| To Relieve Unfunded Mandates and Enhance Local Autonomy: Enact a "Municipal Empowerment Act" |
| Peter Lehner |
| Peter Lehner is a Senior Attorney with the Natural Resources Defense Council. Previously he served as Deputy Chief and Director of Environmental Prosecution, New York City Law Department, Environmental Law Division. |
| [25 ELR 10205]
It is generally the responsibility of cities and other local governments — not states or the federal government — to provide residents with essential services such as sewage treatment, garbage disposal, drainage, and drinking water. Provision of these services generally dates back hundreds of years and is a function of municipalities' role in protecting public health and averting nuisances.1 Today, however, the federal government often regulates delivery of these services, setting uniform baseline standards to protect public health and the interstate environment and avoid excessive interstate competition to attract businesses by relaxing standards. |
| Federal standards can be costly, and local governments have objected to the imposition of "unfunded federal mandates." They have also objected to federal control and the resulting lack of local autonomy. Too often, however, these cries against unfunded mandates and for local control have become calls for reducing federal standards. Unfortunately, such reductions would likely relax protections against environmental pollution and reduce the quality of life for the very citizens that local governments are charged to protect. |
| This Dialogue suggests that municipalities should try a different response to the fiscal burdens that federal environmental quality standards may impose. Rather than claiming to be victims, and seeking handouts, municipalities should attempt to enhance their own abilities to provide for their citizens the better quality of life that federal statutes envision. The very federal laws that are so powerful in mandating local governmental action can also be powerful tools in helping municipalities achieve compliance with strict standards. Thus, part of the response to the fiscal squeeze affecting local governments should be legislation that increases their authority to enforce federal and state environmental laws within their jurisdictions. Enforcement authority brings with it substantial power, as well as responsibility. |
| Empowering municipalities would help them to take care of themselves, increasing local autonomy and allowing more individually crafted and efficient responses to environmental protection, while still achieving adequate baseline standards. Home-grown solutions to environmental problems are likely to be more sustainable and achieve better acceptance by the public and the regulated community. Additionally, increased local authority would help ease perceived funding problems created by federal mandates because enhanced enforcement capabilities would allow local governments to shift some environmental improvement costs to polluters and obtain reimbursement for cleanups, repairs, and other environmental actions. The result could improve environmental compliance without expanding federal or state bureaucracies. |
| This Dialogue suggests a federal legislative effort to increase and improve local governmental enforcement of existing environmental laws. This improvement would not decrease the enforcement capabilities of other governments or citizen groups; ratherit would encourage more widespread enforcement. In turn, this increased enforcement would level the business playing field, improve the environment, and more fairly share costs among polluters, shifting some costs away from local taxpayers. |
| Although many major environmental laws are up for reauthorization, it would be unwieldy to amend each federal environmental law separately to provide for increased municipal enforcement. Instead, Congress should enact a single "Municipal Empowerment Act" that would improve the tools for municipal enforcement in a wide range of environmental statutes. |
| Background |
| Currently, the most important environmental laws are federal. Most give plenary enforcement authority to the federal government or, through delegated programs, to the states. This authority brings with it numerous procedural powers and advantages designed to give these governments the benefits of various presumptions when enforcing environmental standards.2 Most statutes also have citizen-suit provisions [25 ELR 10206] that allow citizens, defined to include municipalities, to sue persons violating the statute, but only after giving notice of the violation to the federal and state governments and providing them at least 60 days in which to start enforcement.3 Several statutes also allow the federal and state governments to seek damages for injuries to natural resources, a strict liability tort-like remedy for environmental harms denied to local governments.4 |
