EPA Provides Additional Cooperative Federalism Policy While Going After California for Stricter Auto Emission Standards

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EPA Provides Additional Cooperative Federalism Policy While Going After California for Stricter Auto Emission Standards

By: George Colvin, CPG, CHMM

Published in September 2019 Focus on the Environment Newsletter

On July 11, 2019, U.S. EPA (EPA) released final policy designed to enhance effective partnerships with states in civil enforcement and compliance assurance work. The final policy memorandum is based primarily on an October 30, 2018 Andrew Wheeler memo and to a limited degree on Environmental Council of States (ECOS) recommendations as well as public review and comment.  Articulated in a memorandum from EPA’s Assistant Administrator for Enforcement and Compliance Susan Bodine, the final policy memorandum is divided into three sections.  The first section details requirements for joint planning and regular communication between EPA and states to promote enhanced, shared accountability.  The second section of the policy provides greater detail on EPA and state roles and responsibilities in implementing authorized programs.  The third and last section of the policy provides a process for the elevation and resolution of issues.

The policy reinforces the current administration’s notion of cooperative federalism  – generally deferring to states as the primary implementer of authorized program.  Exceptions to this general rule, as outlined in the policy could include the following:

  • Where the state requests that the EPA take the lead;
  • Enforcement of National Compliance Initiatives;
  • Emergency situations or situations where a substantial risk to human health and the environment exists;
  • Situations where a state lacks adequate equipment, resources, or expertise;
  • Situations involving multi-state or multi-jurisdictional interests or interstate impacts;
  • Significant violations that the state has not timely or appropriately addressed;
  • Serious violations for which the EPA criminal enforcement authorities may be needed;
  • State enforcement program review inspections; and
  • Situations that involve enforcement at federal and state owned or operated facilities.

Until recently, the Trump administration has been clear on its position on cooperative federalism as it applies to EPA. Consequently, unless targeted through the current National Compliance Initiatives (formerly National Enforcement Initiatives), most facilities and sites will not see a significant change as the result of this policy. Those facilities which are part of the National Compliance Initiatives may see an increase in federal involvement, especially where violations have occurred. 

Someone at EPA should have reminded the Trump administration of the July 11, 2019 effective partnerships memo before it decided, based clearly on politics, to revoke California’s long-standing right to set stricter air pollution standards for cars and light duty trucks.  As this issue proceeds in the courts, states will be watching, and the Trump Administration’s credibility when it comes to cooperation, under cooperative federalism, will be tested.

George H. Colvin is a hydrogeologist with over 30 years of consulting experience. Much of his experience has focused on RCRA Corrective Action, RCRA closure, and groundwater investigation, monitoring, and cleanup. He holds a BS in Geology from Ohio University and MS in geology and hydrology from Vanderbilt University. He is a Certified Professional Geologist with the American Institute of Professional Geologists, a registered geologist in Kentucky, Pennsylvania, and Tennessee, and a Certified Hazardous Materials Manager.