Minimal Stringency: Abdication of State Innovation

James M. McElfish Jr.

Editors' Summary: As environmental regulation at the federal level has grown increasingly burdensome on states and industry, nearly half of the states, mainly in the South and intermountain West, have responded by preventing their own environmental agencies from promulgating environmental regulations that are more stringent than federal baselines. The author examines many of these restrictions on state regulation, and discusses their causes and potential effects. The author concludes that these states' abdication of their freedom to legislate and regulate innovatively is a strong indicator that in the absense of strong federal regulation, many states would not be likely to regulate the environment to the degree the federal government currently does.

Mr. McElfish is a Senior Attorney at the Environmental Law Institute. The author would like to thank Adam Schwartz, a student at Howard University Law School, and Ashley M. Bale, J.D. 1994, University of San Francisco School of Law, for research supporting this Article.

[25 ELR 10003]

Many states have turned the floors that federal environmental mandates establish into ceilings. Although the federal environmental laws are intended to provide a base level of public protection, allowing states to regulate more stringently when appropriate,¹ no fewer than 24 states have enacted laws preventing their regulations from rising above the federal floor with respect to one or more environmental programs.

The usual justification offered for these laws is the desire to attract and retain business. A recent initiative by Governor George Allen of Virginia, for example, directed all state agencies and a citizen task force to identify rules that are not required by federal law so that Virginia can improve its competitive position.² Some states have legislatively mandated this type of regulatory review.³ In adopting this strategy, states have, at least in part, continued the "race to the bottom" that Congress decried in its enactment of many federal statutes.⁴ But the bottom is now federally defined.

The states that have enacted laws limiting their agencies to the federal baselines are primarily located, with a few exceptions, in the South and the intermountain West.⁵ For the most part, these states have never been highly hospitable to government regulation. Few attempted much regulatory experimentation even before the advent of the federal environmental laws.

Justice Louis Brandeis once wrote that the states are "laboratories" of federalism, where legislative innovation may be tried for the potential benefit of the entire nation.⁶ If states are indeed laboratories for the nation, then the states that limit their regulation to federal minimums are the "controls" for the experiments of the others.

Environmental experimentation above the federal baseline appears to be concentrated in the states of the Northeast and the West Coast — the most densely populated portions of the country. These have been the states whose legislative [25 ELR 10004] innovation has prompted the enactment of significant federal environmental laws.⁷

[SEE ILLUSTRATION IN ORIGINAL]

Stringency Prohibitions

The most sweeping limitation on state stringency is that of South Dakota, which has enacted the following prohibition: "No rule that has been promulgated pursuant to Title 34A [Environmental Protection], 45 [Mining, Oil, and Gas], 46 [Water Rights], or 46A [Water Management] may be more stringent than any corresponding federal law, rule or regulation governing an essentially similar subject or issue."⁸

Although some of the prohibitions on state regulatory stringency cut across several environmental mandates, most are focused on particular environmental laws. Individual state prohibitions address the entire spectrum of federal environmental law, from coal mine reclamation, to water pollution, to underground injection, to solid and hazardous waste, to emergency preparedness and response, to air pollution.

One of the most frequent targets of state "no more stringent than" laws is the federal Surface Mining Control and Reclamation Act (SMCRA).⁹ SMCRA was bitterly resisted by a number of states that claimed the Act intruded into traditional land use regulatory functions reserved to the states.¹⁰ Ironically, when challenges to the law failed, a common reaction among these states was to surrender their legislative autonomy. Six states enacted laws prohibiting their own regulation of coal mining from being more stringent than the federal baseline.¹¹

Many states also limit the stringency of their water pollution regulation. In addition to the 11 states that have not obtained authority to operate the national pollutant discharge elimination system permit program under the Federal Water Pollution Control Act (FWPCA)¹² — thus ensuring [25 ELR 10005] that the federal minimum is the state program — several have enacted stringency limitations. Florida and Virginia provide that state water pollution rules may not be more stringent than federal regulations under the FWPCA.¹³ Iowa prohibits the adoption of state effluent standards that are more stringent than federal standards.¹⁴

