Despite its public statements professing eagerness to cooperate more with the states, the U.S. Environmental Protection Agency (EPA) remains wedded to the military-style “command-and-control” philosophy that has dominated the agency since its creation in 1970.
According to Duggan Flanakin, adjunct policy analyst with the Washington, DC-based Committee for a Constructive Tomorrow (CFACT), EPA’s intransigence has led to growing tensions between the agency and state regulators, who believe that the time has arrived for them to be treated as partners rather than subordinates.
In a January CFACT briefing paper, “EPA’s Relations with the States: Top-Down Commander or Managing Partner?” Flanakin writes, “the potential has never been greater for transforming EPA into an organ for assisting and promoting wise environmental management by the nation’s local governments, small businesses, large corporations, and individual citizens.” Such devolution of control over environment issues, Flanakin contends, “mirrors President Lincoln’s vision of a ‘government of the people, by the people, and for the people.'”
Serious attempts at such “regulatory reinvention” began during President Reagan’s last years in office, with the creation of the Negotiated Rulemaking Project. That effort, a result of Reagan’s Executive Order 12612 on federalism, brought various interested parties together to address issues in a way that would minimize litigation and bickering.
Reagan’s initiative was followed by the Bush Administration’s EPA-State Task Force on State Capacity, intended to overhaul the relationship between the two participants. Later, Flanakin says, the Clinton Administration promised the nation a new era of “regulatory reinvention” that built on the findings of the Bush task force. Clinton’s proposed follow-up also called for greater public participation in rulemaking, permitting, and enforcement.
Despite movements in the right direction, key stumbling blocks, Flanakin writes, have prevented real progress toward improved federal-state cooperation.
Not surprisingly, Flanakin notes, top EPA officials have been reluctant to give up their power and, with the exception of a few high-profile attempts at re-invention, continue to conduct business as usual. EPA officials have gone so far as to mislead federal judges and intimidate staffers whenever their power to make decisions has been challenged.
Rather than provide leadership in changing the agency’s outdated mindset, political appointees charged with overseeing the reinvention process “have actively or passively participated in arrogant, even illegal, actions by EPA staffers,” according to Flanakin.
After several years of working with the states to nail down goals beneficial to all, the Clinton Administration in February 1997 appeared ready to keep its promise on regulatory reform with a package known as the “Draft Joint EPA/State Agreement to Pursue Regulatory Innovation.” The proposal presumably had the blessings of Deputy EPA Administrator Fred Hansen.
But the states’ high hopes were dashed by Hansen when he rejected the agreement. He said it gave too much authority to local government officials, noting that, as he remembered the earlier talks, “we discussed the development of a process by which states could raise to EPA minor, and I stress minor, changes to interpretations, clarifications, and issues of consistency in programs we jointly administer.”
The states received another jolt in May when Clinton, while visiting England, secretly issued Executive Order 13083, superceding Reagan’s order on federalism. State officials were appalled. “And no wonder,” notes Flanakin. “The document had granted federal agencies power to overturn state laws and regulations without judicial intervention in cases where ‘decentralization increases the costs of government, thus imposing additional burdens on taxpayers.'”
Rocked by negative reaction from across the country and receiving virtually no support for his action in Congress, Clinton backed down and agreed to negotiate a new Executive Order that would please everyone.
“Yet the very issuance of the Executive Order showed something fundamental about the Clinton Administration’s belief about partnerships with states and stakeholders, and its level of confidence in the American people,” Flanakin comments.
If legitimate reform is to take place, he notes, EPA must make its first priority the safeguarding of the natural environment. The agency must bring in a new generation of employees who have experience at the state or local levels, rather than entrusting “so much of its future to untested ‘second lieutenants’ who come to Washington and begin issuing orders to state regulators and regulated entities when they are fresh out of college with heads filled with theories and self-importance and no real-world experience.”
Moreover, Flanakin notes, this new generation of EPA employees must learn more about science and factual inquiry, as well as cost-benefit analysis and risk management.
“Finally,” Flanakin concludes, “EPA employees need to learn a sense of fair play–to believe that people will be more inclined to do the right thing for human health and the environment . . . if they are invited in as co-participants rather than scorned as evildoers.”