First of all, it was a relief to read a letter from the Western Governors Association (WGA) because I value the organization’s purpose and see it having a brilliant impact on environmental policy. Crucially, it is bipartisan which is useful for advancing environmental regulation in government and unify the American people under a common group of humans on planet earth. Further, one of its main purposes is for information-sharing. Considering I see respect for science as a key propellent of the environmental movement, a team such as this one would support the adoption of healthy, logical environmental policy. Once again, the third tenant of the organization emphasizes collective action, which particularly in Congress, is important. My viewpoint is strengthening the relationship between federal and state policy-making is the route America needs to take.
The government was originally designed based on a system of checks and balances to reap the benefits of putting power in the hands of each sector. In the letter from the WGA, checks and balances is being used to hold the Environmental Protection Agency (EPA) accountable for having guidance documents be evaluated with proper review, as well as subject to basic public notice and comment processes. Here, I see the collaboration between government groups leading to a giving the American people a stronger voice. The issuance of guidance documents are also subject to state consultation. While it is simple and easy to declare everyone needs to be working together, it can be difficult to move processes along in terms of a bill becoming a law when there is thorough policy refinement from multiple types of groups. However, it may lead to a comparatively successful implementation and long-lasting impact of the intended environmental support the laws provide due to agreed consensus between all involved.
A group of Congress members emphasizing states are not stakeholders, as they have reserved powers under the constitution, aligns with the nation’s needs. After seeing the negative impact of bipartisanship on citizen power, I can only imagine the detrimental effect of increasing divide within governmental bodies. The governors serve as liaisons linking the EPA to every state’s perspective. The valuable consultation the EPA can gain from such a wide variety of outlooks is significantly useful. From understanding environmentally effective forest management policy in North Carolina to adopting renewable energy business innovation in California, the EPA has a lot to benefit from by being open to consultation and sharing a greater portion of its power. According to The Atlantic, “EPA employees consult the most recent science about conventional air or water pollution, formulate rules to protect the public from those dangers, and turn them into law” (Meyer 2017). So, why not incorporate detailed state consultation into phase two? Not to mention, being able to combine federal and state budget to realize agreed-upon visions can bring massive strides to the environmental movement. Moreover, considering the scope of enforcement is wide across the country, the EPA needs assistance from the states who are increasingly willing to devote resources to regulations to which they agree.
Progress cannot be attained insofar as America is constantly establishing laws and retracting them in the following term. Particularly in regard to the power given to the president to declare executive order, a system of checks and balances is also useful in assuring regulation does not drastically change between administrations. However, according to The Atlantic, the Trump administration has rescinded years of both Nixon and recently Obama’s regulatory work. Moreover, the Clean Air Act and Clean Water Act (CWA) were enacted during the Nixon presidency in the 1970s (Meyer 2017). However, there is a disconnect between its enactment and complete implementation considering the National Resources Defense Council’s website goes into detail about how lakes, ponds, rivers, streams and wetlands are still heavily covered with contamination (National Resources Defense Council 2017). It is widely debated whether the money put into the CWA is worth the benefit from merely a mathematical standpoint (Keiser and Shapiro 2018). Since the states are clearly needed to support CWA enforcement, they should have a significant role in policy-making, as well. The process of a bill becoming a law does not take long primarily due to state involvement. Rather, industry groups attempt to prove a weakness in the ethics of how the bill became a law (Meyer 2017). Insofar as the EPA made laws according to how the constitution originally designed the process, there would be no question of expertise, care and thoughtfulness questioned in the courts. Therefore, unity in government would prohibit backlash from industry and in turn strengthen the environmental movement.
Kaiser, David and Shapiro, Joseph. October 2018. “How the Clean Water Act has Served the Environment and Economy.” Accessed June 2 2020. https://voxeu.org/article/impact-clean-water-act
Meyer, Robinson. 2017. “How the U.S. Protects the Environment From Nixon to Trump: A Curious Person’s Guide to the Laws That Keep the Air Clean and Water Pure”. The Atlantic. Accessed September 21 2020.
National Resources Defense Council. 2017. “Clean Water Act at 45: Despite Success, It’s Under Attack.” Accessed June 2 2020. https://www.nrdc.org/experts/jon-devine/clean-water-act-45-despite-success-its-under-attack
Comment by Professor Morgan:
States play an important role in the implementing of the federal environmental regulations–especially with water and air. Also, Tribes and Territories can take on the implementation role. In my opinion, EPA often does a good job of coordinating with States, Tribes and Territories because they are critical to the success of the federal laws. They provide funding, training and other support directly to these entities as well.
