Reinventing the State/Federal Relationship in Environmental Enforcement

Abstract:     
Most federal environmental statutes currently operate under a framework known as "cooperative federalism", in which states receive primary authority to implement the requirements of federal laws, under EPA supervision. Over the years, states have gradually assumed "primacy" in more and more areas; they now have authority to implement approximately three-quarters of the major federal environmental programs that can be delegated to them, and carry out in the neighborhood of eighty percent of the enforcement actions under the federal statutes. While states have long resented aspects of EPA oversight, some states traditionally relied on the presence of the federal "gorilla in the closet" to motivate compliance by regulated entities. But in the 1990's, tensions between EPA and the state grew considerably. States began vigorously pressing for increased autonomy and flexibility from the strictures of EPA oversight. They formed a highly effective organization of environmental commissioners (the Environmental Council of States, or ECOS) in 1993 to represent their interests in Washington, D.C. As a result, EPA embarked on efforts to rethink how its relationship with the states should be structured, leading in 1995 to the creation of the National Environmental Performance Partnership System ("NEPPS"), described as "the most substantial reform in the EPA-state relationships since those relationships were first established over twenty-five years ago".

This book provides an in-depth examination of the evolution of environmental enforcement policy and federal-state relations, beginning with the cooperative federalism model, first formalized in the mid-1980's, up through the current period of ongoing change and reevaluation. Our focus is on the fundamental questions at stake in the continuing and vigorous reinvention debate: Is deterrence-based enforcement, the prevalent societal approach for enforcing the law, best suited for ensuring compliance with environmental requirements? How well are the states performing their roles as the primary implementers and enforcers of federal environmental law? What does the "new relationship" between EPA and the states look like and can it be successfully integrated into EPA's traditional approach for evaluating state programs?

Accepted Paper Series