Why the Debate Between State and Federal Environmental Laws is so Intense in the Era of Trump

According to the Oxford English Dictionary, effective is usually defined as “successful in producing a desired or intended result.” Experts may use this word in the context of policy debates to place into perspective the scope and results of a law following implementation, although others may weigh one factor over the other to determine if a law truly does deliver on the greater good.

From a legislative standpoint, however, “effective” can take on further meanings, expanding the criteria any one policy should meet to be considered worthwhile. In their online course concerning public policy, Norwich University establishes several key factors that lead an “effective” law, most crucially that the equation for successful policy is good policy plus good politics (the activities surrounding the implementation of the policy). In addition, a paper published in Policy Design and Practice in 2019 found that inconsistencies among federal and state enforcement are what often hinders the effectiveness of any one policy, citing “vagaries” in the systems of accountability that undermine implementation. This means that no matter how well-designed a law may be, its execution can make the difference between tangible change or bureaucratic ruin.

Such is why, ultimately, the understanding of an effective environmental policy breaks down into several different questions:

1. Can it achieve its intended purpose?

2. Does it achieve its intended purpose?

3. Will it significantly strengthen the protection of the environment?

These three questions comprise the philosophy of an effective environmental policy because they address the historical, systemic, and constitutional barriers that often limit or permit legislative bodies from enacting widespread reform; for example, while a state may pass a law that implements a carbon tax on its manufacturers, that law does not apply to states outside of their jurisdiction, thus limiting the national impact of the law. 

The Framers of the Constitution made a conscious decision to make the United States Congress the most prominent instrument of governance in the newly formed nation. Article 1 is longer than any other in the document, and under that outline of a national legislature are various powers that concern everything from establishing a treasury to regulating commerce between the states. As a result, most of the Federal government’s success is contingent upon the laws that shape it, and by extension the makeup of that assembly contributes to the strength and efficacy of those laws.

This is where a divided government, in which the Senate and House are controlled by two competing political parties, comes namely into play.

Since reclaiming a majority in the House of Representatives after the 2018 Midterm Election, Democrats under speaker Nancy Pelosi have approved multiple major laws that confront environmental issues affecting the nation, including the multi-trillion dollar Green New Deal and the more minor Climate Action Now Act. Where these laws are passed through the lower chamber, however, the Senate under Republican leadership has vehemently condemned these policies and have essentially gutted any foreseeable progress pre-2020 election.

However, this does not mean that the Federal government has been stagnant in the past in enacting and upholding sweeping measures to save our environment. 

The Environmental Protection Agency (EPA) was established in 1970 following an executive order signed by Richard Nixon and has been the near sole tool for federal regulation of all things environmental within and between state lines. Many pro-government proponents paint the agency, which is independent from the primary departments of the Executive branch, as the ultimate force for promoting environmental policy and protections; laws like the Clean Air Act, the Endangered Species Act, and the Clean Water Act all derive from the EPA and are still maintained on a national level, among many other federal statutes. Their ability to develop, lobby, and implement laws gives them a unique power over the national mindset, as they can utilize the power of regulating interstate affairs to affect widespread systemic change.

While acting as the oversight over crucial environmental policies, they have also produced substantial results that have improved the environmental as a whole: toxic pollutants have been drastically reduced in lands, lakes, and air, and standards created with help from the EPA like the National Ambient Air Quality Standards (NAAQS) have played more than a major role in identifying sources of pollution and cutting down on greenhouse gases.

The EPA has been at the forefront of guiding national policy in the direction of environmental sustainability. However, not even the EPA is impervious to major shakedowns in leadership that could eventually threaten its very future.

After being elected in 2017, President Trump fired Obama’s embattled EPA Administrator Gina McCarthy, and in the following three years two individuals have filled the position: Scott Pruit, the Oklahoma A.G. who was notorious for suing the EPA and who would resign as Administrator following an onslaught of misconduct allegations; and Andrew Wheeler, the current Administrator whose former positions included lobbyist for coal magnate Robert E. Murray and chief counsel for U.S. Senator and climate change denier Jim Inhofe. Under Pruitt and Wheeler, Trump’s EPA has rolled back hundreds of regulations regarding everything from fuel efficiency and mercury emissions to air and water pollution, and with the added threat of COVID-19 heading into the 2020s, many experts fear that deregulation may cause a pandemic of its own. The President’s proposed fiscal budget for 2021 also sees the Administration slashing the agency’s budget by 26% and cutting 50 EPA programs

The flaws of the EPA go much deeper than the current Administration. In fact, there are many trends that follow overarching themes within the agency’s history, undermining its role as the voice of reason concerning environmental policy in the Federal government.

For one, enforcement power does not equate to legislative power, and much of the agency’s history demonstrates this. For example, important laws like the Clean Air Act were passed years before the formation of the EPA, and conflicts involving the fine line between partisanship and scientific facts-and-figures have dissuaded, if not directly barred, agency officials from informing Congress, as what happened with the organization’s top scientific integrity official, Francesca Grifo, in July of last year.  Furthermore, the process to create new regulations without the help of Congress involves a lengthy process that is later mired in red tape and legal challenges–obstacles that the current Administration’s reduction of funding heavily accentuates. 

Combining that with the disruption of leadership, this heavily calls into question the EPA’s role in maintaining a strong grip over the states and standing up to corporations and businesses who stand to benefit from deregulation. Examples of failures in the past to enforce regulations, like that involving Flint’s ongoing water crisis, further damage the reputation of an all-too essential aspect of Federal governance.

While environmental policy within the United States possesses an important place in the overall pursuit of collective harmony, it should not be forgotten, however, that air, water, and other aspects of nature are not defined by state or national lines.

