Mr. Chairman, Members of the Committee, my name is Robert Kuehn and I am a professor at Tulane Law School in New Orleans, Louisiana, where I teach classes in environmental enforcement, environmental advocacy, and solid and hazardous waste regulation. I appreciate the opportunity to testify before this Committee on the important, and always controversial, topic of the relationship of federal and state governments in the implementation of federal environmental laws.
I would like to discuss today the results of some research that I published last year on the devolution of enforcement of federal environmental laws from federal agencies to the states ("The Limits of Devolving Enforcement of Federal Environmental Laws", 70 Tulane Law Review 2373 (1996)).
Before discussing the specifics of what I found, it is important to keep in mind that issues of federalism are not new to environmental policy debates. Until the 1970s, Congress had determined that the federal government should play a supporting role in the regulation of pollution by providing grants and technical assistance to the States. The 1970s then witnessed a rising national concern over the environment and a surge of legislation giving the federal government the primary, and in some areas exclusive, authority over the protection of public health and the environment. While President Reagan's "New Federalism" policies of the early 1980s reversed the trend of centralization and returned some powers to the States, the federal government continued to establish the standards of environmental protection and had the authority and resources to dictate, in large measure, the activities of the States, including their enforcement operations. Recent federal legislation on pollution control, the 1990 amendments to the Clean Air Act and the Pollution Prosecution Act of 1990, signaled another expansion of federal enforcement power.
While the pendulum swing of federalism is not new, what is new about the most recent controversy is how widespread the sentiment is for devolving environmental enforcement powers from the federal government to the States and how dramatically some of the current proposals would reduce the federal role. Not only are there calls for less oversight of state enforcement activities, but some now advocate that federal environmental agencies be prohibited from taking any enforcement action in states with federally-approved environmental programs.
Unfortunately, as with past efforts to decentralize environmental protection, there has been little serious discussion, much less agreement, regarding the criteria by which to judge the suitability of devolving enforcement.
My research reviewed the original arguments for and against federal enforcement of environmental laws to determine if these justifications for federal enforcement are still supportable. As I set forth more fully below, I found that while some of the original arguments for federal enforcement (such as lack of adequate state enforcement commitment and resources) may find less support today, there are still a number of compelling justifications for a meaningful federal role in enforcement, even where states have been authorized to implement federal programs.
Believing that the issue of the proper mix of federal and state enforcement of federal environmental laws out to be based on pragmatic policy grounds, I also sought to develop and apply some non-ideological criteria for determining the appropriate level of federal involvement in enforcement. Using the criteria of effectiveness, efficiency and equity, I compared federally-run enforcement programs with state-run programs. I was surprised to find how little empirical data was available on the suitability, under these three criteria, of federal versus state enforcement. Based on the limited data that I could find, I concluded that public policy criteria did not support a dramatic reduction in federal enforcement.
I have set forth more fully below my analysis and conclusions.
II. RATIONALE FOR FEDERAL ENFORCEMENT
Some federal enforcement of national pollution control laws is still justified on a number of grounds, even twenty years after the enactment of most federal statutes. An obvious justification is that states are, and always will be, particularly ill equipped to address the interstate effects of pollution. As pollution knows no political boundaries, a pollution source's noncompliance could impose significant adverse impacts, or what has been termed "spillover effects," on another jurisdiction. Where the local jurisdiction enjoys significant benefits from the source's activities yet bears little or none of the harm, that governmental entity may have little incentive to enforce pollution laws against the source. A federal role in ensuring appropriate compliance by sources that may have impacts in other states is therefore essential, particularly since previous attempts to address interstate effects of pollution through regional compacts proved unsuccessful.
The growing importance of international environmental agreements further creates an indisputable and growing need for federal enforcement. If a treaty provides for a right of the United States to enforce certain pollution standards against a source in another country or if the United States has entered into an international agreement to ensure enforcement of its own laws, individual states are in no position to uphold such obligations. Indeed, without a significant, continuing federal presence in environmental enforcement, the ability of the United States to represent that its pollution standards will be enforced is debatable.
