EPA Conspicuously Absent at ECOS Spring Meeting

By Mark Anderson, Senior Vice President

The Environmental Council of the States (ECOS) convened its Spring Meeting last week in Austin, Texas.  I would sum up the theme of the meeting by quoting the first lunch speaker, Executive Director of the Texas Commission on Environmental Quality Mark Vickery, stating that the relationship between EPA and the states requires “complete reformation.”  Two trends conspired to make this so—dissatisfaction with EPA over increasing mandates and policy changes with little state input, and the dramatic decline in EPA participation with ECOS.  The second-day lunch keynote speech, always reserved for the EPA Administrator or an appropriate high-level designee, was absent a speaker. 

Throughout the three-day meeting, issue after issue was raised by ECOS members about states not having the resources to carry out many EPA directives.  Yet there was not sufficient high-level EPA involvement in the meeting to have a meaningful dialogue about it.  A state and federal co-regulator relationship that should be built on trust and cooperation has clearly deteriorated. 

The problem was apparent not only in the rhetoric, but also in the specific policy discussions undertaken during the meeting.  At the opening plenary, Pennsylvania Department of Environmental Protection Secretary Michael Krancer brought up his support for HR 3867, the “Sunshine for Regulatory Decrees and Settlements Act of 2012.”  This legislation addresses the concern of the states that EPA, with increasing frequency, will settle lawsuits by organizations by agreeing to initiate rulemakings behind closed doors.  As such, by the time states are allowed to comment on the subsequent rulemaking, EPA responds by claiming that they are bound by the lawsuit.  The legislation would require EPA to allow comments by affected parties prior to agreeing to settlements.

Another more heated example of this lack of communication was a discussion over new air monitoring requirements.  Wisconsin Department of Natural Resources Secretary Cathy Stepp spoke about the lack of clarity with EPA’s requirements.  Many states chimed into the discussion both about the lack of adequate guidance from EPA in the face of substantial new requirements and the importance of good modeling.  Again, the focus of the discussion was not on whether modeling is important, but the fact that EPA mandates policy changes for the states and then provides little communication or support about how to achieve them.

Which brings me to what I think is the most significant event during this meeting—passage of the resolution, “Challenges of Achieving Significant Greenhouse Gas (GHG) Emissions Reductions.”  The resolution discusses the challenges that face the states in meeting the US-ratified United Nations Framework Convention on Climate Change GHG emissions reduction mandate.  The mandate calls for an 80 percent reduction in GHG emissions from 1990 levels by 2050—a massive undertaking by any metric.   The resolution calls on EPA to provide scenarios in which states could achieve these reductions and provide a study of the costs and benefits of doing so.  As I discussed in an earlier blog, true discussion amongst the states about the costs associated with complying with climate change requirements had been unprecedented.  The resolution passed unanimously. 

States discussing challenges posed by EPA has been a mainstay at ECOS meetings.  The difference at this meeting was the level of frustration, and the lack of significant participation by EPA officials to listen and respond.  This is particularly troublesome for the states during times of great budget strain at both the state and federal level, and it represents one of the most fundamental hurdles in the EPA-state relationship.

As a result, “you should contact your federal delegation,” was a suggestion offered by ECOS members to their peers far more frequently at this meeting than I have ever witnessed.  EPA is no longer engaging meaningfully with the states and is forcing states to look elsewhere for guidance and support.

All good relationships require trust.  When dealing with any state and local officials group, I always advise my clients to participate consistently and respect the organization and its members through open and honest communication.  EPA has violated these principles and the relationship is suffering as a result.

EPA AND THE STATES: Can’t We All Just get along?

When “Getting Along with your EPA Regional Official” is a session topic for new state environmental commissioners, you know there is a problem.  On March 28, state environmental commissioners will convene in Alexandria, Virginia for the Environmental Council of the States (ECOS) Spring Meeting.   The meeting, which is always robust in policy discussions and best practices sharing, also provides an opportunity for the states to meet with both headquarter EPA officials and their regional EPA Administrators.  In fact, ECOS has assumed some responsibility for ensuring a collaborative relationship between the states and EPA.  As a prelude to the meeting, ECOS is holding a half-day closed meeting for new environmental commissioners, which includes the session mentioned above.

