Sharing Responsibility for Pollution Control in the United States

Sharing Responsibility for Pollution Control in Environmental Law

The EPA is the best known of the agencies charged with protecting the environment, but it is by no means the only one. Even after the EPA assumed centralized responsibility for environmental laws, other federal agencies have some input into what the EPA does, and a few have exclusive authority in identified areas. Thus, the Coast Guard deals with coastal pollution and ocean dumping; the Corps of Engineers is tasked with initially issuing permits for dredge and fill operations in wetlands; the Fish and Wildlife Service designates endangered and threatened species; the Occupational Safety and Health Administration governs the work environment, and the Department of Transportation deals with hazardous materials during transportation. These are only a few federal agencies that have environmental responsibilities.

With the increasing use of computers, many agencies, including the EPA, can and do make their databases available to other agencies. The data sharing arrangement is usually formalized under some type of agreement called a memorandum of agreement (MOA) or memorandum of understanding (MOU). Such agreements are difficult to finalize, but a formal agreement is not the only way to get the procedure under way. Cross training for inspectors is also common, particularly in the OSHA and EPA dominated spheres. An OSHA inspector may spot an environmental violation and notify the EPA, and the EPA inspector reciprocates.

Defining the scope of an agency’s power involves the concept of jurisdiction, which simply means the power to govern. No governmental body can create its own jurisdiction; it must come either from a statute or from the Constitution. Agencies have no authority beyond that given to them in statutes. One agency may share responsibilities with another or have exclusive responsibility. An agency may have the right to a voice in another agency’s decision, or it may be able to determine the outcome.

The closer the government is to the polluted area, the greater its interest in the welfare of the people affected and the protection of the natural resources. So even though state and local governments have no jurisdiction beyond the limits of their physical territories, they, too have an interest in the environment. Often they have a stronger interest than the federal government.

State law is very important in dealing with environmental pollution. The reason is simple: a state cannot negate federal law by passing less demanding environmental laws, but it can and often does pass tougher laws. It may also choose to regulate activities that are not regulated by the federal government. The only restrictions on states’ power in this regard are the U.S. Constitution, federal laws, and the state’s own statutes and constitution. When Ronald Reagan was president, he pushed for localized control over environmental pollution. In response, legislators began to incorporate into the statutes provisions for the transfer of some federal environmental programs to states.

But federal law is the supreme law of the land; its position of primacy is determined by the Constitution. Congress has exclusive jurisdiction over national issues, such as interstate commerce. Furthermore, if it is in the interest of the United States, Congress may pass a law that essentially takes away the states’ right to regulate. Such a move is called preemption.

When it comes to the environment, many issues must be determined at the federal level for several reasons. First, even though land lies completely within the borders of a state, surface water, groundwater, and air do not, and the EPA has been given broad authority to regulate issues that impact the United States as a whole. Also, competition among states for business and industry often presents problems that make federal control preferable to state control. If one state can attract businesses because its environmental requirements are less burdensome than those in another state, the environment may suffer. Hazardous wastes present related problems. Sitting a hazardous waste facility in a particular state or bringing in hazardous waste from another state may generate terrific political pressure. Yet hazardous waste is generated, and it must go somewhere until we know how to destroy it or render it harmless. For that reason, state laws prohibiting importing hazardous waste have been declared unconstitutional as a burden on interstate commerce.

Congress, therefore, established the ground rules of jurisdiction in statutes and gave the EPA many specific assignments with the general goal of protecting the environment. When it acts, the EPA sets the bottom limit for conduct relating to the environment within the United States and the Territories. States cannot circumvent the impact of the regulation or statute by enacting laws that do not have the same bite, because federal law applies within the state.

Often, though, states prefer to handle their own enforcement of environmental violations. Two methods make it possible for the state to be the primary regulator of pollution. The first is for the state to develop laws that are more stringent than the federal ones. If the laws do not invade an area reserved to the federal government and are not unconstitutional under the state’s constitution, they are valid and can be enforced by the state. The second method, delegation, is made possible by federal provision and is commonly used today. To get the EPA to delegate its authority to the state, the state must design a regulatory program, write regulations that are consistent with the federal ones, and then ask the EPA to give it authority to assume the program. The Clean Air Act was the first law to incorporate a delegation scheme, but other statutes now have comparable provisions.

When a program is delegated, the state becomes the primary or lead environmental agency. It issues permits, receives the reports and notices required by the law, holds hearings and enforces. The EPA takes a backseat in the areas that are delegated but stays involved by monitoring the state’s actions and periodically reexamining the state program. If it chooses, it can step in and enforce. If the state regulations are identical to the federal ones, as is often the case, it doesn’t matter which regulations are the basis for the enforcement action. But if the state standards are more difficult to meet and the program has been delegated, the EPA can enforce the state regulations if it chooses to do so.

The major problem for the regulated community occurs when states opt for stricter standards in federally covered programs. If the business or regulated person has an interstate business, different requirements may apply in different states, and keeping up with the variations is an intensive endeavor.
Based on “Environment and the Law. A Dictionary”.