Policy Devolution and Environmental Law: Exploring the Transition to Sustainable Development

POLICY DEVOLUTION AND ENVIRONMENTAL LAW: EXPLORING THE TRANSITION TO SUSTAINABLE DEVELOPMENT Gary C. Bryner* I. INTRODUCTION Advocates of a strong national role in the administration of environmental policies have long argued that federal agencies must play a major role in ensuring federal policies are implemented. In contrast, advocates of policy devolution in environmental and other areas urge federal policy makers to give much more authority and autonomy to state officials. But this debate has not had a major impact on environmental policy. Despite the promises of the Republican Congress in 1995 to return power to states and to the people, little devolution has occurred. One way to at- tempt to respond to these two competing theories of how to structure policy making is to try and sort out, environmental statute-by-statute and program-by-program, what functions can best be performed by federal agencies, and what can best be done at the state level. I argue that while such a sorting out of functions can be of some value, it is more useful to think about how to foster the transition from traditional environmental law to the idea of sustainable development. The paper begins with a review of the debate over federalism. It then turns to a discussion of definitions of sustainable development, arguments for sustainable development as the conceptual and theoretical basis for environmental policy making, and implications for the structure of environmental policy on local, state, and federal governmental bodies and the ecological and political importance of policy devolution. II. THE ENVIRONMENTAL FEDERALISM DEBATE U.S. environmental law is built on a complex system of shared authority and cooperative agreements between the federal government and the states, largely in response to the complexity of environmental programs, the tremendous numbers of sources of pollution to be regulated, the desire to permit some tailoring of regulation to local conditions, and the inherent authority of states to regulate environmental conditions. * Professor, Department of Political Science, Brigham Young University, and Re- search Associate, Natural Resources Law Center, University of Colorado School of Law. Environs [Vol. 26:1 The federal government's primary function is to establish policy, to de- velop national standards, to ensure that states enforce the laws and regulations in a way consonant with national standards, and provide some funding of compliance costs. Most federal environmental statutes au- thorize states to issue permits and to enforce regulations if their programs and standards are approved by the EPA. States have the primary responsibility to grant permits, to inspect facilities, and to initiate enforcement actions against violators. Under most environmental laws, federal programs preempt state regulatory efforts, then states may be given back authority to operate federally-approved programs. Some environmental laws give authority to states to implement regulatory programs, and impose sanctions if they fail to do so. Another approach is to create a voluntary program and offer states financial incentives to partici- pate in them. Environmental laws may include multiple approaches, and the structure of environmental regulation is complex. The formal division of labor, and the actual working relationships between federal and state officials play a critical role in shaping environmental policy.1 The federal-state division of responsibility reflected in most environmental laws and programs is based on at least three major arguments rooted in American federalism and in the peculiar nature of environmental policy. First, advocates of federal regulation argued that state efforts were insufficient or nonexistent, and a strong federal role was required. State legislatures have been so closely identified with extractive and pol- luting industries, and the influence of these economic interests have been so great in state governments, that a strong federal role in environmental policy making has been promoted and defended as essential in coun- tering the power of economic interests. Most environmental advocates have been skeptical of state governments, and have believed that federal laws and agencies are indispensable in protecting natural resources and checking pollution. Federal agencies are believed to be insulated enough from resource-depleting communities to ensure preservationist values are pursued. When agencies fail to protect resources or-reduce pollution, the solution is to replace them with more ambitious regulators and to strengthen the regulatory authority of federal officials A number of studies have compared states according to their commitment to environmental protection and found significant variation in expenditures, legal authority, methodologies to determine environmental quality, reporting 1 DENISE SCHEBERLE, FEDERALISM AND ENVIRONMENTAL POLICY 13-14 (1997). 2 Donald Snow, Introduction, in THE NEXT WEST 1, 5-6 (John A. Baden & Don- ald Snow eds., 1997). Fall 2002] Policy Devolution & Sustainable Development 3 requirements, enforcement actions, and in the environmental standards they are authorized to set under federal law.' Second, since pollution often crosses state boundaries, national policy making efforts are required. State officials will be unwilling to impose restrictions on sources that produce pollution for neighboring states. They may be so anxious to attract new industries to their states that there will inevitably be a "race to the bottom" that will provide little protection to residents of some states from environmental risks.' This competition to attract industries has become a major concern of states, but it may create incentives to ignore or suppress environmental goals and can only be prevented, advocates argue, by nationwide standards.' For others, breathing clean air and drinking clean water ought to be understood as national rights, guaranteed to all citizens, regardless of where they live. Giving states authority to implement and enforce regulations permits some tailoring of regulatory programs to local conditions while ensuring that national standards are achieved. States may be unwilling to devise solutions to problems that cross state boundaries since costs are borne by some states while the benefits accrue to others. They may be tempted to export their environmental problems to others, rather than placing regulatory restrictions on local industries. Or they may establish such high standards for receiving environmental contaminants that they are shipped elsewhere, allowing state officials to claim environmental protection credentials by simply exporting problems.6 A third rationale for a strong federal environmental policy making role is the need for expertise and the economies of scale from centraliz- ing research and analytic efforts. Having 50 separate state agencies con- ducting research on the environmental and health effects of various pollutants and formulating regulatory strategies is inefficient and dupli- cative. EPA's role as overseer of states permits it to share information with states about others' successes and failures and accumulate knowl- edge about what policies are most promising, while allowing for some policy experimentation among states. The EPA and other policy makers, as well as scholars, have argued that this kind of partnership ensures an optimal use of national resources.7 3 Barry G. Rabe, Power to the States: The Promise and Pitfalls of Decentraliza- tion, in ENVIRONMENTAL POLICY IN THE 1990s 31, 31-52 (Norman Vig & Michael Kraft eds., 1998). 4 David Schoenbrod, Why States, Not EPA, Should Set Pollution Standards, 4 REGULATION 18 (1996). 5 WILLIAM R. LOWRY, THE DIMENSIONS OF FEDERALISM: STATE GOVERNMENTS AND POLLUTION CONTROL POLICIES (1992). 6 Rabe, supra note 3, at 44-45. 7 SCHEBERLE, supra note 1, at 12-15. Environs [Vol. 26:1 This system of environmental federalism has been widely criticized in the United States for being too expensive, too intrusive, too cumbersome and bureaucratic, as well as ineffective and unable to improve environmental quality in many areas. Advocates of devolution of environmental policy to states, in particular, typically argue that the cur- rent structure is cumbersome and inefficient, accountability is muddled, environmental goals are not achieved in a timely manner, and that it pro- hibits the kind of legal and political innovations needed to make environmental regulation more effective. One of the most important challenges to the prevailing model of environmental law and regulation comes from theories of federalism and the increasing interest, prompted by Republi- can efforts in the 1970s and 1980s and embraced more broadly in the 1990s by some Democrats, to devolve more policy making power to states. Devolution theory calls for increased policy authority and discre- tion to be delegated to state governments in order to improve the effi- ciency of public policies, ensure they effectively resolve specific problems, and foster political accountability. Devolution may also go be- yond states to give different communities the opportunity to strike their own balance among the competing policy objectives such as economic growth and reducing environmental risks. Devolution is also championed as a way to engage the public in problem solving and gain their commitment to making changes in behavior. Devolution has been a major theme of welfare and other social policies,8 and is also championed as a

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