| Despite the fact that protection of public health and welfare is a traditional responsibility of local governments, federal laws deny municipalities a status as enforcers comparable to that of the federal government and the states. Thus, when trying to enforce federal environmental statutes, local governments must generally rely on citizen-suit provisions or other statutory provisions designed primarily to provide relief to private parties.5 Even statutes that contain provisions recognizing the particular role of local governments in environmental protection exclude local governments from enforcement provisions.6 |
| Disadvantages of Precluding Local Enforcement |
| Forcing municipalities to rely on citizen-suit or private-party provisions has several disadvantages. First, the notice-and-waiting-period requirements of those provisions7 can reduce or eliminate the potential benefits of enforcement, especially in cases of serious toxic discharges or short-term events, such as water pollution caused by construction runoff or oil spills. In essentially all cases, forcing municipalities to comply with notice-and-waiting-period requirements delays abatement of environmental pollution. |
| Second, because citizen suits are considered "supplement[al]" to federal or state enforcement,8 states may view a local government-prosecuted citizen suit as an implied criticism of state enforcement. This may result in a lack of state legal, technical, and political support for the municipality's action. (In fact, targeted defendants often seek the protection of a state consent order from citizen action.)9 On the other hand, increasing municipal enforcement authority without including municipalities in state administrative enforcement schemes eliminates the chance that defendants could turn to municipal administrative consent orders to avoid a citizen suit.10 |
| Third, these private-party provisions deny municipalities the investigative powers and procedural advantages, such as the presumption that a toxic waste cleanup or a damage assessment was done properly,11 given to the other governments. In addition, certain powerful federal causes of action are simply denied to municipalities, such as the right to order a hazardous waste cleanup12 or to sue to recover damages for injury to natural resources.13 As a result, local governments must rely on common law or municipal ordinances which usually involve a higher burden of proof. |
| Finally, funds are rarely dedicated to municipal enforcement of federal law and municipalities lack the opportunity to develop an expertise in the area. Only if funds and effective remedies were available could municipal enforcement become a reality. |
| The situation is generally even worse under state environmental statutes. Most state environmental laws do not even provide citizen-suit provisions. As a result, municipalities often are powerless to enforce state laws regarding matters such as filling wetlands, dumping solid waste, or discharging air pollutants. Recent court decisions limiting citizen enforcement under the federal citizen-suit provisions of programs the federal government delegated to the states have exacerbated this problem.14 Although states could enact citizen-suit provisions or delegate enforcement powers to local governments, this is unlikely given current political realities. Moreover, at best these measures would only provide realties. Moreover, at best these measures would only provide claims under state laws and access to state courts, which Congress has rightly considered less appropriate for complex environmental claims that often have interstate implications. |
| [25 ELR 10207]
Proposed Legislation |
| Rather than attempting to correct these problems one by one, in individual statutes where concerns about local governmental authority could be swamped by other issues, it may be more successful to propose an entirely new statute to address municipal enforcement of several environmental statutes at once. Among other things, provisions of this single statute could include the following changes to existing law: |
| Municipalities would not need to give prior notice of their intent to sue under any federal citizen-suit provision, but instead would provide a copy of their complaints to the federal and state governments at the same time those complaints were served on defendants. |
| Municipalities could sue under the same provisions and obtain the same procedural benefits as the federal and state governments under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),15 Resource Conservation and Recovery Act (RCRA),16 and the Oil Pollution Act of 1990 (OPA).17 In addition, EPAwould promulgate guidelines for cases in which a municipal plaintiff is seeking both cleanup costs and the increased costs of completing public works projects in the face of contamination, and would reaffirm that both are recoverable.18 |
