Cooperative Federalism – 1; State Defendants in the Flint Water Crisis – 0

Posted on September 26, 2017 by Jeffrey Haynes

In a case of first impression, a divided Sixth Circuit held that the state agency defendants in the Flint water crisis cannot remove state-law tort claims against them under the federal officer removal statute.  Mays v. City of Flint, No. 16-2484 (Sixth Cir., Sept.11, 2017).  The ruling affirmed a remand to the Genesee County Circuit Court, where, the court acknowledged—emphasizing the obvious—the Michigan Department of Environmental Quality staffers are likely to be “unpopular figures.”

Residents of Flint sued, among others, several present and former MDEQ staff members for gross negligence, fraud, assault and battery, and intentional infliction of emotional distress, based upon MDEQ’s failure to control corrosion of aging water pipes, which caused lead to leach into Flint’s water supply.  The MDEQ defendants removed the action under the federal officer removal statute, 42 U.S.C. §1442(a)(1), which allows “any officer (or person acting under that officer) of the United States” to remove a state-law action to federal court.  The purpose of the statute is to insulate federal officers from local bias against unpopular federal laws.  Examples of customs agents in the War of 1812, revenue agents during Prohibition, and border agents come to mind.  The MDEQ defendants argued they were enforcing the Safe Drinking Water Act for USEPA, and therefore were acting under federal officers.

The court held that the MDEQ was enforcing Michigan law under a delegation of federal authority voluntarily accepted by the state.  The state officers were not contractors, employees, or agents of federal officers.  The cooperative federalism of the SDWA was more like a partnership than a principal-agent relationship.  EPA oversight, reporting requirements, and federal funding were not enough to bring the MDEQ defendants within the removal statute.  The dissent believed, on the other hand, that the state agency defendants’ removal petition satisfied their burden of demonstrating that their actions brought them under the statute’s protection. 

The court kept the floodgates closed.  It noted that many other environmental statutes come within the cooperative federalism model, and that allowing removal would cause garden-variety state-law tort claims against state officers for enforcing state law to be litigated in federal courts.

So, states’ rights advocates, take heart.  Even though your state enforces federal environmental standards with federal funds and oversight, you are on your own.  Regardless of citizen anger with the distant federal government, your state officials can still be tried by local jurors angry with your state government.

Refining the Relationship Not Retrenchment – Cooperative Federalism 2.0

Posted on August 23, 2017 by Robert J. Martineau Jr.

The cooperative federalism approach to environmental protection in this country has been a fundamental tenet of our federal environmental laws since the early 1970’s.   In short, Congress passed laws, EPA wrote the regulations, and States sought delegation of those programs and implemented and enforced them.  When those state programs were in their infancy EPA tended to have a strong oversight role and states often looked to EPA for technical support and guidance.    EPA often limited the discretion of states in implementing those federal programs.    As states programs matured, states developed their own expertise and often identified new and innovative ways to implement federal requirements and achieve desired outcomes.   States are now authorized to implement over 90 percent of the federal programs and also take lead on most enforcement matters.    Over time the federal state relations has slowly morphed from a parent –child relationship to one of an old married couple.  A decade or so ago, EPA officials might have bristled at the notion of a coequal partnership, but no longer.

States are looking to continue to refine that relationship to help improve environmental outcomes in an efficient and cost effective way to help ensure we put limited resources to work in the most productive way.     In June, the Environmental Council of the States (ECOS) issued a white paper entitled “Cooperative Federalism 2.0: Achieving and Maintaining a Clean Environment and Protecting Public Health”.  Its purpose was to highlight an ongoing discussion of the relationship of federal/state environmental regulators.  The paper is intended “to stimulate and advance” an important discussion of how “a recalibration of state and federal roles can lead to more effective environmental management at lower cost.”

This document has certainly fulfilled its intended purpose.  Since the issuance of the paper, there has been extensive discussion by and between state and federal regulators, NGOs, industry groups, legislators and others on this topic.  ECOS’ paper has served as the framework and focal point for that discussion.

