Environmental Federalism Part I: The History of Overfiling Under RCRA, the CWA, and the CAA Prior to Harmon, Smithfield, and CLEAN
The Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and the Clean Air Act (CAA) represent federal regulatory regimes for protecting the environment. Although each statute initially places administrative responsibility in the hands of the U.S. Environmental Protection Agency (EPA), each encourages states, to varying degrees, to take primary responsibility for implementing the statutory regime. States have responded to this opportunity by seeking and obtaining approval of state programs under RCRA, the CWA, and the CAA—over 80% of the states have fully or partially approved programs under each of these statutes.
State interests, however, are not always coincident with the federal interests reflected in EPA's policies—states may be more interested in attracting business or in promoting compliance rather than in assuring tough enforcement of environmental laws. States, therefore, can and do exercise prosecutorial discretion in ways different than EPA may desire (e.g., the state may elect not to take enforcement action, or not to impose penalties, or not to impose significant penalties) when EPA may believe significant penalties are appropriate.