A new study from the U.S. Chamber of Commerce illustrates the implications of this federal takeover of state-run programs. The Growing Burden of Unfunded EPA Mandates on the States describes how a cooperative federal-state relationship with the Environmental Protection Agency (EPA) evolved into one in which the states are mandated to implement more and more federal environmental programs with less and less money from the feds. And if states do not obey federal mandates, there is a constant threat that EPA will take over state environmental programs.
According to the Environmental Council of the States (ECOS), the states administered 96.5% of all federal delegated environmental programs in 2014. But federal funding to help the states do this job only covered about 28% of what the states actually needed. If EPA continues to impose more and more regulatory burdens on the states, it might force a collapse of co-operative federalism, which would be a disaster for the administration of environmental law.
The clearest illustration of the burdens EPA has imposed on states within the last year is the issuance of three massive new regulatory programs without any additional resources to cover the costs incurred by the states. EPA, using the Clean Power Plan, essentially mandated the rearrangement of the fuel mix for electric power generation in the respective states. Using the Clean Water Act, EPA through its “Waters of the United States” rule imposes water discharge permit conditions on vast areas of the land mass of the states. Finally, EPA issued new Ozone NAAQS regulations that limit development in areas not in attainment with the Clean Air Act.
The alternatives to solve this dilemma are limited and unlikely to be selected:
- Congress can appropriate more money, which it does not have.
- EPA could be more reasonable in its mandates by recognizing the limits of state resources.
- States could return their delegated programs to EPA to administer, an action that could carry devastating consequences to states, citizens and businesses if EPA fails to properly administer the returned programs.
Conversely, even when EPA does not like the way a state is implementing programs for which states are given the lead authority by statute — such as regional haze, a visibility (not health-based) issue — EPA takes over the state program by imposing Federal Implementation Plans (FIPs). Although this type of federal takeover of a state program is supposed to be EPA’s “nuclear option” — rarely, if ever, to actually be used — EPA recently has been imposing FIPs on a routine basis. One study found that EPA has elected to impose 50 FIPs on the states between 2008 and 2014. By comparison, the George H.W. Bush, Bill Clinton and George W. Bush administrations together finalized just 5 FIPs over twenty years.
Our Constitution set up a system of federalism in which those powers not granted to the federal government are reserved for the states. By failing to follow Congress’ instructions as outlined by the Unfunded Mandates Reform Act, EPA has commandeered state resources and personnel to take over state energy policy, land use management and the location of project expansion and new projects.
The Growing Burden of Unfunded EPA Mandates on the States calls on Congress to take specific steps to preserve federal-state cooperation, which includes redefining the term “mandate” in the Unfunded Mandate Reform Act; requiring agencies to perform an analysis of likely unfunded mandate impacts; and enacting the Regulatory Accountability Act and the Sunshine for Regulatory Decrees and Settlements Act.
It is time to place limits on EPA’s power grab, otherwise the agency will destroy federalism, the very structure that encourages and allows for the achievement of the environmental protection we enjoy today.
To read the full study, visit uschamber.com/etra.
Bill Kovacs is the senior vice president for the Environment, Technology & Regulatory Affairs at the U.S. Chamber of Commerce.