This week state air regulators praised the more flexible approach of the Environmental Protection Agency (EPA) under the Trump Administration in a Senate hearing which they say allows them to craft polices that reflect the issues facing their states and implement effective environmental protections.
Lawmakers heard from state officials at the Senate Committee on Environment and Public Works (EPW) Subcommittee on Clean Air and Nuclear Safety about the work states do primarily under the Clean Air Act, where they are responsible for the bulk of the implementation of any EPA air quality rules.
“Only three short years ago, I sat here…asking this body for assistance in changing the relationship between the states and their federal counterpart – the Environmental Protection Agency… Since my first testimony, states have gone from asking for a seat at the table to a discussion of what happens when we arrive,” Becky Keogh, Director of the Arkansas Department of Environmental Quality, told the committee.
Keogh said the previous administration eschewed cooperative federalism in favor of a top-down model where “functionally states were more pawn than partner.”
“Not only were states excluded from environmental-policy solutions, we weren’t even a part of the equation,” Keogh added.
“The EPA under the Obama Administration was more of ‘what have you been up to lately,’ not it’s ‘what can we do to help?’ And they actually are allowing us to do environmental protection,” said Dave Glatt, the Chief of the Environmental Health Section at the North Dakota Department of Health.
“For much of the history of the CAA [Clean Air Act] this was achieved through rulemaking where input from industry, the states, and the federal government was carefully considered to reach attainable targets,” Subcommittee Chair Sen. Mike Braun (R-IN) said in his opening statement.
Braun then targeted the Clean Power Plan (CPP) as a key example where this balance was broken. “Most notably 26 states went to the Supreme Court and asked for relief from the Clean Power Plan citing EPA’s lack of authority to issue that rule. In an unprecedented move the Court granted the states’ request and stayed the rule,” Braun said.
When asked if EPA properly consulted states when developing the CPP, Glatt said the relationship between federal regulators and state regulators charged with enforcing rules was not substantial. “They did consult with us, but it was superficial,” Glatt said.
Glatt added that he briefed EPA about the threat the CPP posed to the reliability of the electric grid. He concluded “they did not listen to us at all” after the EPA released a final rule that was significantly more stringent than their initial proposal for greenhouse gas reductions in North Dakota.
“Where cooperative federalism is embraced by both EPA and the states with respect to air quality, the result is relevant, lasting, and cost-effective environmental protection solutions,” Glatt wrote.
Under the cooperative model, Glatt argued, EPA was more responsive, increasing the adaptation of new technologies and allowing for more cost-effective best practices to be implemented.
“In our state under this doctrine, Superfund sites have been cost-effectively closed in a timely manner; use of compliance assistance technologies, such as optical gas imagining cameras were introduced for use in the oil fields; and EPA acknowledged and adopted a state-developed minor source air permitting program for oil wells that enhanced EPA’s regulatory presence on tribal lands,” he added.
States have also increased their technical expertise, Glatt said, to be “at par or exceed” federal government competency “in many areas of environmental protection.”
Keogh agreed. “The conventional narrative of the origins of federal regulation is a fable. Contrary to common perceptions, many measures of environmental quality were already improving prior to the advent of federal environmental laws,” she said.
The CPP has been stuck in legal limbo since that time and the Trump Administration has been busy with its replacement of the CPP with the “Affordable Clean Energy” rule.
Sen. Kevin Cramer (R-N.D.) agreed with the less top-heavy approach of the Trump Administration, adding that “whenever we get overly prescriptive… we don’t allow the type of innovation that I believe exists.”
Glatt pointed out that in the absence of the CPP, the market is naturally moving toward cleaner energy. “We are seeing more renewable, less coal, less emissions and that’s without any regulations,” he said.