It is realistic to expect that some state environmental agencies may not vigorously enforce environmental standards against other state agencies or the state's political subdivisions. State and local governments operate numerous sources of pollution, such as landfills and sewage treatment plants, and, through their ownership and operation of buildings and equipment, also generate wastes that are subject to regulation. In the 1980s, EPA launched a municipal treatment enforcement initiative to address widespread noncompliance by publicly-owned sewage treatment facilities and the failure of state environmental agencies to enforce compliance. Because of concerns that EPA was lacking in its enforcement efforts against facilities owned or operated by the federal government, states argued for and received expanded rights to enforce state environmental statutes against federal facilities. The same arguments that support the need for state enforcement against federal facilities favor a federal role in enforcing environmental laws against states and their political subdivisions.
One of the most compelling justifications for federal enforcement is the need to ensure equal enforcement among the States. Without federal environmental laws, including federal enforcement to ensure that national standards are implemented nationwide, states are likely to vary widely in the extent of their regulation of pollution. Some states would weaken their standards or lessen enforcement as a way to induce polluting industries to invest in their states. States that refused to weaken their standards would risk losing economic development activities to the less restrictive states.
Although the theoretical basis of this "race to the bottom" rationale for federal regulation has been questioned, state regulators report that the regulated community repeatedly argues, and even threatens, that relaxed standards are needed to attract new industry or keep companies from moving to other states. In addition, the growing popularity of state laws that prohibit agencies from promulgating regulations more stringent than the counterpart federal rule "provides some evidence that the concern about a race to the bottom' in the absence of federal minimum standards remains valid." Today, states are engaged in what one governor called "cannibalism" in their competition to attract new businesses, wooing them with tax breaks and other taxpayer-financed economic incentives. In the present climate of economic rivalry between states, one would be naive not to believe that, without the specter of federal intervention, some states would purposefully reduce their enforcement efforts as an economic incentive.
Federal enforcement also helps avoid certain market imbalances. Companies that invest in environmental compliance are at a competitive disadvantage if their competitors can avoid those costs because the lax enforcement practices of another jurisdiction overlook some violations of environmental laws. Industries that had invested heavily in environmental compliance were placed at a competitive disadvantage when the regulated community perceived in the early 1980s that the EPA would not enforce environmental laws. Federal enforcement, when aggressively implemented, has the ability to "level the playing field" by initiating enforcement actions, or forcing reluctant state agencies to initiate enforcement actions, in states with weak enforcement practices.
In some enforcement matters, the issue is uniquely federal. For example, United States v. Marine Shale Processors involved the interpretation of EPA's cryptic regulations differentiating between recycling and waste treatment. Because EPA developed the regulation and had the greatest stake in ensuring that its rule was upheld by the court and properly applied nationwide, federal enforcement was fitting.
The centralization of environmental protection was often justified in the 1960s and 1970s by the states' lack of legal capacity, resources, and commitment to effectively enforce pollution control laws. The development of strong federal programs, along with financial assistance to state environmental programs and nationwide standards for authorization of state programs, have helped stimulate the growth of competent state environmental programs. Ironically, the desire to avoid federally-run permitting programs in their states encouraged state legislators to provide the necessary laws and resources to obtain primacy. Once a state obtains authorization, the threatened return of the program to EPA has been used by state agencies to leverage additional funds from state legislators.
Today, most state programs have the necessary resources and commitment to assume most federal enforcement. Yet this enhanced capability is due, in large part, to federal enforcement program technical and financial assistance to states, EPA's prodding of states to take enforcement actions, and the desire of states to avoid a federal takeover of enforcement and other regulatory functions. One state environmental commissioner observed that the publicity and implications regarding the state's inability to handle its responsibilities that would result if EPA were to take over pollution compliance responsibilities is "the greatest incentive for the State to do the job."
The availability of EPA as a backup to state enforcement efforts also enhances the state's effectiveness. State officials overwhelmingly agree that the threat of the EPA enforcement gorilla bringing its own enforcement action strengthens the state's position with polluters. Without a strong federal enforcement program, state programs would undoubtedly suffer.
Even with the notable improvements in the commitment and ability of states to enforce environmental laws, in some cases the resources and political influence of the regulated entity may still overwhelm the state agency. When faced with potential penalties or remediation costs in the millions of dollars or with the potential closure of their businesses, many regulated entitles are able to dedicate legal and technical resources that may overpower the limited enforcement resources of state agencies. For example, a defendant spent $3 million in legal fees fighting a Clean Air Act enforcement action brought by EPA. In fiscal year 1994 alone, the United States Department of Justice dedicated more than 29,000 work hours (the equivalent of fifteen persons working full time for the entire year), and EPA used three employees full time and spent $2 million in litigation support, on a single enforcement action in Louisiana against Marine Shale Processors; the entire Louisiana Department of Environmental Quality legal staff only consists of fifteen lawyers. Budget cuts threaten to reduce further the ability of states to handle enforcement matters, particularly cases with great resource demands.
