As EPA Embarks on Dangerous Experiment in Federalism, How Will States Respond?

In the early 1970s, Congress passed the Clean Air Act and Clean Water Act on nearly unanimous votes. The overwhelming support for these new laws reflected not only the horrific condition of America’s air, water, and landscape at the time, but also an appreciation of the collective action problem states faced, necessitating federal action.

The major environmental laws that passed in the following years were predicated on the need to set a federal floor for environmental standards in order to provide all Americans with a basic right to clean air, safe water, and a healthy environment, no matter the state they lived in. The laws also represented an understanding that states were no more likely to act alone in investing in new regulatory programs than a business would be to self-regulate without corresponding action from its competitors.

The clear consensus, then, was that the federal government must act to end the race to the bottom among states, setting minimum standards for all 50 states that some could then choose to exceed. Fast forward 40-plus years, and we must now contemplate what happens when the federal government takes a sledgehammer to the regulatory floor.

The new EPA administrator, Scott Pruitt, made his bones as a champion of the federalist approach to environmental regulation. And even though this ideological cloak is one that Pruitt will be quick to doff when it suits his true guiding interest in deregulation, we can expect to hear much more rhetoric from the EPA administrator in the coming years about allowing states to exercise their sovereign authority to make their own decisions about how to implement environmental protections within their borders.

We shouldn’t be fooled by it, of course, since the federalism dodge is a thinly veiled rationale for making it easier for industry to keep profiting from pollution. And it’s hard to envision that most states that were unwilling to regulate powerful industries within their borders in the 1960s have developed much more of an appetite for it in the decades since.

So should we expect this dangerous experiment to devolve into another race to the bottom over the next four or more years? Without speculating as to the likelihood of major congressional changes to federal environmental laws over the next few years, it is clear already that less EPA enforcement, fewer regulatory initiatives, and much smaller budgets will put states back in the position of having to decide for themselves whether or not to fill the federal void by appropriating greater resources to protect public health and the environment.

While many states will surely take the opportunity to relax environmental standards to curry favor with local industries, might it be possible that others will take a different opportunity to push for greater progress? Could it be that some states with post-industrial economies might even compete to distinguish themselves from their neighbors by creating an environmental “race to the top,” perhaps even using some of the new-found tax capacity created by the impending federal tax cuts to bolster state spending on environmental protection?

The era of “Big Data” offers some cause for hope. The idea of measuring “environmental amenities” is not a new one. Several organizations have launched impressive efforts to quantify and rank international environmental quality and integrity, as well as the stringency and effectiveness of various nations’ regulatory frameworks (Yale University’s EPI Global Metrics is my favorite). Domestically, we can pursue the American Lung Association’s annual State of the Air rankings of states, the EPA My Waters Mapper, and other projects that allow citizens to compare the environment in different communities. There are now even websites that allow people to see which states offer the cleanest environment for their residents.

One can easily imagine the many data-centric real estate apps like Zillow, Trulia, and Redfin expanding their offerings to allow prospective home buyers and businesses to compare composite scores of local environmental quality in differing states, counties, or even neighborhoods in the same way they can now compare school districts, crime rates, traffic congestion, walkability scores, and many other features of a given area. In such a world where people can shop around for the healthiest environment for their families and cleanest location for their homes and businesses, it would not be difficult to foresee policymakers responding to the complaints from constituents, real estate agents, small businesses, and the tourism industry about worsening environmental scores and the need to invest in greater protection to stay one step ahead of the neighboring state or county in the rankings.

In the meantime, shorter-term and more direct consequences of Pruitt’s obsession with federalism and deregulation are already starting to arise. In addition to setting a federal floor, one of the other classic explanations supporting the need for federal environmental standards is the problem posed by interstate pollution. As the Chesapeake Bay Policy Analyst at the Center for Progressive Reform, this is an issue I grapple with on a daily basis.

Much attention recently has gone to the Trump administration’s budget for fiscal 2018, which eliminates EPA’s Chesapeake Bay funding. As I wrote last week, these cuts would be disastrous for the Chesapeake Bay restoration effort if allowed to stand. Nevertheless, some states in the region are pressing ahead to meet the commitments to each other under the Chesapeake Bay Agreement to reduce interstate water pollution and – in the process – restore local water quality.

New York Governor Andrew Cuomo is currently working with the legislature on a surprisingly bold $2 billion Clean Water Infrastructure Act to address bipartisan concerns about deficient water infrastructure across the state. Pennsylvania has been considering a Republican proposal to levy a fee of one-hundredth of one cent per gallon on large withdrawals of water (exceeding 10,000 gallons, typically from the industrial and power sectors), which would generate over $200 million per year for the state to use on efforts to restore its streams and rivers and accelerate its Bay restoration work.

Outside of the Chesapeake Bay watershed, some Republicans in Florida have recently pushed to expand the $1.2 billion legislative plan to restore the Everglades and avoid a repeat of the massive algal blooms that blanketed the coast this summer. The expanded plan would generate $3.3 billion for restoration projects statewide.

Anyone who has followed the restoration efforts in the Chesapeake Bay knows that the progress we have seen is primarily the result of similar decisions made by state officials in the past to invest billions in clean water infrastructure upgrades. These capital investments would have been unlikely but for the pressure applied by EPA and the accountability framework established through interstate agreements and partnerships. But the states now have the blueprint for success, and others are starting to catch on and push forward on their own.

The Trump administration and the Pruitt EPA may succeed in dismantling uniform nationwide environmental standards that have been in place for decades, but the historically low poll numbers for this administration are likely to only get worse if it continues its assault on our environmental safeguards.

State officials are taking notice of the public’s concerns, and some are already pushing back hard and going in the opposite direction from the federal government. As cracks emerge in the floor established by federal environmental standards thanks to the Trump administration’s deregulatory agenda and extreme attacks on agency budgets, we will need to do everything we can to help push states to respond by raising the ceiling for their own environmental protections.