Hi Professor Morgan,
You bring up an awesome point in saying states, as well as tribes and territories, take on the implementation role of federal environmental regulations. I was curious to know an example of tribes taking on the implementation role and found an article from the American Indian Law Review explaining the role of California Indian Tribes in regards to The Marine Life Protection Act. Here is an example of the California Legislature’s failure to specifically address the rights and concerns of Indian tribes even though much of the coast is Indian Country. The failure of the legislature to acknowledge the Indian people’s long-standing stewardship resulted in initial opposition from the tribes. However, despite initial misunderstandings, the act elevated tribal power in natural resource management. The authors depict the role of Indian tribes in the implementation of the policy’s tenants. Finally, the authors proceed to discuss how the final result instigated enhancement of state-tribal cooperation in general natural resource policy. I wonder about the relation between the role of tribes and territories in implementing state legislation compared to implementing federal legislation. I also wonder whether tribes and territories are more useful being consultants to legislators as opposed to implementers. Perhaps, the answer is we need tribal unique knowledge about natural resource management in both areas. Except, if tribes and territories accept their role as implementers, does that entail accepting the inability to have a say in policy-making particularly in regard to land rights?
Berkey, Curtis and Scott Williams. 2018-2019. “California Indian Tribes and the Marine Life Protection Law”. American Indian Law Review. 43 (2): 307-351.
Original Post by Laurel Golden:
Using the views expressed in the Federalist Society panel on Congress and Environmental Law, there was very little I agreed with. The first speaker, David Schoenbrod, strongly felt that constituents should be able to hold their representatives accountable for every environmental vote and not delegate any rule-making to agency subject-matter experts. Frankly, there are few elected officials qualified to make scientific policy and I would rather the agencies make rules. My hope would be that agencies would not be politicized and able to follow the science. Politicians, on the other hand, are dependent on donations from lobbying groups to remain in office, potentially affecting their views on environmental policy. The third speaker, Matt Leggett, illustrated the obstructionist Congress that President Obama faced. Once Speaker McConnell announced that his goal was to make Obama a one-term president, Obama was left with executive action as the only means to advance environmental policies. One of the Obama vetoes mentioned was for a copper and gold mine in Alaska, which has new life under the current administration (DeMarban 2020). This is over many objections from the people in Alaska (O’Hara 2018). From the panel discussion, I do not think that including sunset provisions would improve the environmental laws. There would be no way to know the leanings of the congress, perhaps leading to the loosening or elimination of standards at the end of the law. One interesting suggestion was to assemble state agencies, e.g., sanitation districts, to eliminate the obsolete verbiage. This would at least outdated requirements for the states. The stagnation of federal policy moved environmental issues to the states to innovate. California has taken the lead in environmental policy and regulation, leading to cleaner air, vehicle mileage advances, and the California Environmental Quality Act which requires that the environmental effects be avoided on government and government-approved projects. Many of the federal environmental rules are written as the baseline, allowing states to create stricter rules. While I agree with the ability to increase standards, I worry about the health of state residents where basic standards are not being enforced, or states that are suing to relax standards to attract industry. Overall, I feel there should be a federal standard that states are able to increase.
DeMarban, Alex. 2020. “Trump Administration Environmental Report Opens Door for Approval of Pebble Mine in Southwest Alaska.” Anchorage Daily News. July 24. Accessed July 27, 2020. https://www.adn.com/business-economy/2020/07/24/trump-administration-environmental-report-opens-door-for-approval-of-pebble-mine-in-southwest-alaska/.
Dennis, Brady, and Juliet Eilperin. 2019. “California and nearly two dozen other states sue Trump administration for the right to set fuel-efficiency standards.” The Washington Post. November 5. Accessed February 1, 2020. https://www.washingtonpost.com/climate-environment/2019/11/15/california-nearly-two-dozen-other-states-sue-trump-administration-right-require-more-fuel-efficient-cars/.
O’Hara, David L. 2018. “Bristol Bay and Pebble Mine: Mutual Flourishing or Midas’ Touch.” Ethics, Policy, and Environment 21, no. 1: 26-28.