Political connections may also affect the enforcement activities of state agencies. In Marine Shale Processors, the owner of the company spent $1 million of his own money to defeat the election campaigns of the governor who had sought to shut the company down for violations of hazardous waste laws. In Virginia, the governor accepted a $100,000 campaign contribution from a company under investigation by the state environmental agency and facing millions of dollars in fines for illegally discharging wastes to a tributary of Chesapeake Bay. Even the most capable state environmental agency may find itself unduly influenced or overwhelmed by a well-heeled, politically influential polluter and, therefore, in need of federal enforcement.
A final rationale for federal enforcement is that EPA must be involved in enforcement to ensure that the national pollution control standards it promulgates are enforceable and achievable. "By splitting standard setting and enforcement between two governmental levels, the nation would risk the promulgation and maintenance of unenforceable standards."
III. RATIONALE FOR STATE ENFORCEMENT
The primary philosophical justification for state enforcement of federal environmental laws is the principle of federalism, which, as primarily expressed in the Tenth Amendment, recognizes the limited, enumerated powers of the federal government and the residual powers of the States. In particular, states have pervasive police powers which they were exercising to control pollution long before the federal government entered the field. In enacting federal environmental statutes, Congress respected this historical involvement by acknowledging the primary responsibilities and rights of states in the protection of public health and the environment, including their primary responsibility for enforcement.
Although efforts by EPA to punish states that failed to enforce federal environmental statutes were struck down by the courts, there is little support for the contention that the Constitution compels Congress to grant states the exclusive authority to enforce federal environmental laws. Nevertheless, to those who believe that the federal government has become too pervasive or too powerful, devolution is justified as redressing an imbalance that has developed in the decision-making power between the federal government and the States. Hence, the history of pollution control, respect for principles of federalism, and the structure of most federal environmental statutes dictate that the States play a dominant role in enforcement.
A more practical justification for state enforcement is the claim that decentralized enforcement is more flexible and responsive than enforcement by a centralized agency such as EPA. The provisions in federal statutes allowing a state to attain authorization to enforce the federal program reflect the belief that the level of government closest to the environmental problem should be the primary enforcer, provided it has the capability and will to enforce. But, as outlined above, the capability and will of states to enforce present a problem in most states at one time or another. Thus, to say that states should enforce where they have the capability and will does not eliminate the need for federal enforcement but rather highlights the concerns that justify federal enforcement.
By being closer to the problem, state enforcement agencies, in theory, can obtain better information on the nature of the compliance problem. States have more interaction with the regulated community and are better able to monitor their compliance. It is not surprising, therefore, that ninety percent of environmental inspections are performed by state environmental agencies. EPA simply does not have the resources or physical proximity to monitor and inspect sources in fifty states, and it may be at a particular disadvantage in trying to respond to a situation that requires rapid governmental action.
State enforcement officials also may be more responsive to local needs and conditions than federal officials who do not reside in the area. This could result in more enforcement, if enforcement policies and procedures provide for citizen input and if officials are sensitive to citizen concerns. Conversely, it could give the regulated community greater access to the agency's personnel and more influence over enforcement decisions. At least with the enforcement of hazardous waste site cleanups by state agencies, citizens want expanded federal involvement because they view states as "more readily subject to political pressure from industry."
A greater awareness of local conditions may facilitate more flexible, tailored enforcement programs that take into account local geographic, economic and social conditions and focus on the area's most severe enforcement problems. Thus, rather than all states spending the same proportion of resources on a problem regardless of the local conditions, state officials can focus enforcement programs towards areas that will result in the greatest amount of compliance and environmental protection for the same level of enforcement resources. On the other hand, awareness of local conditions, particularly local economic conditions and the economic and political power of the violator, may make state regulators less inclined to take necessary enforcement actions. For example, Maryland's failure to take enforcement action against a steel manufacturer for extensive, longstanding violations was attributed to "the cozy relationship large companies develop with state regulators." In addition, while the ability to weigh the local costs and benefits may be beneficial to the immediate area, it may result in an uneven playing field if a local pollution source is allowed to avoid compliance costs that are imposed by other states.