It hasn’t always been this way.  Over the past several years, EPA/state interaction at the ECOS meetings has been a rather tame affair.  While public disagreements over state authority and over-reaching EPA rulemakings were the hallmark of early ECOS meetings, this animosity has given way to a much more positive relationship at those meetings in recent years.

I think the mood at this meeting will be different.

In January, 28 new governors took office.  Most came into office with pledges to cut state spending, balance state budgets and create jobs.  Early on, some of these new (and two sitting) governors acted on these pledges with regard to state agencies.  Six Governors–in Arizona, Florida, Maine, Nevada, New Mexico and Washington– believed unduly burdensome regulations were such a detriment to economic growth that they imposed moratoriums on rulemakings and ordered reviews of existing regulations. 

So how might this focus on jobs and the economy play out among the environmental commissioners at the ECOS meeting?  The agenda itself gives a solid indication. 

The Monday lunch speaker is EPA Administrator Lisa Jackson, who undoubtedly will talk about her partnership with the states (having been an ECOS member as the Commissioner of New Jersey DEP).  With commissioners from many of those states with newly elected governors, Administrator Jackson could be in for some pointed questions.  In sharp contrast, the Tuesday lunch speaker is Virginia Attorney General Ken Cuccinelli who will discuss EPA over-reaching its authority, including what is being called the “Train Wreck” regulations such as the EPA regulation of greenhouse gases.  The two speakers couldn’t have more divergent views on EPA’s activities.

Of course there is some political motivation behind the “Train Wreck” issue; but not all of the disagreements are partisan.  For example, the states, almost in lock-step, have opposed the direction EPA is taking with the coal-ash rulemaking.   The states believe that it is unnecessary and will overwhelm dwindling state resources.  This item is the main topic of discussion during the Waste Committee meeting, and is certain to be contentious.

Despite policy differences, there are  environmental commissioners who have concluded that a better partnership and working relationship between EPA and the states is beneficial for the states (or at least their state) in the long run.    ECOS’ “how to get along” session is an attempt to foster that sentiment. 

But, the dire state of the economy and budgets in most states may force ECOS to be the venue for states to stand up to EPA rather than standing down.

~Mark Anderson

EPA and the States: Is The Honeymoon Already Over?

The nation’s state environmental agency commissioners gathered this week for the 15th Annual meeting of the Environmental Council of the States (ECOS).  Coming into the meeting that was held in Whitefish, Montana (just outside of Glacier National Park) you would think that the states were optimistic for the renewed partnership between the states and EPA.   

Lisa Jackson was appointed EPA Administrator last March and within weeks of her appointment, she addressed the ECOS members during their Spring Meeting with talk of partnership between the states and EPA.  As a former ECOS member, Jackson assured ECOS members that things were going to be different.  After all, she was appointed to the position from her post as Commissioner of New Jersey Department of Environmental Protection.  She was one of them, and she respected state’s rights and was optimistic about the ability of EPA and the states to work together to make smart environmental policy.

Jackson caught up with all of her former colleagues at that Spring Meeting, and it was quite clear to everyone that this new EPA Administrator was a friend of the states.  Texas and Florida rejoined ECOS after having their membership lapse for a number of years.  Coming out of that Spring Meeting, it was a good time to be a state environmental commissioner.

But that sense of partnership coming out of the Spring Meeting appears to have vanished here in Whitefish.  Several weeks ago EPA’s Office of Environmental Compliance Assurance (OECA) sent letters to the states outlining their priorities.  While not uncommon for EPA to indicate enforcement priorities to states generally, this time OECA outlined specific priorities for each state…sort of like “marching orders” for the states to manage the enforcement of their environmental laws.  This correspondence was not well received.

While the ECOS members chose not to publicly air their grievances and general disinterest in having EPA tell them how to run their own programs, this was discussed in a closed session.  To make matters worse, Administrator Jackson cancelled her appearance at the meeting.  And contrary to normal etiquette at ECOS, the new EPA Administrator failed to provide an alternative lunch speaker, who would have profusely apologized for the Administrator’s absence and assure the ECOS members that this EPA was committed to this relationship.

What is clear coming out of this meeting is that this EPA under Lisa Jackson is an aggressive one.  It is an EPA with a big agenda with little time for partnership building to get in the way of moving forward with bold changes in environmental regulation.  It certainly appears that the honeymoon is over, and states with dwindling budgets could be in for a very long–and expensive–Administration.

Mark Anderson