March 01, 2018

Water and Air Quality: An Opportunity for States

Thomas B. Salzer

The tensions surrounding claims of dominance between the executive and legislative branches of the federal government have been playing out intensely in popular press headlines for the last 10 months, but really for decades. Recently, this battle has even caused the man on the street to venture into bars and coffee houses midday to watch Senate hearings on the executive branch changing the Federal Bureau of Investigation leadership. Against this backdrop, this article analyzes the existing statutory basis of federal and state governments’ environmental powers, specifically concerning surface water quality and air quality.

Certainly, the term “environment” will cause many, if not most, readers to think of the Paris Agreement on climate change. However, this article will not address the pros and cons of this treaty and movement, but instead will look at how much, or rather how little, a single political, partisan federal administration can affect or guide water and air quality in U.S. states and territories based on the wording of the Clean Air Act and the Clean Water Act.

When juxtaposing the states’ role in environmental policy to the federal government’s, it is not routine, but in the author’s opinion appropriate, to consider the social forces at play. The nineteenth-century industrialization of the United States found civil engineers christening municipal water systems in New York and Philadelphia, among other major urban areas, and authors such as Henry David Thoreau and John Muir writing about nature’s force in Walden Pond and The Mountains of California, respectively. Even the political class found its environmental calling with Theodore Roosevelt advocating the first national parks, even if a motive was to indulge his hobby of big game hunting. See the Antiquities Act of 1906, 16 U.S.C. § 431–433. A few decades later, Franklin Roosevelt’s soil conservation program, among other New Deal efforts, highlighted the value of safeguarding the environment as a social and economic treasure. In 1962, Rachel Carson prodded the environmental conscience of the post–World War II middle class with her Pulitzer Prize winning book, Silent Spring. The populace joined political leaders and literary stars in championing environmental causes with the first mass recognition of Earth Day on May 22, 1970.

The environmental scene in national politics in the 1970s was highlighted by Richard Nixon’s administration as he signed significant revisions in 1970 to the nascent Clean Air Act of 1963 and in 1972 to the Clean Water Act of 1948. The salient part of these laws, for the purpose of this article, is that the minimum quality requirements of both federal laws could be exceeded by the individual states’ own environmental statutes.

National versus state legislation. The belief in the national government’s supremacy in environmental issues is based on constitutional interstate commerce powers and health and safety mandates. However, the states became keenly aware of their responsibilities as their citizenry lived, fished, worked, and farmed along small creeks, rivers, and lakes that depended on potable water. Very recently, a pollution abatement effort was at the forefront when lead leached from pipes in Flint, Michigan, and other municipalities with centralized water supply. Accordingly, as the federal government is confronted with calls for “deconstruction” and de-staffing the U.S. Environmental Protection Agency, states’ environmental regulations along with monitoring and enforcement forces may become even more important to maintain this country’s water quality and air quality. See 33 U.S.C. § 1251 (b) & (g) and 42 U.S.C. § 7401, respectively. This conclusion is based on the language of the federal Clean Water Act and Clean Air Act, where the federal government invited the states to have a role in setting their own air quality and water quality standards that may exceed federal parameters.

What is “quality”? Environmental statutes and regulations include myriad details, such as the location and calibration of air quality and water quality sampling hardware and frequency of sampling. However, it is the endpoint of quality—how polluted or how pristine—that is of utmost importance. Regarding air quality, the Clean Air Act identifies the following parameters: (1) nitrogen dioxide, (2) ozone, (3) sulfur oxide, (4) particulate matter, (5) carbon monoxide, and (6) lead. See 42 U.S.C. § 7409 & 40 C.F.R. Part 61. Water quality standards, on the other hand, tend to be tied to the use or origin of the water and can differ depending on whether the water is to be used for drinking, recreation, fishing, or injection into wells and whether the water is a point discharge (a pipe) from an industrial facility or general runoff from a farm field. Depending on the use or origin, the following quality parameters (not an exhaustive list) may be chosen: (1) acidity/caustic property (pH); (2) dissolved oxygen; (3) biochemical oxygen demand; (4) turbidity, developing parameters; (5) total maximum daily loads (TMDL) of phosphorus; (6) TMDL of nitrogen; (7) tailored analysis of the water quality being able to sustain designated uses such as allowing a species of fish to survive; and (8) analysis to determine whether the water quality is being sustained over time to prevent degradation, salinity, hardness, and over 50 organic and inorganic chemicals ranging from well-known ones such as cyanide and others such as inorganic salts of elements such as selenium. See 40 C.F.R. Part 122.

The following table identifies which states have statutes limiting the state’s air quality and water quality standards to be “only as stringent as the federal guidelines define,” and which have statutes allowing the state’s air quality or water quality standards to be “more stringent than the federal guidelines” as needed to maintain the citizens’ health and other goals. The table also identifies which states have not taken either approach.

 

Summary of State Approaches to Air and Water Quality

No statutory comment concerning water quality

AL, AK, AR, CA, CT, DE, DC, GA, IL, IN, LA, MD, MA, MI, MN, MS, NV, NH, NJ, NM, NY, NC, OH, OK, OR, PA, RI, SC, VT, WY

No statutory comment concerning air quality

AL, AK, AR, CT, DE, DC, HI, ID, IN, IA, LA, ME, MD, MA, MN, MS, NE, NV, NH, NJ, NC, OR, SC, TN, TX, UT, VT, VA, WA, WV, WI, WY

Statute provides for water quality “no more stringent than” federal law

HI (limited to ocean vessels), KY (limited to drinking water), MO (limited to mining), NE, SD (limited to drinking water), TX, WV (limited to surface mining), WI (limited to storm water)

Statute provides for air quality “no more stringent than” federal law

AZ, GA (limited to motor vehicles), IL, KY, MO, NM, OH, RI (limited to motor vehicles), SD

State may require water quality more stringent than federal standard

AZ, CO, FL, ID (limited to shallow injection wells), IA, KS (limited to swine facilities), ME, MT, ND, TN, UT, VA

State may require air quality more stringent than federal standard

CA (limited to nonvehicles), CO, FL, KS, MI, MT, NY, ND, OK, PA

Of the 50 states and the District of Columbia, 17 states have existing statutory authority to legislate air quality parameters and water quality parameters, or both, that exceed federal limits. Most of the states that have enacted laws addressing air and water quality standards that may be either as stringent as or more stringent than the federal limits did so in the late 1970s and the 1980s, with amendments in the 1990s and first decade of the twenty-first century. However, in the past few years, two states have enacted relevant statutes, one on each side of the spectrum. Missouri, in 2014, enacted an environmental protection statute stating that its air-quality limits will be no more stringent than the federal limits. Mo. Rev. Stat. § 643.640. North Dakota’s law providing that air and water quality limits may be more stringent than the federal limits became effective April 7, 2017. See N.D. Cent. Code § 23.1–01–04.

 

Also, 40 states and the District of Columbia have at least one area (either air or water) where their current statutes do not address whether the quality standards must either “just meet the federal guidelines” or “may exceed the federal guidelines.” Thus, there is an opportunity to create or amend the statutes and regulations in additional jurisdictions to provide that air quality and water quality standards may exceed the federal guidelines. Obtaining statutory authorization to exceed federal air and water quality guidelines on a state-by-state basis provides a path toward creating a backstop if the federal government cedes its existing regulatory in these areas. This could make the nation’s air quality and water quality less dependent upon which presidential administration occupies the White House.

Thomas B. Salzer

Mr. Salzer is an attorney in Washington Crossing, Pennsylvania. He holds two engineering degrees, including one in water resource engineering and policy. He may be reached at tomsalzer@verizon.net.