Rare is the proponent of devolution who does not refer to Justice Brandeis' observation that one of the benefits of federalism is that it allows states to serve as laboratories of democracy for novel social and economic experiments. Indeed, many federal environmental statutes are based on programs that were first developed at the state level. However, it is also true that EPA has played a major role in numerous advances in enforcement, such as multimedia, industry sector, and environmental justice enforcement initiatives. Even where state experimentation does result in an innovative solution, the federal government is uniquely situated to take that successful experiment out of the state lab and see that it is implemented across the country. In fact, because "innovative policies" tend to be adopted primarily by a few states with more liberal or progressive state governments, the inability of EPA to diffuse inventions to all states may exacerbate differences in environmental protection between states if laggard states fail to adopt the new policies.
One of the most compelling original justifications for federal enforcement has been diminished by the dramatic growth in the size and capability of state environmental agencies. Because of this growth, some believe that federal enforcement and oversight of state programs may at times undermine the efforts of competent state enforcement agencies by making the state appear less able to handle the state's problems, by discouraging violators from resolving their disputes with the state for fear that EPA may still take enforcement action, or by diverting state resources to the demands of federal oversight or to EPA-targeted priorities that may not reflect the true needs of the state.
Not all states, however, are equally able or willing to enforce federal laws. Not surprisingly, the most eloquent proponents of a reduced federal role in enforcement generally are from states with strong state programs. But a federal enforcement presence that may seem burdensome in strong states appears absolutely essential in a state where relaxed environmental enforcement is seen as a way to induce economic development. Therefore, although the concern that states lack the resources and commitment to aggressively enforce environmental laws may be less justified than in the past, without a significant EPA role in enforcement, compliance and environmental quality would suffer in many states.
Finally, the federal government cannot handle all, or even most, enforcement. In 1994, states brought approximately eighty percent of all enforcement actions. Regulatory programs are covering an expanded number of increasingly small sources, making it even less likely that EPA could handle most enforcement, thereby increasing the benefits of having most enforcement done by the government entity closest to the problem. This need for state enforcement of federal programs, however, does not argue for no federal role, or even for a reduced federal role. It does, however, dictate that the federal government not unduly interfere with the primary job of enforcement performed by the States.
Thus, while some of the original arguments for federal enforcement may find less support today, there are still compelling justifications for a significant federal role in enforcement.
IV. CRITERIA FOR DEFINING THE LIMITS OF DEVOLVING ENFORCEMENT
While there are many justifications for federal enforcement of environmental laws and perhaps an equal number of arguments in favor of state enforcement, a consensus on the criteria for determining the appropriate level of government to enforce environmental laws is lacking. Most arguments for further or complete devolution of enforcement to the states are ideologically based. Federalism, it is contended, mandates that without a compelling justification for federal involvement, the policing of pollution is best left to the States.
Yet federalism claims may mask a hidden agenda of deregulation -- an often unspoken benefit of more decentralized enforcement is not just that it allegedly will work better or be more responsive to local concerns, but it is also likely to be less effective and result in less regulation if states are unwilling or unable to aggressively enforce the law. President Reagan's New Federalism was not just an attempt to transfer power back to the States; it also aimed to eliminate the perceived regulatory excesses of pollution control regulations. Devolution wasn't just an end; it was also a means to deregulate.
Likewise, some current proponents of devolution mix their calls for a transfer of power to the States with tales of regulatory excess and a sermon on the virtues of less government regulation. Even without such obvious deregulatory goals, the hidden agenda behind earlier attempts to devolve enforcement taints the present proponents of devolution and requires proponents to justify a shift in enforcement authority on public policy, not just ideological, grounds.
It is also the case that the public cares less about ideology when it comes to questions about the division of authority between the federal and state governments and more about what works and what it costs. When asked whether federal or state government should have more responsibility for achieving environmental protection, Americans preferred the federal government over state government by a fifty percent to thirty-eight percent margin. According to one survey, sixty percent of the public opposes reducing the compliance powers of EPA, while seventy percent feel the federal government has not gone far enough to protect the environment. These polls support the observation that "[t]here is no guarantee that Washington can do any better, but in the face of state and local failure the American public tends to turn to the national government. In fact, the public looks to the national government to solve any major problem, regardless of how successful the other levels of government have been."
