dictate that technology-based effluent limits be retained.

That question of cost leads into another area of concern. It may be argued by some that the cutback in federal funds for pollution abatement and control will be met by demands for increased state resources. The resentment that some taxpayers feel at the federal level will simply be transferred to state governments. It is then argued that because states may be tempted to enforce the law less vigorously, the EPA may find itself compelled to increase its enforcement efforts after the programs have been turned over to the state government, thus dividing up, not down, the costs of federal regulation. I hope that does not happen.

The problem we face, then, is not whether the states can cope, but how. The answer is simply that we can, and we will cope so long as there is a true partnership of understanding and cooperation between federal and state authorities. We need to adopt a long-range view of the states' environmental plans, but we must also insist that the federal view be equally long-range and not based on a four-year political cycle of events.

As we look in this state at some of the local and regional problems, the necessity for some long-range federal guidance quickly becomes apparent. For example, we in this state share some of the same problems found in other states for a need for adequate storage and disposal of hazardous wastes. And we need to determine whether it is in the best interest of the nation as a whole for each state to develop its own site, or whether regional sites or nationally operated sites are in order.

In Virginia, this problem grows daily in the area of radioactive wastes and spent nuclear fuel. At one end of the spectrum, the nuclear power program of construction and operation has always been a tightly federally controlled effort through the old Atomic Energy Commission and, more recently, the Nuclear Regulatory Commission, while at the same time that agency has neglected to address the other end of the nuclear spectrum, the disposal of the byproducts or waste materials.

So, while the states may ultimately be forced to deal with this problem if the federal government does not, in our view [12 ELR 15108] the question reflects a national problem and the answer should be determined at the national level. If the federal role does not provide that national consensus and policy that are essential, then states will grope in a vacuum, and the resulting fragmentation of resources will threaten the procedures and impetus of the years of environmental improvement.

In our zeal for a return to state responsibility in the environmental area, I think we should be certain that the new federalism does not extend so far that it becomes a new feudalism where local rules and regulations are so confused, contradictory, and arbitrary that we no longer have effective rule of law.

If we can substitute firmness for rigidity and provide a mechanism for regional or local inventiveness, then we have the option of real progress in both environmental protection and federal/state relations. The challenge and potential are clear. Equally clear must be our determination to meet then with foresight and concern.

Discussion

TURNER SMITH: I would be interested in your views on whether states ought to have vetoes over the location of high-level, hazardous waste disposal sites within their boundaries, and whether the local government ought to have the veto within a state or the state should have a veto over other states and the federal government. And, is a state veto consistent with national needs and national policy?

GERALD BALILES: It has been a traditional rule of law in Virginia that local governments have only that authority that has been delegated to them by the state legislature. I do not believe that local governments have the authority to make that kind of veto decision under the current laws of Virginia.

At the national level, I think we have to make the decision of whether we really want a national policy regarding the disposal of nuclear wastes. If we accept the premise that this is a function and responsibility of the federal government, the federal government is going to have to be given the authority to make that decision and to be unimpeded to the extent possible by legal challenge. You cannot do that if every state has a right to veto the decision of the siting agency. Yet the interests and concerns of the states cannot be ignored.

I am, obviously, a strong supporter of the right of the state to make certain decisions and the responsibility of the state to promote and protect the welfare of that state's citizens, but there are times when those decisions are functions of the federal government. The regulation of certain areas of nuclear operations is one of those, and the federal government should be able to make that decision in light of all the relevant facts, including state and local concerns, and yet be able to make that decision is light of the national interest, unimpeded by parochial or prior inside concerns.

PARTICIPANT: What are your views on declining federal grants and whether states will be able to pick up the funding when environmental programs must compete with the decline in welfare grants?

BALILES: When funds are scarce in the appropriation process, the programs that will suffer first and by the greatest amounts are the arts and humanities, corrections, certain educational programs, environmental agencies and two or three others.

The Virginia General Assembly approved a tax program this year to raise money for highway construction and maintenance. It was one of the most bitterly fought, hotly contested programs to go through the General Assembly in years. If a proposal had been made to increase financial resources for the environmental agencies to that extent, I believe the programs would have been abolished first. That is why I am concerned about the direction that many states may take in the future in dealing with the increased costs of environmental programs when the federal government shifts responsibilities to the states while simultaneously cutting federal funding of those very programs. Where do the states find the funds?

Many states, such as Virginia, have a requirement to balance the budget. In the face of approaching budget imbalances, the Governor has the authority to cut budget items and to reduce sizes of agencies and programs. When programs are reduced, the number of personnel is decreased, and without personnel, agencies are less able to take on once-federal programs. We have some major problems ahead of us.

PARTICIPANT: As a private practitioner before you were elected, you represented the City of Hopewell in an enforcement action which the U.S. EPA and the Commonwealth of Virginia brought against the city in federal court. In that case, you successfully persuaded Judge Warriner that the Commonwealth of Virginia had no business being there as a co-plaintiff. The Judge realigned the Commonwealth as a defendant on the grounds that Section 309(3) of the Clean Water Act required that result, and further, under Section 505, the Commonwealth could not appear as a citizen's group. The Fourth Circuit declined review. If that position or situation were presented to you again, would you prefer to have the Commonwealth appear as a defendant or as a plaintiff in federal enforcement actions against municipalities?

BALILES: The appropriate role for the state to take in that kind of a case is to take the violator to state court. There is no requirement that the state sue one of its political subdivisions in federal court. In the Hopewell case, the Commonwealth was in an awkward position of being a co-plaintiff against one of its political subdivisions for which it had ultimate financial responsibility if the defendant could not meet its financial obligations under the law.

If I find a permit holder violating the law and the conclusion of the agency is that enforcement action should be taken, there are state courts in the Commonwealth of Virginia where we can seek and obtain relief. I would hope that in most of those cases we would be able to effect a settlement, but where litigation is required, I would not hesitate to take that action.

SMITH: Do you see a role for the state-collected permit processing fees in funding environmental control programs?

BALILES: Yes, it is a politically useful approach, and as times get tight, I think it will also be a politically viable approach.