| Municipalities could recover response costs and obtain injunctive relief under CERCLA and RCRA to obtain the remediation of contaminated sites. |
| Municipalities could sue for penalties (consistent with the provisions that govern penalty claims by the federal government and the states), including penalties for past violations. If penalties were awarded, the penalties would be paid to the municipal enforcer and would be targeted to enhancement of environmental enforcement or other environmental improvements.19 |
| Municipalities could obtain attorneys fees before final judgment after interim decisions, such as findings of liability prior to determination of damages.20 |
| Municipalities would be designated as, and could sue as, trustees of natural resources within their jurisdicitions under CERCLA, the Federal Water Pollution Control Act (FWPCA),21 and the OPA, and obtain the same procedural advantages and powers as the federal and state trustees. |
| States to which EPA has delegated primary responsibility for implementing environmental protection programs would be required to provide for municipal enforcement (consistent with the provisions for municipal enforcement of federal law proposed above) as a condition of maintaining their delegated status.22 |
| Advantages of Increased Municipal Enforcement |
| There are many reasons to support municipal enforcement and several reasons not to fear it.23 First, being close to the problem, municipalities have a strong incentive to enforce against matters that are not now receiving federal or state attention. A matter that may not be a state priority, such as a comparatively small toxic waste site or a small water or air discharge, may nonetheless affect local residents.24 In addition, environmental laws tend to be less vigorously enforced in minority and low-income areas,25 which are often located in cities. Increased local enforcement would help alleviate this imbalance. |
| Second, increased local enforcement can significantly foster economic activity by improving communities, making amenities such as beaches more pleasant, and making formerly unusable sites available for development. Businesses choose to locate in areas where the quality of life will be high enough to attract and retain a good work force, and environmental quality is a significant component of overall quality of life. |
| Third, municipal enforcement can shift the cost for certain cleanups or other programs away from municipal taxpayers and onto others who can better or more appropriately bear those costs. For example, a defendant could be required to restore damage to a city-owned wetland or pay the additional costs a municipality incurs when contamination is encountered during a public works project, such as installing a sewer line. Upstream polluters could be forced to reduce their pollutant loads that harm downstream uses and reduce the public's enjoyment of the river. Aggressive enforcement may also forestall potential actions against municipalities.26 |
| Fourth, local governments could seek and obtain penalties and attorneys fees which could be used to fund their enforcement programs. Currently, when penalties are awarded under federal law, they generally must be directed to the federal treasury.27 In cases brought under state law, state [25 ELR 10208] agencies often use penalties to fund enforcement or other environmental programs. Local governments, however, are not provided any similar financial assistance, despite the fact that it is their citizens and their environment that often suffers the harm. Allowing municipalities to collect penalties would allow them to fund enforcement efforts and direct resources more to the areas harmed by the violation. Moreover, case law now limits citizens', and thus local governments', ability to obtain penalties for past violations.28 Removing this limitation would increase the potential deterrent value of these actions. |
| Small municipalities could benefit as well as large ones from increased enforcement authority. Even a small city, with no in-house counsel, could hire outside private lawyers. Interim awards of attorneys fees would make it more feasible for such a city to carry enforcement cases through to final judgment. |
| From a broader perspective, increased enforcement would reduce the constant demand for additional legislation by improving implementation of existing laws. There are many more municipalities than states,29 and enhancing their enforcement authority would increase governmental enforcement at little cost to the federal or state bureaucracies. Broader enforcement would ultimately lead to a more even application of the law and a more level and predictable playing field for all members of the regulated community. |