State of California. 2014. “NEPA and CEQA: Integrating Federal and State Environmental Reviews.” Governor’s Office of Planning and Research. Accessed May 22, 2020. http://opr.ca.gov/docs/NEPA_CEQA_Handbook_Feb2014.pdf.
The Federalist Society. 2015. “The Role of Congress in Environmental Law.” YouTube. YouTube. November 14. https://www.youtube.com/watch?v=_PfITwn7g9s.
I agree specialization of roles is useful. First and foremost, having subject-matter experts is a tool at the disposal of representatives. It is important to allow the representatives to use a tool in whichever way they wish to bring about the most accurate perspective in rule-making. A way to increase the power of science in policy-making is to recognize the lacking knowledge many representatives have about specific scientific characteristics of a law’s context. Considering the wide breadth of laws a single representative is involved in, it is difficult for the representative to be knowledgeable about all of their contexts. Further, citizens elect Congressmen based upon their theoretical viewpoints and policy formation skills. They know very little about ability of candidates to implement. That said, Congressmen are highly motivated by re-election amongst other things and will not devote energy to implementation if it does not benefit them. Insofar as our nation depends on Congress to implement the laws it puts in place, the laws it works so hard to form will not actually be brought to fruition. Also, challenges with budgets and difficulty working with stakeholders is specific to the state a law is being implemented in. So, it makes sense to have the state specialize in implementation. As you mentioned, many of the federal environmental rules are written as the baseline, allowing states to create stricter rules. Ultimately, creating a federal standard the states are able to increase enables states to use their close-knit relationship with specific stakeholders to subside the impact of industry on environmental progress. Putting more power in the states makes its citizens less subject to the current presidential administration’s executive orders. The panel discussions revealed it is important to understand the leaning of Congress as its status can impact the role of executive action in environmental policy. It could lead to a situation similar to the one you described in Alaska where a copper and gold mine was established even though the local people objected to it.
Response by Laurel Golden:
I have a concern about the reliance by some politicians on groups like the American Legislative Exchange Council https://www.alec.org/ (ALEC). ALEC crafts legislation that meets the conservative, corporate-backed agendas of, mainly, the Republican party. Nearly identical legislation is introduced at both the state and federal level. At ALEC conferences, model bills about conservative issues, gun laws, blocking state “bailouts”, voter ID, etc., are presented for legislators to take back and propose as legislation. ALEC is described in an The Atlantic article as, “ALEC is an organization dedicated to the advancement of free market and limited government principles through a unique “public-private partnership” between state legislators and the corporate sector” (Scola 2012). I feel this is an example of why the non-partisan agency experts should create policy, avoiding politics as much as possible. Scola (2012) notes that ALEC is active at the state level, discounting the idea that the state decisions are any less politicized. In my opinion, until the Citizens United decision is reversed, there will continue to be incentives for corporations to use their money to influence policy, often anonymously. Thanks for the comments.
Scola, Nancy. 2012. “Exposing ALEC: How Conservative-Backed State Laws are All Conncected.” The Atlantic. April 14. Accessed September 27, 2020. https://www.theatlantic.com/politics/archive/2012/04/exposing-alec-how-conservative-backed-state-laws-are-all-connected/255869/.
Original Post by Ashley Staat:
I found the Federalist Society’s video to be an interesting perspective on the role of Congress and courts when making environmental policy. The general message seemed to be that our current environmental laws are largely outdated and have not been largely amended much since the 70s and 80s. Additionally, the sentiment that Congress shifts burdens onto the agencies to determine appropriate regulation to achieve the goals of the statute. The speakers expressed a few ideas of how policymaking could work such as requiring Congress to vote on major regulations or devolving environmental policy making to states and local government or sunsetting environmental laws to create a sense of urgency and a clean up of the Code of Regulations when it comes to environmental policy.
Since the environment is shared amongst States, I think that national environmental policies are necessary to establish a baseline for environmental and public health. Air and water are not bound by state borders, therefore establishing national legislation is necessary for policy goals to be achieved. However, broad national environmental policy tends to be vague to allow agencies to set standards based on economic and scientific data.