Therefore, if we should respect the desires of the public and base the limits of devolution on who gets the job done rather than on ideology, then what we need are pragmatic grounds for any further devolution of enforcement authority. Sound public policy criteria and demonstrated results, not abstract political doctrines of federalism versus nationalism or unspoken agendas of deregulation, should determine the level of government that is most appropriate to enforce environmental laws
Surely the first criteria for any pragmatic devolution ought to be the relative effectiveness of federal and state enforcement. There is great concern that the present amount of governmental enforcement is inadequate. Polls show that an overwhelming percentage of the public wants stricter enforcement of existing environmental laws, and rightly so, given that violations of federal environmental laws are widespread. Two-thirds of corporate counsel admitted in 1993 that their businesses operated in violation of environmental laws during the past year. Half of all corporate environmental managers believe that the federal government's enforcement is inadequate, citing the need for more enforcement to ensure that all companies are treated equally.
The difficulty lies, not in gaining agreement on the need for more effective enforcement, but in defining and measuring enforcement effectiveness. While EPA often focuses its resources on high visibility cases that advance the goal of general deterrence, states have traditionally taken a less confrontational approach, often preferring to work informally with the violator to bring it back into compliance. Thus, attempts to evaluate the effectiveness of an enforcement program through the number of enforcement actions or the size of the penalties assessed may overlook other important measures of compliance. Even if there were agreement on some "objective" measure of enforcement success, because EPA often takes the lead in larger, more difficult cases, numbers alone are not likely to reflect the relative success of the two levels of enforcement. Thus, there is no agreement on how to define a successful program.
Ideally, measures of effectiveness could be compared for state-run programs, federally-run programs, and programs with state implementation and federal oversight. However, there is no published empirical study comparing the effectiveness of federal and state environmental enforcement, leading one commentator to observe that although it is often claimed that states have advantages over federal enforcement, "[i]t is unclear whether these state advantages are real or primarily received as articles of faith."
Although a systematic study is lacking, a number of observations have been made about the success of various state and federal enforcement programs. When Iowa returned responsibility for its municipal water monitoring to EPA in the early 1980s, EPA managed to conduct only about 15% of the number of inspections formerly performed by the state. An EPA official observed that if only a small number of delegated states were to return their programs to EPA, because of resource constraints "there would be less enforcement, not more."
Critics of the Superfund program point to the lengthy time for EPA cleanups and the small number of completed cleanups, as compared to sites addressed by state programs, as evidence of the lack of effectiveness of federal enforcement programs. However, this observation overlooks the fact that EPA, by law, focuses on emergency cleanups and the most hazardous sites. It also fails to acknowledge that the mere threat of becoming a federal Superfund site has encouraged responsible parties to cooperate with state cleanup efforts. Undoubtedly, the influence of EPA's independent enforcement authority on the success of state enforcement programs makes it difficult to predict the results if EPA were to cease enforcement activity.
Problematic as EPA enforcement has been, state enforcement has not necessarily been any more successful. The General Accounting Office found that the track record of states in carrying out enforcement of federal laws, particularly in assessing penalties and in ensuring that any penalty assessed at least recovers the economic benefit of noncompliance, "is even more disappointing" than the record of EPA. Government studies repeatedly document the failure of states to take necessary enforcement actions for violations of water pollution, drinking water and hazardous waste regulations.
Historically, withdrawal of federal enforcement has not resulted in more state environmental enforcement. When the Reagan Administration greatly reduced federal enforcement and increased state responsibilities, states also reduced their environmental regulatory activities, especially their enforcement of laws and regulations. Indeed, if the withdrawal of federal authority as a backstop to state enforcement efforts is coupled with reductions in federal grants for state enforcement efforts, as is expected over the next few years because of the budgetary problems of the federal government, then state enforcement may become dramatically less effective than at present.
Therefore, although a lack of data hinders the ability to judge the relative effectiveness of the two enforcement programs, there is no compelling case on effectiveness grounds for eliminating or drastically reducing the federal role.