A number of states also have stringency limitations related to waste disposal. Idaho prohibits its agencies from regulating shallow injection wells more stringently than minimum federal requirements.¹⁵ New Mexico and West Virginia prohibit adoption of state hazardous waste rules that are more stringent than the Resource Conservation and Recovery Act (RCRA) rules.¹⁶ Colorado prohibits the adoption of state rules concerning mining and mineral processing wastes that are more stringent or inclusive than the U.S. Environmental Protection Agency's (EPA's) rules.¹⁷

Oklahoma provides that state emergency response and notification rules "shall not be more stringent than any such federal act."¹⁸ Utah has a similar provision.¹⁹ Eight states prohibit underground storage tank rules that are more stringent than EPA regulations.²⁰

Kentucky, New Mexico, and North Carolina prohibit state clean air rules from exceeding the minimum federal requirements.²¹ Oklahoma law provides that state regulations pertaining to hazardous air pollutants and accidental releases must be "not more stringent than federal requirements."²²

Some bars are limited to portions of programs. Montana prohibits the adoption of state hazardous waste rules that are more stringent than the federal rules under RCRA, but then specifically denotes a number of areas where the state may regulate more stringently.²³ Arizona prohibits state emergency response rules from being more stringent than the federal Emergency Planning and Community Right-to-Know Act (EPCRA) and its implementing regulations "except as specifically authorized in this article."²⁴ Some state prohibitions on greater stringency are targeted exceedingly closely. Louisiana provides, for example, that state rules for storage of ammonia fertilizer on farms for application to crops shall not be more stringent than federal requirements under EPCRA.²⁵

Qualified Prohibitions

Several states have enacted qualified, rather than absolute, limitations on state stringency. Provisions in these states bar regulators from exceeding federal minimums unless they can supply strong — often state-specific — reasons to do so. State regulators commonly must follow more detailed procedures for adoption of regulations that are more stringent than federal rules than for adopting those that simply mirror the federal requirements.

For example, Colorado law provides that the state's water quality control commission may adopt rules more stringent than corresponding federal requirements

only if it is demonstrated at a public hearing, and the commission finds, based on sound scientific or technical evidence in the record, that state rules more stringent than the corresponding federal requirements are necessary to protect the public health, beneficial use of water, or the environment of the state.²⁶

Colorado allows its nine-member hazardous waste commission to adopt hazardous waste regulations that are more stringent than EPA regulations (except for mining and mineral processing wastes, for which the prohibition is absolute), but requires that such regulations be adopted not simply by a majority vote of a quorum, but by an affirmative vote of five members of the commission.²⁷ Other hazardous waste commission decisions are even more rigorously controlled. Colorado requires that at least six of the nine commission members affirmatively approve any decision to list as hazardous waste a material that EPA has not listed. Moreover, such decisions must be made only after a public hearing and a written finding "based upon substantial evidence in the record that such rules are necessary to protect the public health and the environment of the state" and must include a commission opinion "referring to and evaluating the public health and environmental information and studies" forming the basis for the decision.²⁸

Colorado's language regarding findings and studies was borrowed, in part, from sweeping 1987 Utah legislation (HB 57).²⁹ HB 57 bars Utah state regulators from adopting regulations more stringent than federal regulations in a wide array of environmental programs unless the relevant regulatory agency [25 ELR 10006] makes a written finding after public comment and hearing and based on evidence in the record, that corresponding federal regulations are not adequate to protect public health and the environment of the state. Those findings [sic] shall be accompanied by an opinion referring to and evaluating the public health and environmental information and studies contained in the record which formed the basis [for the finding.]³⁰

The law contains identical provisions limiting the regulation of air pollution,³¹ water pollution,³² radiation,³³ drinking water,³⁴ and solid and hazardous wastes.³⁵

In state surface coal mining legislation, in addition to the six states with absolute prohibitions on greater stringency, two states have enacted qualified prohibitions. Missouri allows more stringent regulation of coal mining reclamation only if its mining agency can "affirmatively show" that a more stringent rule is "essential to the proper administration and enforcement of this law."³⁶ Colorado requires a "specific finding" that "protection of public safety or the environment requires a more stringent regulation."³⁷

