The New Federalism in Environmental Law: Taking Stock

Presentations delivered at the Eleventh Annual ABA Standing Committee on Environmental Law Conference on the Environment, May 7-8, 1982

[12 ELR 15065]

Introduction

The Articles & Notes section of this issue of ELR is devoted to publication of the papers and proceedings of the May 1982 Airlie House Conference, 'The New Federalism in Environmental Law: Taking Stock,' sponsored by the American Bar Association Standing Committee on Environmental Law. In pursuit of the Reagan Administration's goals to reduce federal spending and to shift regulatory responsibilities to the states, the Environmental Protection Agency (EPA) is redefining its relationship with state agencies in the implementation of national pollution control laws. By speeding the pace of delegation of air and water pollution, hazardous waste, and surface mining regulatory programs to the states, reducing the need for federal approval before states can act under these delegated programs, and transferring more environmental quality decisions to them, EPA has already shifted considerable responsibility for carrying out federal pollution control laws to the states.

The proponents of this New Federalism argue that the time is right to streamline what has become a wasteful and oppressive system of domination of states participating in federal programs. Transforming EPA from a meddling watchdog to an efficient manager will save time and money and will not weaken the programs. Because the basic federal regulatory framework is in place, most state agencies have established over the last ten years the sophisticated regulatory capabilities needed to implement those regulations, and a combination of EPA spot-checking and public vigilance will forestall any breakdown in state implementation.

While the New Federalism in environmental law does offer the potential for greater efficiency, less waste, and a shift of government responsibility closer to the people governed, it also entails risks to the environmental protection programs laboriously constructed in the 1970s. It must be viewed in the context of EPA budget cuts that will trim back programs that everyone agrees must remain in federal hands: research, development of pollution control standards, and resolution of interstate and international pollution problems, as well as budget cuts that next year will significantly reduce the federal grants that provide almost half of the state pollution control agency operating resources. Both EPA (which retains responsibility for rapidly growing programs like Superfund) and the states will have to do more with less. Moreover, in the past, even with EPA looking over their shoulders on virtually every pollution control decision and wielding potent economic and other sanctions to ensure compliance, many states failed to comply fully with the mandates of the federal statutes which they had agreed to implement. With less federal money, a looser federal rein, and more programs to worry about, even greater slippage is a very real possibility. Some environmentalists argue that under these circumstances the New Federalism will produce deregulation.

While it is too early to tell which view of the New Federalism will prove to be the more accurate, the Airlie House Conference provides an assessment of what is at stake and insightful analysis of the factors that will determine the eventual result. By presenting speakers from all points of view who are truly expert in the complex subject of federal/state relations in environmental protection, and by circulating issue papers in advance, the conference produced a highly sophisticated and coherent discussion. The material presented here, combining the issue papers and much of the discussion, is a thoughtful review of the basic roles of each level of government in the tangled institutional 'partnership' established by the federal pollution control laws of the 1970s, and an evaluation of the potential benefits and risks of the restructuring of that partnership that is now in progress as part of the New Federalism.—The Editors