Efficiency is the second criterion by which to judge the limits of pragmatic devolution. An efficient enforcement program would maximize enforcement effectiveness for a given expenditure, generate the lowest enforcement costs for a given level of compliance, or provide marginal benefits of increased enforcement at least equal to the marginal costs of additional enforcement. Once again, lack of data prevents a conclusion on the relative efficiency of federal and state enforcement programs.
It is clear, though, that EPA's enforcement expenditures are a small part of the overall federal budget. Indeed, EPA's expenditures are only 0.4 percent of the federal budget, and enforcement makes up only a modest part of EPA's total operating budget. Moreover, while EPA's responsibilities have increased significantly, the buying power of EPA's budget in 1992 was only 55 percent of what it was in 1978.
Federal enforcement is efficient, at least when measured in terms of enforcement dollars spent and relief received, and is even a source of revenue for the government. In 1991, for every dollar spent, civil judicial environmental enforcement actions returned twenty-five dollars to the U.S. Treasury; criminal enforcement actions returned three dollars. In fiscal year 1994, the U.S. Department of Justice's Environmental Enforcement and Environmental Crimes Sections collected more than $80 million in penalties and fines alone, all on a total budget, including all Superfund cases, of $50 million. EPA's enforcement programs also return more in benefits than they spend on enforcement. In 1994, EPA recovered $151 million in civil penalties and criminal fines and more than $740 million in non-Superfund injunctive relief and supplemental environmental projects at a cost of less than $230 million. These efficiencies, coupled with the high nationwide rates of noncompliance, make it hard to justify drastic cuts in federal enforcement budgets that would have the resulting indirect effect of devolving an even greater proportion of enforcement responsibilities to the States.
In spite of these impressive statistics, it is generally assumed that states run their enforcement programs more efficiently than EPA, presumably because state salaries are less than federal salaries and, by being closer to the source of the problem, travel and other costs are lower. One of the few available comparisons resulted when EPA was forced to resume implementation of Idaho's air quality program for 15 months beginning in July 1991. One EPA official estimated that it cost the federal government at least double what it cost the state to run the program; another commentator claims that EPA reportedly spent almost five times as much to maintain the Idaho program that year as the state would have spent to do the same job.
Even this natural experiment suffers from of problems that make comparisons difficult. Because EPA could not hire employees for what the agency viewed as a temporary program, EPA was forced to hire more expensive private contractors to implement the program. Moreover, while this example suggests that it might cost EPA more to run an enforcement program (or at least a new program) than it would cost the state to continue with its existing program, the Idaho example tells us nothing about the effectiveness of either the state or EPA-run enforcement program. Therefore, while it might cost more, a federally-run enforcement program might result in greater compliance.
Other issues further cloud any accurate assessment of efficiencies. A certain amount of overlap and duplication of effort exists between federal and state environmental enforcement programs, as is true in other areas of dual enforcement, such as drug-related crimes, civil rights, and workplace safety. The most controversial form of duplication, independent enforcement action by EPA in an authorized state, is EPA's most effective means to oversee state enforcement programs and provides significant deterrence value. While overlap increases compliance, if one level of government could implement all enforcement and attain results comparable to what are now being achieved by dual enforcement, then costs could be saved. But this is a very big "if," the general agreement that, were the federal government to decrease its environmental enforcement activities, many state programs would be weaker, deterrence would suffer, and noncompliance would increase.
It is also repeatedly suggested that there are certain inefficiencies with nationwide enforcement programs because they focus resources on issues that may not be problems in particular localities. While this is likely true in some circumstances, national enforcement serves other important goals such as providing equitable treatment of the regulated community and helping ensure equal environmental protection for all citizens. Federal officials could address any such inefficiencies by tailoring enforcement efforts to address local problems and providing greater decision-making discretion to state enforcement officials rather than by abolishing federal enforcement programs.
Moreover, just as EPA cannot accomplish all enforcement, it is unreasonable to assume that states can assume all enforcement responsibilities, particularly if there are reductions in federal grants to state enforcement programs. In fact, cuts in federal grants could have the unintended effect of increasing the need for federal enforcement as states may become increasingly reluctant to assume federal responsibilities that appear to be yet another unfunded mandate and may decide to return pollution control programs to EPA.
