States Demand Wheeler Explain EPA’s Stance on Federalism (2)

Sept. 27, 2019, 5:34 PMUpdated: Sept. 27, 2019, 9:03 PM

State regulators have taken the unusual step of requesting a meeting with EPA Administrator Andrew Wheeler to talk about what they see as an eroding relationship between federal and state agencies.

In a Sept. 26 letter to Wheeler, the Environmental Council of the States said recent communications and actions by the Environmental Protection Agency are “damaging” the long-standing relationship between the EPA and states, and “eroding our ability to jointly protect our citizens and the environment.”

ECOS also pointed to “recent letters to states and Federal Register notices that lacked discussion with and notification to states,” which it said violate the principles of cooperative federalism.

In recent days, the Trump administration launched three actions against California, whose leaders have criticized President Donald Trump’s environmental record.

On Sept. 26, the EPA sent a letter to California saying it is “concerned that California’s implementation of federal environmental laws is failing to meet its obligations” under federal law, and rapped the state for allowing human feces and other pollution to foul its water. On Sept. 24, EPA slammed the state for failing to file complete plans for fighting air pollution, threatening the loss of highway funding as a result. And last week, the administration moved to strip California’s authority to limit greenhouse gas emissions from vehicles.

States ‘Alarmed’

The request from ECOS, which consists of regulators from all 50 states, plus the District of Columbia and Puerto Rico, is an unusually bold move from the group, said California Environmental Protection Agency Secretary Jared Blumenfeld.

“They never, ever, ever send anything like this,” Blumenfeld told Bloomberg Environment. “I think states across the country, from Kentucky to Alaska to West Virginia, are all alarmed at the tenor of the U.S. EPA.”

And Betsy Southerland, a career EPA water official who left the agency in 2017, called the ECOS letter “a shocker” because most of the group’s cabinet members are Republicans.

The ECOS letter is important for two reasons: “The states are worried that the EPA is going to use its federal authority to go after states with which they have political disagreements. The other one is taking away the states’ ability to be more stringent than the federal government.”

Critics have said the Trump administration has only deferred to states when it wants to deregulate, not when it want to increase regulations. “It only goes in one direction,” said Tom McGarity, an administrative law professor at the University of Texas at Austin.

In July, the EPA released guidance that gives states the right to act first on local enforcement of federal rules. The guidance also clarifies that the EPA will notify state authorities before launching an inspection or enforcement action.

Market-Based Mechanisms

The EPA responded to ECOS in a statement provided to Bloomberg Environment, saying the agency has done a good job of giving the states more authority.

The Trump administration inherited a backlog of 700 state implementation plans under the Clean Air Act when it took office, and has been able to take actions on more than 400 of them, the EPA.

The EPA has also approved 231 state water quality standards since January 2017, Wheeler wrote, reducing its backlog of outstanding actions by some 20 percent. The agency has also improved incentives for state water quality trading programs, reducing impediments and fostering market-based mechanisms, Wheeler wrote.

The EPA didn’t indicate in the statement whether Wheeler would grant ECOS’ request for a meeting. However, it also said the EPA’s senior leadership has been meeting at the ECOS conference this week in Seattle “and found these meeting[s] to have been productive.” The agency “believes it fulfills ECOS’ request in its statement today,” the statement said.

If Wheeler doesn’t grant ECOS’ meeting request, the group’s members will “discuss a way forward,” said Don Welsh, ECOS’ executive director.

At a July 17 Heritage Foundation forum on federalism, Wheeler said that since March 2017 the EPA has, on average, turned one federal implementation plan into a state plan per month. But, he added, “states don’t always do the appropriate thing,” and “federalism does not mean that one state can dictate national standards or decisions.”

In the statement responding to ECOS, the EPA said the backlog of 700 state implementation plans included 127 from California—more than any other state—and none prompted California’s attainment of air quality standards.

‘Political Score-Settling’

But Janet McCabe, who headed the EPA Office of Air and Radiation during the last two years of the Obama presidency, said the EPA’s notification to California on its failure to submit state implementation plans to improve air quality is “blatantly out of the mainstream of how EPA generally works with states.”

And Cynthia Giles, who was head of enforcement at EPA during the Obama years, called the Sept. 26 letter from EPA to California “payback, plain and simple.”

“EPA’s authority should not be used to bludgeon states for having the backbone to take on essential climate work that the Trump administration has abandoned,” Giles said.

On Capitol Hill, Sen. Dianne Feinstein (D-Calif.) called on the EPA’s inspector general to investigate the agency on its threats to cut California’s highway funding over air quality violations.

“I am concerned that California is being unfairly targeted, and that this issue of backlogged state implementation plans is nothing more than a pretext to attack California, rather than a good-faith effort to help improve California’s air quality,” she said in a letter on Sept. 27.

EPA’s current strategic plan contains a six-page section stressing its desire to achieve “shared governance and enhanced collaboration with state, tribal, local, and federal partners.”

But EPA’s recent actions “are not at all cooperative,” said David Coursen, a former attorney in EPA’s Office of General Counsel.

“It’s incongruous for EPA to adopt a goal of cooperative federalism when they’ve been disempowering a state that has been quite a leader in environmental protection,” said Coursen, referring to California.

Rep. Jared Huffman (D-Calif.) told Bloomberg Environment he thought the California Air Resources Board, “which is going to be far tougher on any nonattainment of air quality standards than the Trump administration, would love federal help with actually cleaning up the air. But that’s not what this is.”

“This level of pettiness and political-score settling is a feature, not a bug, of this administration,” Huffman said. “No one should really be surprised.”

—With assistance from Emily C. Dooley, Tiffany Stecker, and Amena H. Saiyid.

(Adds quote from former EPA enforcement head in paragraphs 23 and 24, Sen. Dianne Feinstein in paragraphs 25 and 26.)

To contact the reporter on this story: Stephen Lee in Washington at stephenlee@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Rob Tricchinelli at rtricchinelli@bloombergenvironment.com

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