States cannot regulate environment without EPA support
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Under the Trump administration’s recently proposed budget, the Environmental Protection Agency (EPA) is to play a supporting role to states and Native American tribes in their efforts to protect health and the environment.

The primacy of states and the secondary role of the EPA would mark a fundamental shift in environmental regulation. The EPA has developed deep and critical partnerships with states to allow those states to enforce delegated federal laws as well as their own. 

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At the same time, the EPA provides key oversight to ensures that high standards are met across the country. The proposed budget, if enacted, would upend those roles.

 

There are many important reasons for the EPA to play a strong federal role. In a time of increasing costs and shrinking state coffers, the EPA provides a backstop for environmental protection as well as critical financial and technical support. Indeed, states often lack the resources to handle large-scale environmental emergencies on their own (e.g., Macondo Spill, Flint drinking water). 

Regional programs frequently require federal leadership and support to bridge differing state interests. Implementation and enforcement of federal laws can be uneven among states. The EPA can provide consistency and predictability, important for business operations and economic development.    

However, in a response to alleged regulatory overreach by the Obama EPA, the Trump budget would shrink the EPA down significantly, cutting the Agency by over 30 percent and eliminating 3,200 jobs. In so doing, the proposal undercuts its stated goal of state/tribal primacy. 

With the exception of a modest 2 percent increase in state revolving funds for drinking and wastewater infrastructure, the budget significantly reduces the EPA’s ability to assist and enhance state implementation and enforcement. The EPA supports state and tribal efforts through categorical grants, Superfund cleanup monies, research and development and regional programs. 

All of these face steep cuts — or more — in the proposed budget. For example, categorical grants, which allow states to implement vital air, water, waste and chemical programs, including permitting, are cut nearly 45 percent. State environmental officials estimate these grants alone support on average 27 percent of state environmental budgets. 

The Superfund program is reduced 30 percent. Regional programs, which benefit local economic development, like the Great Lakes Restoration Initiative and the Chesapeake Bay recovery, are slated for closure. Infrastructure projects for Alaska Natives and at the Mexican border (to prevent sewage from reaching U.S. shores) are zeroed out.

The proposed budget also shrinks the EPA’s enforcement program by 23 percent, significantly hampering federal efforts, but also state enforcement programs supported by the EPA. 

The EPA enforcement provides valuable resources to states in terms of shared penalties and projects. The proposal asserts that states should be the primary enforcers of federal delegated authority while the EPA focuses on other laws. But the delegations are comprehensive, including air and water pollution, drinking water protection and hazardous wastes. 

Without the EPA’s technical and financial support, states will be hard pressed to play a leadership role, raising the risk of inconsistent state enforcement.  This only hurts the business environment. There is a fundamental inconsistency in the budget. One cannot expect states to take on a primary role if key funding is cut, and the EPA cannot be a supporting partner if its role is so diminished. 

Leading congressional figures have pushed back, saying the proposal is only that — just a proposal. Congress sets the final budget and can ensure funding for important programs. But the proposal is likely a starting place for negotiations, and the EPA’s funding — and its support of the states — is still likely to be dramatically reduced. 

While the proposal may be more about messaging than reality, it is hard to see in this message a White House commitment to consistent, high levels of protection for the environment and public health.     

 

James Rubin is a partner at the international law firm Dorsey & Whitney. Before going into private practice, Rubin served for 15 years in the Environment and Natural Resources Division of the U.S. Department of Justice.


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