Senate Committee Hears from States about Cooperative Federalism

On March 9th, the Senate Environment & Public Works Committee held a hearing on the subject of “Cooperative Federalism:  State Perspectives on EPA Regulatory Actions and the Role of States as Co-Regulators.”  Witnesses from five state environmental programs (South Dakota, Arkansas, West Virginia, Vermont, and Delaware) were invited to testify.

Earlier, Committee Chair James Inhofe (R-OK) had sent a letter to all state environmental commissioners asking for their input on the concerns and challenges that they find in working with Federal agencies – particularly EPA – to successfully and effectively implement Federal regulations.  Among the array of identified issues, Inhofe highlighted several that will resonate with state drinking water programs (even though drinking water implementation was not identified as a critical issue area).  They included concerns about a lack of early consultation with states during the rulemaking process; concerns about special interests who appear to drive the regulatory agenda; the frequency with which regulatory guidance becomes enforceable; and that states are being asked to implement and enforce an escalating number of regulatory requirements with fewer and fewer program dollars.

The majority of the hearing focused on EPA’s air quality program and the recently paused Clean Power Plan.  While both Vermont and Delaware spoke about the positive working relationships with EPA Regional and Headquarters staff, South Dakota, Arkansas, and West Virginia shared different experiences.  All witnesses agreed that it is appropriate for EPA (or any Federal regulatory authority) to set minimum national standards.  They also generally supported the statement that states should have flexibility in the implementation of those standards.  The principal problem lies in the perception of Federal overreach into what several states see as their own jurisdiction.  South Dakota noted that new Clean Air Act requirements will have a major financial impact on industry in the state without demonstrably improving air quality.  Arkansas spoke about numerous Federal directives and deadlines that conflict and in some cases contradict each other.  West Virginia’s perception was that, today, Federalism is not very cooperative but suggested that the difficulty lies more at EPA’s Headquarters rather than at the Regional Offices.

Although the discussion context was the Clean Air Act, Delaware provided six principles that should form the foundation of “cooperative Federalism”:  regulations based in sound science; flexibility for states to meet regulatory requirements; timely issuance of rules and guidance; accountability and consistency in achieving desired outcomes; a level playing field for states in terms of equity; and Federal action where states are unable to act, such as for multi-state or national issues.  Most Committee members and witnesses alike expressed support for the concepts embodied in these principles.

If you would like to view the recorded hearing or read the testimony, that information is available at under the “Hearing Notices” section.