Finally, pragmatic devolution requires that officials vest enforcement responsibilities in a level of government that can ensure equitable treatment of citizens and businesses. The desire to ensure that the benefits and costs of environmental protection are evenly distributed was a compelling reason for the establishment of federal environmental programs. However, national pollution standards do little to ensure equal protection if these requirements are not uniformly enforced throughout the country.
Federal enforcement plays a major role in seeking to ensure fair and equitable treatment of the regulated community. As markets for goods and services have become increasingly national and international, centralized enforcement programs are in a unique position to provide consistent enforcement policies and practices. If a company violates a federal pollution control standard in Louisiana, then it should expect roughly the same enforcement response as a similarly situated company in California or New York. Only a significant federal enforcement program, as argued above in Part II, can maintain this level playing field and minimize the market imbalances that might result from unequal enforcement among the States.
Citizens likewise are entitled to an equitable level of environmental protection. "The justification for uniform [national] standards is that each citizen has an inherent right to the same level of environmental quality (or the same level of environmental risk)." This expectation of environmental protection has become so pervasive that it is now viewed by persons of every political party "to be an inalienable right that they rank alongside liberty and the pursuit of happiness." If we believe that businesses should expect similar treatment for violations of the same federal standard, then should not a citizen of Louisiana expect that he or she will receive the same federal protection from environmental hazards, and a comparable enforcement response for violations of federal standards, as a person residing in California or New York?
Balanced against this right of citizens to equal protection is the desire of states to implement their own enforcement programs. However, important as it may be to respect federalism and state autonomy, national environmental standards mean nothing if citizens cannot expect equal enforcement of those standards regardless of where they live. Thus, if states alone were allowed to enforce federal standards or if they were free to ignore noncompliance with environmental regulations or trade off enforcement of environmental laws for promises of economic development, then many citizens could lose the uniform levels of environmental protection legislated by Congress. If, as reflected in the legislation of national standards, there is agreement that citizens are entitled to a fundamental level of environmental protection, then some government entity must be in a position to ensure on a state-by-state basis that the equal protection of citizens is being safeguarded. Even state environmental officials recognize the role of the federal government in ensuring that all states provide fundamental public health and environmental protection.
Only federal enforcement can ensure that citizens, like businesses, are equally treated and equally protected. Although the need to ensure equal protection of citizens may not justify that the federal government perform all or even most enforcement, it does justify a substantial federal presence to act where and when needed. As long as we recognize the right of citizens to equal protection from environmental hazards through the promulgation of uniform national standards, then some federal enforcement is necessary to ensure that states respect and protect those rights.
Based on my analysis, I do not believe that devolution of all enforcement of federal environmental laws to the states is supportable. The initial justifications for federal enforcement, though they have changed over the past two decades, are still largely valid. In addition, although the available data is limited, the public policy criteria of effectiveness, efficiency and equity do not support a dramatic reduction in federal enforcement. Unfortunately, this lack of data also hinders informed choices about the proper mix of federal and state enforcement and makes it difficult to define the appropriate limits of devolving federal enforcement.
It is apparent from the information that is available that because of resource limitations and respect for principles of federalism, the federal government alone cannot and should not administer all, or even most, enforcement. On the other hand, because pollution has economic and public health impacts that transcend state boundaries, states cannot execute all enforcement. States also lack the will and resources to address all violations. Environmental enforcement problems are just too large and too complex for any one level of government to handle.
To argue that there should not be a dramatic reduction in federal enforcement is not to suggest that the federal-state enforcement relationship could not be improved. Reforms are needed that will make enforcement programs work better by minimizing unnecessary duplication and conflicts between federal and state programs. EPA and the states are considering a number of new oversight reform proposals, such as the development of new enforcement performance measures, "differential oversight," and increased use of block grants. Provided that issues of enforcement devolution are resolved on sound public policy, not ideological, grounds, these proposal have the potential to improve both enforcement and federal-state relations.
Therefore, I urge you to encourage EPA and the states to both: 1) gather additional data on the effectiveness and efficiency of federal and state enforcement so that this important issue can be resolved on pragmatic grounds; and 2) continue efforts to coordinate and cooperate on enforcement so that federal and state governments can provide the public with what they want and need -- effective, efficient and equitable enforcement of federal environmental laws.
Thank you for allowing me to testify before the Committee, and I hope that my remarks are useful to you in addressing this important issue. I will be happy to answer any questions you may have.