Several laws link the decision to adopt more stringent regulations to findings of state-specific differences. West Virginia, for example, prohibits state clean air rules from being

any more stringent than any federal rule or program except to the limited extent that the director first makes a specific written finding for any such departure that there exists scientifically supportable evidence for such rule or program reflecting factors unique to West Virginia or some area thereof.³⁸

Wyoming law provides that state solid and hazardous waste rules may be more stringent than federal rules if "adequate cause exists to determine that circumstances specific to the state compel adoption of more stringent rules."³⁹

Some state laws address the issue of stringency by requiring studies of rules or proposed rules that may be more stringent than federal rules. Florida took this approach in legislation enacted in 1975, directing its Department of Environmental Regulation to conduct a study of the "economic and environmental impact" of any proposed standard, including the benefits and costs to the public.⁴⁰ In 1987, Utah's HB 57 not only limited the adoption of new regulations more stringent than federal requirements, but also required state agencies to review existing regulations.⁴¹ The agencies were to report by April 1988, which regulations should be modified or eliminated because they were more stringent than federal requirements and not justified under HB 57's higher standard.⁴² Utah subsequently modified several dozen regulations, mostly in the hazardous waste area, to conform to the federal rules. The state decided to retain its more stringent regulations relating to nerve agents because of public concern with the handling of nerve gas at the Tooele Army Depot.⁴³

State Laws That Reinforce Federal Preemption

A few "no more stringent than" laws merely reinforce federal preemption of state regulation. Among these are state laws prohibiting automobile emissions standards more stringent than federal requirements.⁴⁴ Several states also prohibit more stringent state regulation of nuclear materials⁴⁵ and the transportation of hazardous materials,⁴⁶ fields in which the federal government legislates preemptively or allows little leeway for state experimentation.

Observations

"No more stringent than" laws may be an inevitable result of a federal system. The existence of a federal baseline implies that there will always be some states at the baseline. Indeed, in the absence of a federal baseline, some states would regulate even less.

While some of the impetus for these state laws may have come from concerns that state regulators lack sufficient technical expertise to make decisions in areas that are highly technical and complex, a more important factor is the states' desire not to impose costs on businesses. Particularly where states feel that federal regulation already goes too far, the legislative response has been to restrain state regulators from going farther still.

The existence of "no more stringent than" laws relates in part to the recent discussion of "unfunded mandates." Some states have used the latter phrase to characterize their complaints that the federal government should not impose any regulatory duty on the states for which it does not also provide full funding.⁴⁷ Judging from the popularity of "no more stringent than" laws, it is apparent that in the absence [25 ELR 10007] of federal mandates — funded or unfunded — there would be less environmental regulation. Policymakers would do well to consider state responses if federal floors are lowered or removed. A significant number of states would drop quickly to the new floors.

Colorado, South Dakota, and Utah lead the nation in the breadth of their limitations on state regulatory stringency. Other states have more focused limitations. Yet more than half of the states have no such limitations, and no state in the Northeast or the West Coast has such a limitation in any of its environmental programs. To date, states with the bulk of the nation's population have chosen to preserve their ability to regulate beyond federal environmental mandates.⁴⁸

1. E.g., Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901-6992k, 6929, 6991g, ELR STAT. RCRA §§ 1001-11012, 3009, 9008; Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. §§ 1201-1328, 1255(b), ELR STAT. SMCRA §§ 101-908, 505(b); Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q, 7416, ELR STAT. CAA §§ 101-618, 116; Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1251-1387, 1370, ELR STAT. FWPCA §§ 101-607, 510; Safe Drinking Water Act, 42 U.S.C. §§ 300f to 300j-26, 300g-3(e), 300h-2(d), ELR STAT. SDWA §§ 1401-1465, 1414(e), 1423(d).

2. BLUE RIBBON STRIKE FORCE: GOVERNOR'S COMMISSION ON GOVERNMENT REFORM, DRAFT RECOMMENDATIONS (1994); see also Virginia Executive Order No. 13 (June 21, 1994) (on file with author); Virginia Executive Order No. 15 (June 21, 1994) (on file with author).

3. See, e.g., infra notes 40, 41 and accompanying text.

4. See, e.g., S. REP. NO. 414, 92d Cong., 1st Sess. 1-10 (1972) (FWPCA amendments needed to prevent states from competing for business as pollution havens); see also 30 U.S.C. § 1201(g), ELR STAT. SMCRA § 101(g) ("[s]urface mining and reclamation standards are essential to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders.").