Many proponents of a government-first environmental actor cite a more famous, yet frequently forgotten power that could reshape the meaning of “policy” in the scope of widespread reform: treaties. Article II, Section 2 of the United States Constitution cites that the President is the sole authority to make or sign treaties with other countries, with the consent of the Senate. This means, in theory, the Federal government is the only political entity in the United States that can have legitimate international influence, which means that their pursuit to enact environmental reform can extend to multiple countries–not just within the confines of individual states. 

The pro-state argument against this is twofold. Firstly, treaties, although legislative in nature, are not U.S. laws and do not have any real enforcement power over state rules and regulations. The federal government’s commitment to these treaties is only as powerful as the laws they adopt from such agreements, so often the significance of treaties like the Paris Climate Agreement may only be limited to the symbolic gesture of enacting later reforms.

Secondly, pro-state advocates will go further to explain how, although states cannot cooperate with outside countries to pass laws, there is nothing stopping them from joining hands with other states and passing laws that seek to match the ideals and objectives of their own laws. This was best demonstrated in the aforementioned Climate Alliance, when twelve states came together after the withdrawal of the Paris Accords to pledge their own accords to protect the environment. As of 2020, nearly half the overall states have joined said alliance, and governors for this group have shown to come from both sides of the legislative aisle. 

Altogether this demonstrates that, while the Federal government may be key in promoting global environmental reform, there is nothing stopping states from communicating their own message for all the world to hear–even when it means defying their own President.

The most frequent argument for pro-state is that environmental policy is not a one-size-fits-all affair. Instead, as many proponents like Trump himself argue, policy over sensitive topics should be tailored for each individual state, and there is no more capable or understanding agency to make laws for the state than the people who live there. 

This speaks to an even greater argument regarding the effectiveness of state legislatures: exempt from the divide within Congress, states can be more more efficient, more innovative, and more outspoken with how they pass their policy. According to a study from Quorum, state legislatures collectively introduce 23 times more bills than their national counterpart and enact around 20% of their legislation as opposed to the 3.6% of Federal policy passed onto the President’s desk. 

The startling lack of gridlock often results in more policy, which gives the states the upper hand in taking the lead on national environmental regulation. Such can be found in states like California, who have become the “vanguards” on engaging multiple state actors both domestic and international in climate partnerships to reduce climate change. In recent years, the state has also spearheaded rules targeting emissions and pollution stricter than that of the Federal government, which later led 13 more states to adopt the standards as their own. They were also among the earliest states to join the Paris Accords-era Alliance, demonstrating that, without the partisan tumult surrounding the EPA, the opportunities to rise up have never been more aplenty.

Being effective at passing bills does not always result in passing effective bills. More often than not, regulations and rules are expedited through local legislatures, and many states do not have the time or resources to develop enforcement mechanisms of their own that do not demand EPA oversight.  According to the Institute for Policy Integrity in 2017, only eight states had satisfied an goals regarding major air-pollution emitters, and performances across all states in upholding provisions under the Clean Water Act varied by up to 50 percentage points. Such is why the institute concluded that, even when the Federal government attempts to cede enforcement power to the states to their own liking, the obligation to uphold Federal statutes and innovate upon their own, for lack of a better phrase, disappears into thin air.

While some states may want to take matters into their own hand, the voluntary nature of lawmaking in a pro-state scenario does not adequately meet up to the otherwise complex conflict surrounding environmental reform.

Another heated topic for debate surrounding the legitimacy of state legislatures as a tool for environmental regulation regards lobbyists. Experts have long pointed to the abundant presence of lobbyists in Washington D.C. as the antithesis for good policymaking, as firms spent more than $3 billion in 2019 on Capitol Hill. In the context of environmental legislation, over $30 million was spent in energy lobbying along with $28 million in air transport and $29 million in manufacturing. As previously mentioned, the current EPA Administrator, Andrew Wheeler, was himself a coal lobbyist before ascending to the very seat he sought to influence from the outside, demonstrating that money-fueled politics is often the only kind of politics that flourishes in the Federal government.

The prospect of environmental legislation at the hand of corporate lobbyists is among the most abhorrent outcomes one can imagine for the climate dilemma facing this country, ceding support in favor of local reforms. In many cases, unfortunately, lobbying is even more dominant on the state level than found within Washington, and for much more dire reasons.

Principally, states often rely upon industries to support their local economies, making them more complacent with corporate interests as both parties are well aware that business can be taken to more deregulated states or outsourced out of the country as a whole. Because the Federal government is not burdened with ensuring the individual economies of each state, they are much less beholden to the survival of certain corporations. This provides a solid rationale behind the previously mentioned “lax” enforcement of state environmental laws: while local legislators may signal change with bold and popular environmental proposals, the implementation is on average shrugged off to appease to those who provide jobs and economic viability to those lawmakers’ states.

The fight over the environment is undoubtedly intense, and ambiguity surrounding state and federal actions continues to plague the American public. While President Trump may bear ultimate responsibility over the general goal of achieving stability in the realms of climate reform, there are fundamental disagreements that have separated him from what could be considered the most substantial environmental pushes in the modern legislative history of this nation, at the state level. When it comes to the “can, does, will”-factor of legislation, it has become abundantly clear that the inconsistency of laws resulting from bipartisan divide pose the biggest threat of ensuring effective change. 

In the end, there are a few things that American citizens can do to bridge the divide and have both federal and state powers work symbiotically to advance a uniform environmental agenda: firstly, by voting for members of Congress who are against downgrades in EPA power; secondly, by voting for local politicians who seek to challenge the status quo concerning state environmental protections; and thirdly, by voting for a President who believes in climate change and recognizes the indispensability of Federal management in state laws and implementation. 

 Originally published in Mission for American Resolve.