Rethinking the Federal-State Relationship

• Date: 01 July 2019

7-2019 NEWS & ANALYSIS 49 ELR 10619

DIALOGUE

Rethinking the

Federal-State Relationship

Summary

Cooperative federalism can lead to more ecient

and pragmatic environmental protection, and allow

states to develop eective programs tailored to their

needs and resources. Nevertheless, the future of the

federal-state relationship in the environmental con-

text is uncertain as state and federal priorities come

into conict: for instance, EPA’s proposal to revoke

California’s authority to regulate tailpipe emissions of

greenhouse gases. Recent reports have begun a dis-

cussion on the future of cooperative federalism and

environmental protection, but signicant questions

remain unanswered. On February 28, 2019, ELI

held a discussion of the opportunities presented by

increased state autonomy in environmental protec-

tion, including panelists expert in interstate environ-

mental coordination and with signicant experience

in environmental compliance and stewardship. Below,

we present a transcript of the discussion, which has

been edited for style, clarity, and space considerations.

Donald Welsh (moderator) is Executive Director of the

Environmental Council of the States.

Julia Anastasio is Executive Director of and General

Counsel at the Association of Clean Water Administ rators.

Scott Fulton is President of the Environmental Law

Institute.

Sylvia Quast is Regional Counsel for U.S. Environmental

Protection Agency Region 9.

Donald Welsh: I’ve been asked to give a brief overview of

the Environmental Council of the States’ (ECOS’) work on

Cooperative Federalism 2.0. I am new to ECOS, just start-

ing in my role in January, but I do have 35 years’ experi-

ence working in state and federal environmental progra ms.

Over those years, I’ve been a witness to and a participant

in a number of arguments about the appropriate roles for

state and federal activity in environmental protection.

ose arguments and debates have gone on under a num-

ber of buzz terms like top-down, command and control,

unfunded mandates, pha ntom delegation, paradigm shift,

and the environmental cop—whether he is or he isn’t on

the beat. While much seems the sa me today in t hose argu-

ments, much has really changed over time.

ECOS has distilled t he products of those historic debates

and placed them in a modern context. In the 45 years since

the environmental statutes were originally passed, the

states have assumed more than 96% of the delegable pro-

grams and they have ga ined experience and expertise at

running those progr ams. New to ols and new technologies

have been developed over the years that allow better use of

data and better protection of the environment.

In 2017, ECOS published nine principles of the state

and federal roles in environmental protection in Coopera-

tive Federalism 2.0.1 Cooperative Federalism 2.0 is really a

recalibration of state and federal roles that c an lead to more

eective environmental management at a lower cost. It’s

important to point out that this isn’t intended as a battle

over who’s boss in environmental protection, but it’s really

an eort to dene the roles, commensurate with t he capac-

ities and the strengths of each, to avoid working at cross-

purposes and to avoid duplication of eort.

I will attempt to give the short bumper-sticker version

of the nine pr inciples included in Cooperative Federalism

2.0. But if you want to see the fuller explanation of the

principles, you can nd the report on the ECOS website.

Principle number one is national minimum standards.

e report says that the U.S. Environmental Protection

Agency (EPA) should continue to have the lead in setting

1. ECOS, C F 2.0: A  M

 C E  P P H (2017),

available at https://www.ecos.org/wp-content/uploads/2017/06/ECOS-

Cooperative-Federalism-2.0-June-17-FINAL.pdf.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.