ECOS’ paper sets forth nine principles on the roles and functions of EPA and the States under Cooperative Federalism in this modern era of the environmental protection enterprise.  The paper sets out ECOS’ members’ views on what cooperative federalism should mean in the areas of: 

1.      Regulation development and setting national minimum standards to protect human health and the environment;

2.      Implementing  national regulatory programs;

3.      Allowing flexibility in meeting those standards;

4.      Engagement of other stakeholders in those implementation efforts;

5.      Enforcement;

6.      Oversight by EPA of states implementation efforts;

7.      Interstate and regional environmental  issues;

8.      Scientific research and data gathering; and

9.      Funding for federal and state programs.

The paper recognizes the many challenges of refining this relationship but the interest in and around this topic has fostered much thoughtful discussion and debate.  ECOS’ recent STEP Conference in Washington, D.C. was devoted to this topic and more than 150 state and EPA regulators as well as NGOs, industry groups and academics shared their thoughts and ideas.  The Environmental Law Institute also addressed this topic in an inaugural “Macbeth Dialogues” (named after the late Angus Macbeth, a longtime ACOEL member) in a “Chatham House” format.  Discussion leaders included those from state agencies, former EPA staff, NGOs and academics.    In addition, EPA senior staff and states agency officials have addressed how to refine the relationship in meetings at EPA Headquarters and several regional offices.

Some have explicitly suggested or inferred that this “Cooperative Federalism 2.0” discussion is a ruse for less environmental protection, or relaxing of standards.  Certainly for ECOS’ members, that is not the case.  Cooperative federalism does not equal deregulation or weakening environmental protection.     While there may be separate conversations ongoing about the veracity of the effectiveness of certain rules,  that is not what Cooperative Federalism 2.0 is about.  It is about defining the respective roles and accomplishing the mission of protection of public health and the environment in a cost effective way that respects the different roles of the federal and state partners.  As the ECOS’ paper notes in its conclusion, the ECOS member States “strongly believe that positive reforms and improvements to the bedrock of cooperative federalism are needed … to create and implement environmental protection programs worthy of 21st century challenges.  States are eager to engage our federal partners, and others who have a keen interest in how the states and federal governments perform their roles, on how we can move forward consistent with these principles, in order to protect the environment and public health”.  

Seventeen States Join a New Association of Air Pollution Control Agencies

Posted on February 13, 2013 by Robert Brubaker

The current Clean Air Act retains the premise in the Clean Air Act of 1963 that "the prevention and control of air pollution at its source is the primary responsibility of States and local governments."  Among the many balancing acts embedded in the text of the Clean Air Act, the balance between federal and State prerogatives is one of the more challenging. 

Over time, the accumulation of requirements, and the multiplication of more requirements at a faster and faster pace, puts strains on the Clean Air Act's ideal of "cooperative federalism."  In the present era of divided government and increasing political polarization, tensions between EPA and the States, and between certain States, are on the rise.  For example, EPA has been sued by some States to force more aggressive regulation of greenhouse gas emissions, and by other States to force less aggressive regulation of criteria pollutants that cross State boundaries.  The "turbulence inherent in [the Clean Air Act's] divided relationship" was noted in William Session's December 14, 2012 post

While sharp contrasts on energy policy get most of the publicity, it is the small things – the finer details of regulation of sources classified as "minor" or "insignificant" under the statute and regulations – that account for a disproportionate share of the friction with regard to federal versus State prerogatives.  Tensions over State discretion – particularly with regard to environmentally inconsequential mandates, land  use, and small businesses – are not new to the Clean Air Act.  Soon after her transition from head of the Florida Department of Environmental Regulation to Administrator of EPA twenty years ago, Carol Browner said:

When I worked at the state level, I was constantly faced with rigid rules that made doing something 100 times more difficult and expensive than it needed to be.  It makes no sense to have a program that raises costs while doing nothing to reduce environmental threats. 

A new Association of Air Pollution Control Agencies, launched in January 2013, holds promise for enhancing the State-federal partnership basic to the design of the Clean Air Act.  The primary goals of the new association are to help the States assist each other in carrying out their responsibilities under the Clean Air Act, and to better understand EPA requirements as they evolve.

The AAPCA selected Battelle Memorial Institute, the world's largest non-profit research and development organization, to provide technical assistance and organization and staffing support.  The initial seventeen participants in the AAPCA are:  Alabama, Florida, Indiana, Kentucky, Louisiana, Mississippi, Nebraska, New Mexico, Nevada, North Dakota, Ohio, Pennsylvania, Tennessee, Texas, Virginia, West Virginia, and Wyoming.  If the new AAPCA improves the technical proficiency of State air pollution control agencies, and increases the level of cooperation and collaboration between EPA and State air agencies, it will well serve the design of Congress and the interests of the nation.