5. The exceptions tend to involve legislation affecting extractive industries, such as the limitations on coal mine regulation enacted in Illinois and Indiana. See infra note 11.

6. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

7. For example, Pennsylvania's coal mining law, the Surface Mining Conservation and Reclamation Act, PA. STAT. ANN. tit. 52, §§ 1396.1-1396.19a (1966 & Supp. 1994), provided the model for SMCRA, 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA §§ 101-908; New Jersey's Spill Compensation and Control Act, N.J. STAT. ANN. §§ 58:10-23.11a to .11z (West 1993), provided the model for the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405; and California's and Oregon's air pollution statutes provided a basis for the 1970 federal CAA, 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618. See THE LAW OF ENVIRONMENTAL PROTECTION 2-6 through 2-17 (Sheldon M. Novick et al. eds., 1994). See also John Pendergrass, A Rich History of Innovation, ENVTL. F., Nov./Dec. 1994, at 12 (discussing state innovations).

8. S.D. CODIFIED LAWS ANN. § 1-40-4.1 (1992); see also S.D. CODIFIED LAWS ANN. § 34A-11-1.1 (1992) (state hazardous waste rules may not be more stringent than EPA rules, but state may regulate polychlorinated biphenyls).

9. 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA §§ 101-908.

10. Indeed, several states launched or supported judicial challenges to the law on Tenth Amendment and Commerce Clause grounds. These challenges were rejected by a unanimous Supreme Court. Hodel v. Indiana, 452 U.S. 314, 11 ELR 20581 (1981); Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 11 ELR 20569 (1981); Star Coal Co. v. Andrus, 10 ELR 20328 (S.D. Iowa Feb. 13, 1980).

11. ALA. CODE § 9-16-74(1) (1987); ARK. CODE ANN. § 15-58-202(a)(1) (Michie 1994); ILL. REV. STAT. ch. 225, para. 715/17(d), ch. 225, para. 720/1.02(c) (West 1993 & Supp. 1994); IND. CODE § 13-4.1-1-5 (West Supp. 1994); KY REV. STAT. ANN. §§ 350.028(5), 350.069, 350.465(2) (Banks-Baldwin 1991 & Supp. 1993); UTAH CODE ANN. § 40-10-6.5(1) (Supp. 1994). The federal Office of Surface Mining Reclamation and Enforcement disapproved the Indiana provision because it actually made the state's law less effective than the federal program. 56 Fed. Reg. 64996-97 (Dec. 13, 1991). Although Virginia was one of the states that led the fight against SMCRA, its legislators contented themselves with legislative findings regretting SMCRA's enactment. See VA. CODE ANN. § 45.1-227 (Michie 1994). Virginia coal operators have argued that these findings should be construed as a "no more stringent than" requirement, but the Commonwealth has not agreed.

12. 33 U.S.C. §§ 1251-1387, 1342, ELR STAT. FWPCA §§ 101-607, 402.

13. FLA. STAT. ANN. § 403.061(7) (West 1993); VA. CODE ANN. § 62.1-44.15:1 (Michie 1992). Florida is one of the states that does not have authority for an NPDES program.

14. IOWA CODE § 455B.173(2) (1990).

15. IDAHO CODE § 42-3915 (1990).

16. N.M. STAT. ANN. § 74-4-4(A) (Michie 1993); W. VA. CODE § 22-18-6(a) (1994). South Dakota also expressly prohibits greater stringency in this area, adding emphasis to its general prohibition on greater stringency in environmental matters. See supra note 8. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

17. COLO. REV. STAT. § 25-15-302(4)(b) (Supp. 1994).

18. OKLA. STAT. ANN. tit. 27A, § 4-2-102(F)(2) (West Supp. 1995). The "federal act" referred to is the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

19. Utah prohibits its waste board "to the extent the board may have jurisdiction" from promulgating state rules more stringent than federal rules under EPCRA or CERCLA. UTAH CODEANN. § 19-6-106(1) (1991).