| Municipal enforcement is unlikely to be overly threatening or disruptive for several reasons. Financial and political checks would prevent frivolous lawsuits. The fact that municipalities are also members of the regulated community, and thus potential defendants, would tend to cause them to avoid cases that might establish what they consider to be dangerous precedent. Concern for the local economy would tend to make them more open to innovative settlements that achieve environmental goals with a minimum of economic dislocation.30 |
| Although states may view municipal enforcement as potentially confusing or ineffective, states have mechanisms to coordinate with, and if necessary control, their political subdivisions. Clear statutory acknowledgement that the Municipal Empowerment Act is intended to help alleviate problems of constant underfunding of state environmental programs may help dispel any potential inferred criticisms of state programs. Indeed, an important benefit of this proposal is that it could increase overall government enforcement at little cost to federal or state bureaucracies.31 |
| Conclusion |
| Bolstering municipal enforcement has many advantages, few disadvantages, and could be done in one relatively straightforward statute. Empowering local governments, rather than perpetuating a victim mentality, would help provide long-lasting solutions to the real fiscal difficulties faced by those governments. Increased enforcement is also one of the fairest ways to improve environmental quality because it eliminates the unfair competitive edge held by violators over companies complying with the law or taking voluntary cleanup measures. Enhanced municipal enforcement authority would help local governments provide the services on which we all depend and which preserve our quality of life. |
| 1. See, e.g., Philip Warburg & James McElfish Jr., Property Rights and Responsibilities: Nuisance, Land-Use Regulation, and Sustainable Use, 24 ELR 10520, 10522 (Sept. 1994). |
| 2. For example, courts generally defer to the technical expertise and reasonable statutory interpretations of agencies charged by the legislature with administering and enforcing regulatory legislation. See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43, 14 ELR 20507, 20508-09 (1984). Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), state and federal governmental cleanup action is presumed to be consistent with federal regulations until defendants prove otherwise. Other parties, however, must prove that their actions were "necessary" and "consistent" with those regulations. New York v. Shore Realty Corp., 648 F. Supp. 255, 263 n.5, 17 ELR 20588, 20591 (E.D.N.Y. 1986); see also City of New York v. Chemical Waste Disposal Corp., 836 F. Supp. 968, 24 ELR 20627 (E.D.N.Y. 1993). |
| 3. See, e.g., 33 U.S.C. § 1365, ELR STAT. FWPCA § 505, 15 U.S.C. § 2619, ELR STAT. TSCA § 20; 33 U.S.C. § 1415(g) (authorizing, respectively, citizen suits to enforce Federal Water Pollution Control Act (FWPCA), Toxic Substances Control Act, and Marine Protection, Research, and Sanctuaries Act provisions). A few citizen-suit provisions waive the mandatory waiting period under certain circumstances. See, e.g., 42 U.S.C. § 6972(b)(1)(A), ELR STAT. RCRA § 7002(b)(1)(A). |
| 4. See, e.g., 42 U.S.C. § 9607(a)(1)-(4)(C), ELR STAT. CERCLA § 107(a)(1)-(4)(C); 33 U.S.C. § 2706, ELR STAT. OPA § 1006; 33 U.S.C. § 1321(f)(5), ELR STAT. FWPCA § 311(f)(5). |
| 5. For a discussion of municipal enforcement under current law, see Peter H. Lehner, Cities as Environmental Plaintiffs: A Guide to Municipal Enforcement of Environmental Laws, 24 Env't Rep. (BNA) 2080 (Apr. 8, 1994). |
| 6. For example the Oil Pollution Act of 1990 emphasizes local level planning with local governments through area committees and area contingency plans. 33 U.S.C. § 1321(j), ELR STAT. FWPCA § 311(j) (as amended by the Oil Pollution Act of 1990, Pub. L. No. 101-380, § 4202, 104 Stat. 527). Nonetheless, cities cannot sue as governments to require an oil spill cleanup or recover for natural resources injuries. See id. § 2702, ELR STAT. OPA § 1002. The same dichotomy between treating local governments as governments for some purposes but not for purposes of enforcement exists in CERCLA, the FWPCA, and many other environmental statutes. |
| 7. See supra note 3 and accompanying text. |
| 8. See, e.g., Gwaltney of Smithfield Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 60, 18 ELR 20142, 20145 (1987). |
