EPA Defines Cooperative Federalism for Oversight of Federal Environmental Programs Implemented by States

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EPA Defines Cooperative Federalism for Oversight of Federal Environmental Programs Implemented by States

By: George Colvin, CPG, CHMM

On October 30, 2018, Acting U.S. EPA (EPA) Administrator Andrew Wheeler issued guidance defining EPA’s role, principals, and best practices for oversight of federal environmental programs implemented by states and tribes in the era of cooperative federalism. EPA’s 2018-2022 Strategic Plan identified cooperative federalism and the rebalancing of power between Washington and the states as one of three EPA strategic goals for the nation. Since publication of the 2018-2022 Strategic Plan in February 2018, EPA and the states (through the Environmental Council of States [ECOS] and the Association of State and Territorial Solid Waste Management Officials [ASTSWMO]), have worked together to define the details of shared accountability in the implementation of federal environmental programs.

The Wheeler memo draws upon a number of documents on state, tribal, and federal roles including the June 2018 ECOS “Principals for EPA Oversight of Delegated Federal Programs Under ECOS Cooperative Federalism 2.0, and identifies the following four key principals guiding EPA’s oversight of state-and tribal-implemented programs:

  • General deference to states and tribes implementing federally delegated programs
  • Effective communication
  • Clear standards of review and predictable processes
  • Clear process for elevation of issues

Regarding the general deference to states and tribes, the Wheeler memo declares

“States and tribes have the primary role in state-and tribal-implemented federal programs, and the EPA will generally defer to states and tribes in their day-to-day activities.”

According to the Wheeler memo, EPA oversight of state- and tribal- implemented programs will be guided by the four key principals and generally will be performed through formal retrospective reviews, regular meetings and discussions, and matter-specific consultation. “Retrospective” is a key word here, as EPA is saying that it will avoid routine and contemporaneous review of individual decisions made by delegated states. This was specifically identified by ECOS as part of their interpretation of cooperative federalism (see Principals for EPA Oversight of Delegated Federal Programs Under ECOS Cooperative Federalism 2.0).

The EPA Wheeler memo identifies situations for which direct federal actions may be necessary, but clearly states that “Withdrawal of program implementation authority is a last option to be considered after all other options have been exhausted or when human health and the environment are at risk.” Situations which may require direct federal action include:

  • Substantial risk of harm to human health and the environment
  • The state or tribe does not have the resources, capability, or will to effectively implement programs
  • The state or tribe may be making a program implementation decision inconsistent with federal-program requirements
  • The issue involves national interest or priority
  • The state or tribe has a documented history of not adequately implementing particular components of their program (such as not addressing significant non-compliance)The Wheeler memo appears to incorporate ECOS-recommended principals for EPA oversight except for the areas of research and funding, which are conspicuously missing. Principal No. 3 (Federal Support for State Delegated Programs) of the ECOS document states “EPA should help states meet delegated program obligations by providing technical expertise, guidance, research and funding.” The subjects of funding and EPA research may simply have been considered by EPA to be beyond the scope of the Wheeler oversight memo. Alternatively, the absence of any discussion of funding or supporting research in the Wheeler memo may underscore the difference between the Trump administration and the states in exactly how cooperative federalism is defined.  

Published in Cox-Colvin’s November 2018 Focus on the Environment newsletter.

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.