20. ALA. CODE § 22-35-10 (Supp. 1994); ALASKA STAT. § 46.03.365(c) (1991); ARIZ. REV. STAT. ANN. §§ 49-1003(C), 49-1006(B), 49-1009(C) (Supp. 1993); ARK. CODE ANN. § 8-7-803 (Michie 1993); IOWA CODE § 455B.474(7) (1990); NEV. REV. STAT. ANN. § 459.824(1) (Michie 1991); N.D. CENT. CODE § 23-20.3-04.1 (1991); WYO. STAT. § 35-11-1416 (1994). Oklahoma bars underground storage tank financial responsibility rules from being more stringent than EPA requirements. OKLA. STAT. tit. 17, § 308(H) (Supp. 1995).

21. KY. REV. STAT. ANN. § 224.10-100(26) (Banks-Baldwin 1992); N.M. STAT. ANN. § 74-2-5(C)(1)(a) (Michie 1993); N.C. GEN. STAT. § 143-215.107(f)(1) (1993).

22. OKLA. STAT. ANN. tit. 27A, § 2-5-114(A)(1) (West Supp. 1995).

23. MONT. CODE ANN. § 75-10-405(2) (1993).

24. ARIZ. REV. STAT. ANN. § 26-343(I) (1991). 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

25. LA. REV. STAT. ANN. § 30:2060(N)(8) (West Supp. 1994) ("than existing requirements under the federal Superfund Amendments and Reauthorization Act of 1986 and subsequent amendments").

26. COLO. REV. STAT. § 25-8-202(8)(a) (1990).

27. Id. § 25-15-302(4)(a).

28. Id. § 25-25-302(4)(c).

29. 1987 Utah Laws, ch. 12.

30. UTAH CODE ANN. § 19-2-106(2) (1991) (air pollution rules).

31. Id.

32. Id. § 19-5-105.

33. Id. § 19-3-104(5)(a).

34. Id. §§ 19-4-105, 19-5-105.

35. Id. § 19-6-106.

36. MO. REV. STAT. § 444.800(4) (Supp. 1994).

37. COLO. REV. STAT. § 34-33-108(1) (Supp. 1994).

38. W. VA. CODE § 22-5-4(a)(4) (1994).

39. WYO. STAT. § 35-11-503(a)(v)(A) (1994). Ohio law mentions stringency, but applies a deferential standard toward more stringent regulation of solid and hazardous waste. State waste rules may be more stringent than federal rules whenever the director of the Ohio Environmental Protection Agency "determines that such more stringent rules are reasonable in order to protect human health or the environment." OHIO REV. CODE ANN. § 3734.12(I)(1)(a) (Anderson Supp. 1993).

40. FLA. STAT. ANN. § 403.804(2) (West 1993). The same section also required a review of existing rules that set a more stringent standard than that set by federal agencies.

41. 1987 Utah Laws, ch. 12, § 10.

42. Id.

43. See James A. Holtkamp, The Utah "No More Stringent" Statute: A Case Study in Maximum Use of Limited Resources, 11 ENVTL. PROF. 51, 54 (1989).

44. See 42 U.S.C. § 7543(a) (expressly preempts state emission standards for new motor vehicles); FLA. STAT. ANN. § 325.206(1) (West Supp. 1994); GA CODE ANN. § 12-9-46(a)(1) (1992); R.I. GEN. LAWS § 23-23-5(12) (Supp. 1994); WIS. STAT. § 144.42(2) (Supp. 1994).

45. UTAH CODE ANN. § 19-3-104(6)(a) (Supp. 1994); WYO. STAT. § 9-6-210(c) (Supp. 1994).

46. ILL. REV. STAT. ch. 430, para. 50/3(d) (1993); N.M. STAT. ANN. § 65-3-13 (Michie 1990).

47. Of course most of these programs are only "imposed" or "mandates" in the sense that a state has the option to promulgate its own program in lieu of a direct federal program. The fact that most states prefer to take advantage of this option in order to avoid a direct federal regulatory presence does not change the fact that it is an option. See THE LAW OF ENVIRONMENTAL PROTECTION, supra note 7, § 6.02.

48. Two-thirds of the nation's population lives in states with no prohibitions on state environmental regulations exceeding federal minimums. STATISTICAL ABSTRACT OF THE UNITED STATES 27 (1994).