| 9. See, e.g., Proffitt v. Lower Bucks County Joint Mun. Auth., No. 86-7220, 1987 WL 28350 (E.D. Pa. Dec. 16, 1987), rev'd on other grounds 877 F.2d 57 (3d Cir. 1989) (ruling on a case in which 58 days after receiving the plaintiff's 60-day notice of intent to file a citizen suit, a state attempted to modify the requirements of a defendant's permit in a consent order, without providing an opportunity for public comment). |
| 10. In addition, because proposed settlements of citizen suits often must be provided to the U.S. Department of Justice, there should be little danger of "sweetheart deals" with cities. See 42 U.S.C. § 7604(c)(3), ELR STAT. CAA § 304(c)(3); 33 U.S.C. § 1365(c)(3), ELR STAT. FWPCA § 505(c)(3). |
| 11. See supra note 2; see also 42 U.S.C. § 9607(f)(2)(C), ELR STAT. CERCLA § 107(f)(2)(C). |
| 12. 42 U.S.C. § 9606, ELR STAT. CERCLA § 106. |
| 13. See supra note 4 and accompanying text. |
| 14. See, e.g., Atlantic States Legal Found. v. Eastman Kodak Co., 12 F.3d 353, 24 ELR 20234 (2d Cir. 1993), cert. denied, 115 S. Ct. 62 (1994). |
| 15. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405. |
| 16. Id. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012. |
| 17. 33 U.S.C. §§ 2701-2761, ELR STAT. OPA §§ 1001-7001. |
| 18. See, e.g., City of New York v. Chemical Waste Disposal Corp., 836 F. Supp. 968, 24 ELR 20627 (E.D.N.Y. 1993) (action to recover incremental costs to repair a sewer line due to groundwater pollution). |
| 19. Currently penalties must be paid to the federal treasury, although settlement funds may be directed to environmental projects. See Sierra Club v. Electronic Controls Design, Inc., 909 F.2d 1350, 1354, 20 ELR 21081, 21083 (1990). |
| 20. Attorneys fees are already generally available under citizen-suit provisions. See, e.g., 33 U.S.C. § 1365(d), ELR STAT. FWPCA § 505(d). |
| 21. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607. |
| 22. See, e.g., 33 U.S.C. § 1342(b), ELR STAT. FWPCA § 402(b); 42 U.S.C. § 300g-2, ELR STAT. SDWA § 1413 (providing for delegation to states). |
| 23. For a more detailed discussion of the advantages of municipal enforcement, see Peter Lehner, Act Locally: Municipal Enforcement of Environmental Law, 12 STAN. ENVTL. L.J. 50 (1993); Lehner, supra note 5. |
| 24. See Sierra Club v. Chemical Handling Corp., 824 F. Supp. 195, 198, 23 ELR 20814, 20815 (D. Colo. 1993) (noting that a RCRA violation "is only 'small' to one who does not live near the offending hazardous waste facility" and that "those who live in close proximity to hazardous waste facilities often are the most diligent enforcers of RCRA's mandates"). |
| 25. See, e.g., DR. BENJAMIN A. GOLDMAN & LAURA FITTON, TOXIC WASTES AND RACE REVISITED (Center for Policy Alternatives 1994). |
| 26. For example by enforcing the FWPCA pretreatment requirements, 33 U.S.C. § 1317, ELR STAT. FWPCA § 307, the municipal owner of a publicly owned treatment works might avoid violating its own National Pollutant Discharge Elimination System permit. |
| 27. See supra note 19. |
| 28. See, e.g., Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 18 ELR 20142 (1987). |
| 29. There are approximately 82,000 local governments, of which approximately 19,000 are municipal corporations. Richard Briffault, Our Localism: Part II — Localism and Legal Theory, 90 COLUM L. REV. 346, 347 n.9, 348 n.15 (1990). |
| 30. A poll conducted by the U.S. Advisory Commission on Intergovernmental Relations found a widespread concern for the inflexibility of federal programs that can "negate the resourcefulness of local leadership." ACIR: THE YEAR IN REVIEW 35TH ANNUAL REPORT 2 (Jan. 1994). The same poll rated local governments best in all three functions of government — legislative, executive, and judicial. Id. at 18. |
| 31. It might be argued that the Municipal Empowerment Act, proposed above, would be futile. Most municipalities arguably would consider stringent enforcement programs to be a threat to their economac well-being. See, e.g., Arnold W. Reitz Jr., A Century of Air Pollution Control Law: What's Worked; What' s Failed; What Might Work, 21 ENVTL. L. 1549, 1570 (1991) ("Rarely do local governments use their legal powers to protect the environment."). But at times local governments have indisputably served as effective enforcers. See, e.g., Denver v. Adolph Coors Co., 829 F. Supp. 340, 24 ELR 20112 (D. Colo. 1993); City of New York v. Exxon Corp., 697 F. Supp. 677, 19 ELR 20332 (S.D.N.Y. 1988). Continuing to deny local governments the enhanced enforcement tools discussed in this Dialogue would do little to encourage them to adopt the kinds of even-handed enforcement programs that could increase compliance without alienating responsible members of the regulated community. |
25 ELR 10205 | Environmental Law Reporter | copyright © 1995 | All rights reserved