For instance, the Clean Water Act’s goal is to ‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters’ by eliminating the discharge of pollutants to navigable waterways (EPA 2018). This is the broad scope of the policy, for the EPA to reach this goal, they established regulations such as the National Pollution Discharge Elimination System permitting process that oversees point source discharges into waters of the U.S. (EPA 2018). Within the NPDES program, States are required to establish water quality standards for waterways. These standards are used when the EPA is determining appropriate pollutant discharge limits for each permit holder, based on the water quality of the waterway they discharge into. Publicly-owned treatment works (POTWs), local NGOs, state legislators, and EPA all work together to establish limits that are obtainable based on best available technology and water quality of the receiving waters. The POTW I work at is involved in a watershed workgroup comprised of other POTWs, the Conservation Foundation, and other stakeholders to address specific concerns for the waterway they discharge into. This watershed group studies the water quality of the watershed and works on restoring the integrity of the river by removing dams and restoring the natural flow of the river to restore biological and chemical integrity. By participating in this workgroup, we are able to deliberate with the EPA and state when it comes to pollutant limits imposed on POTWs (DRSCWG 2015).
I think the current structure allows for local and state water quality to voice concerns in regulatory development to the EPA and provide valuable scientific studies to aid in regulatory development. Additionally, when the EPA proposes a regulation, they publish the proposed rulemaking in the Federal Register for 30 to 60 days for public comment. This is important for stakeholders to respond and provide valuable insight and potential unseen consequences of the regulation. For instance, nitrogen and phosphorous are hot topics in water quality and the EPA is looking to create stringent limits on these pollutants. If my plant were to receive a limit now, we would have to invest $25 million dollars into plant upgrades to achieve those requirements. Instead, we work with a watershed group to restore the stream through ecological work to avoid regulations that would impact our municipality greatly while meeting water quality standards for our waterway.
I don’t think Congress has the technical experience to be able to vote on a proposed regulation. I do agree with the speakers in that accountability is lacking in environmental policy. I also think that States should create their own environmental policies when the federal government is lagging or fails to do so. Many States have begun doing so. Hawaii, New York, and California have moved to ban the pesticide chlorpyrifos, which is linked to neurological problems in young children after the Congress and the EPA failed to establish a ban on this pesticide (Dennis and Eilperin 2019). I think that states should step in where the federal government is slow to act. I think the more states that take action on a specific environmental problem, the more pressure is placed on the federal government to address the environmental concerns of constituents. However, when each state comes up with their own policies, it can make it complicated for industry to react and comply with varying policies. Ultimately, the federal government would have to create a general policy nationwide to create some consistency for industry.
Dennis, Brady and Juliet Eilperin. 2019. “California to Ban Controversial Pesticide, Citing Effects on Child Brain Development.” Washington Post, May 8, 2019. https://www.washingtonpost.com/climate-environment/2019/05/08/california-ban-controversial-pesticide-citing-effect-child-brain-development/Links to an external site..
DRSCWG. 2015. “About Us.” DuPage River Salt Creek Work Group. Accessed September 22, 2020. http://www.drscw.org/wp/about-us/Links to an external site..
EPA. 2018. “ https://www.epa.gov/enforcement/clean-water-act-cwa-and-federal-facilities#:~:text=The%20CWA%20aims%20to%20prevent,CWA%20section%20101(a)Links to an external site..
The Federalist Society. 2015. “The Role of Congress in Environmental Law.” YouTube. YouTube. November 14.
I agree pollution regulation needs to be subject to change based upon jurisdictional boundaries, particularly considering it can be transported across state lines. Investigating the court case of Georgia vs. Tennessee Copper Co. reveals the need for a federal minimum standard with states beings able to have higher standards is a way of acknowledging that as Americans we all deserve clean air.
Here is the instance of a company conducting business operations that are bringing environmental health concerns to citizens outside of its home state as sulphurous dioxide was seeping across the border. Justice Oliver Wendall Holmes declared the current domestic destruction Georgia’s crops, trees, orchards, forests and mountains have already faced should not be further polluted by the sulphuric acid gas beyond its control. In the end, the court granted Georgia’s request for an injunction against Copper Works in Tennessee. It’s interesting to see a form of checks and balances can be implemented as a response to one state being negatively impacted by another state’s actions. It is interesting to see outside states can go after corporations to generate money without suffering political consequences.
Response by Ashley Staat,
That’s a great example of why there is a need for a federal standards in environmental policy because environmental boundaries don’t really exist in the same realities as jurisdictional ones!