Enforcement and Inspection

Will States Step Up Environmental Enforcement?

Businesses in the United States may be breathing a sigh of relief with the Trump administration’s lack of enthusiasm to enforce the nation’s environmental regulations. But will environment, health, and safety (EHS) managers face increased pressure from states to stay in compliance? Let’s take a look at how a key organization views the issue.

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In a recent white paper, the Environmental Council of States (ECOS) laid out its views on the state/federal relationship when it comes to environmental enforcement.

The ECOS states that the idea of “Cooperative Federalism 2.0” is a vision to recast “state and federal roles for environmental management and public health protection at lower cost.” While the paper sets out nine principles of Cooperative Federalism and the state/federal roles, the basic message is that the states will forge ahead with implementation, but the U.S. Environmental Protection Agency (EPA) needs to continue to provide direction and resources.

Nine Principles

Here’s a summary view of the nine principles presented in ECOS’s idea of cooperative federalism.

Principle 1: Minimum standards

States should be engaged as keys partners in the development of national minimum environmental standards, but the EPA should continue to lead in setting and adopting these minimum standards.

Principle 2: Implementation

Preferably, states are the implementing authorities for national environmental regulatory programs. However, the EPA should continue to implement where it is required by federal law. In addition, the EPA should take over implementation where states decline the role or fail to implement the programs.

Principle 3: Flexibility

While the EPA should involve states and other partners early and often in developing federal standards and policies, the states should have the flexibility in determining how to best implement their individual programs.

Principle 4: Local engagement

States are responsible for engaging local governments, tribes, and communities in implementing national regulations, policies, and standards. The EPA is responsible for ensuring appropriate federal consultation with Native American tribes.

Principle 5: Enforcement

States are the primary enforcement authorities for delegated programs. The EPA should not interfere with this authority or even review decisions on a routine or recurring basis. The EPA should get involved only if programmatic audits indicate a need.

Principle 6: Audits

States are responsible for gathering, maintaining, and sharing information with the EPA concerning environmental programs based on agreed-upon measures and metrics. The EPA should periodically audit state implementation programs and step in where states are not adequately achieving standards.

Principle 7: Innovations

States should be encouraged to develop and implement state innovations to effectively achieve environmental results. States can set stricter standards than the federal standards. The EPA should act as a facilitator in pollutant-related interstate issues and provide funding and technical support for regional collaborations.

Principle 8: Shared services

While the states are responsible for cooperating with the EPA in developing shared services and key resources to facilitate permitting and reporting, the EPA is responsible for maintaining its research and data-gathering role and keeping states abreast of emerging challenges and successful technologies and remedies.

Principle 9: Funding

Here’s the nut of ECOS’s view of state/federal cooperation. States that choose to implement federal programs should be adequately funded by the federal government. The EPA should have sufficient resources to financially support states in the implementation of federal programs. The level of federal support should be based on the scope and complexity of the particular regulation, program, or policy.

Key Takeaway for EHS Managers

If the proposed EPA budget cuts are realized, with reduced funding to states, the EPA may find itself the main enforcement authority as states turn the programs back to the feds. However, it seems unlikely that Congress will allow the depths of the Trump administration’s proposed EPA budget cuts. EHS managers must remain engaged in the permitting and rule developments in their particular states.