November 01, 2017

Views from the Chair--Cooperative federalism: What is it—now and in the future?

John Milner

One of the most prominent phrases in environmental law today is “cooperative federalism.”   What does it mean? The Environmental Council of the States (ECOS), a national association that represents state environmental agencies, has recently focused on cooperative federalism, describing it as “[a] vision recasting state and federal roles for environmental management and public health protection at lower costs.” According to ECOS, cooperative federalism would result in the following positive changes:

  1. Equal or greater environmental and public health protection and outcomes through smart deployment of resources on critical priorities;
  2. Reduced operating costs due to a more efficient division of services, streamlined operating relationships, best practices sharing, and elimination of redundancies across states and divisions of EPA;
  3. More effective allocation of limited resources by determining the best roles and functions states and EPA are each best suited to perform; and
  4. With time, fewer disputes over who should take credit for successes and achievements, and who is responsible for decisions and actions that result in setbacks.

In June of this year, ECOS published a paper that provides a more in-depth explanation of its views: “Cooperative Federalism 2.0: Achieving and Maintaining a Clean Environment and Protecting Public Health.” The U.S. EPA, in its August 2017 “Draft FY 2018–2022 EPA Strategic Plan,” references this ECOS paper to point out that “states have assumed more than 96 percent of the delegable authorities under federal law” due to delegation authority agreements, while fully acknowledging that there are non-delegable programs and trust responsibilities for environmental protection in Native American areas for which it retains primacy. Consequently, an underlying theme of the EPA’s strategic plan’s perspective on cooperative federalism is “to reduce duplication of effort with authorized states and tailor its oversight of delegated programs.”

Due to its prominence, cooperative federalism was addressed at the 25th Section Fall Conference in Baltimore, as well as other important national issues, in the plenary session “News from Inside the Beltway: Administration and Congressional Priorities for Environmental, Energy, and Resources Law and Policy.” The moderator of this important panel was ECOS’s executive director, Alexandra Dunn, a former Section chair. Another panelist was Susan Bodine, senior advisor at U.S. EPA, who is also the administration’s nominee for assistant administrator of EPA’s Office of Enforcement and Compliance Assurance. Bodine’s nomination was approved by the Senate Environment and Public Works Committee (Committee) on July 12, 2017, and she currently awaits full Senate consideration. It is notable that Bodine agreed with (and quoted) ECOS’s projected results of cooperative federalism described above in her June 13 testimony before the Committee. (See transcript of Bodine’s June 13 Committee hearing answers to “Questions for the Record,” at pp. 3, 5.) Joining Dunn and Bodine on the panel were Kevin Minoli, acting general counsel of U.S. EPA, and Tina Richards, Counsel, Committee on Energy & Commerce, United States House of Representatives. I hope that you were in Baltimore to hear this important panel discussion. For those who attended, materials provided by the panelists are available on the Section website.

Cooperative federalism is also a key focus for our Section beyond the Fall Conference. It has been designated as the initial “Section-wide” content topic to be addressed under the Section's “content convergence” initiative. Through the content convergence process, committees will coordinate to explore the many facets of this important cutting-edge issue through webinars, newsletter articles, and other “deliverables.” Certainly, there will be questions and concerns raised about the meaning and implementation of cooperative federalism. The Section is committed to informing its members about the full diversity of perspectives on this issue as it evolves.

I have reserved the closing of this article for a heartfelt request that our Section members reach out to those who have been affected by the recent severe weather events, particularly in Texas, Florida, the Caribbean islands, and Mexico. We should not assume that, since these weather events are over, those affected no longer need help. In fact, this is the time that they most need our help. The Section’s website provides an up-to-date “Severe Weather and Environmental Responses” webpage to address assessment of a major weather catastrophe, evaluation of cleanup and insurance options, and long-term resilience strategies for the future. Let’s do all that we can to help!

John Milner

John Milner is the Section of Environment, Energy, and Resources’ 91st chair. A long-time Section member, Milner has previously served as publications officer, Council member, chair of the Special Committee on Section, Division and Forum Coordination, and chair of the Water Quality and Wetlands Committee. He is a partner in Brunini, Grantham, Grower & Hewes PLLC in Jackson, Mississippi.