By Steve Thorpe
Legal News
Before the 1960s nearly all environmental policy was at the state and local level.
This changed with extensive environmental legislation in the late 1960s and early 1970s.
Currently, most federal environmental laws give regulatory authority to federal agencies and authorize states to implement plans outlined in federal laws.
This model is often called “cooperative federalism.”
But a major shift back to state and local environmental oversight is underway.
Nick Schroeck is director of Clinical Programs and associate professor of law at University of Detroit Mercy School of Law.
He previously directed the Transnational Environmental Law Clinic and taught Environmental Law at Wayne State University Law School.
He also has served as executive director of the Great Lakes Environmental Law Center.
Thorpe: Tell us a bit about this tectonic shift in environmental regulation.
Schroeck: With the passage of new environmental laws and major amendments of existing laws in the late 1960s and early 1970s, Congress tried to get a handle on environmental degradation and to create a regulatory floor, meaning that all states had to meet certain minimum environmental protection standards.
National minimum standards were important to prevent states from trying to undercut the regulations of other states to attract investment — a classic race to the bottom.
States were free to pass laws that were more environmentally protective than the federal minimum standards. Some states, like Michigan, went ahead and passed laws that were more environmentally protective than the federal minimum standards in some areas — like air toxics and wetlands regulations, for example.
Now, we’re seeing states, like Michigan, seek to rollback some of their more protective regulations, and in some instances states are seeking to take back regulation entirely from the federal government.
Thorpe: Do you expect the change in governors here in Michigan to affect the pace of these changes?
Schroeck: I think so. The movement to rollback more protective state environmental laws has been led in large part by Republicans in the legislature.
Former Republican Gov. Rick Snyder even vetoed extreme attempts to rollback environmental protections earlier in his second term. He did sign some repeals of environmental regulation during the most recent legislative lame duck session.
Gov. Gretchen Whitmer would be more likely to veto any similar legislation that makes its way to her desk. She campaigned on improving water quality in the state and on providing more support to beleaguered state agencies, like the Department of Environmental Quality.
Thorpe: How have the changes affected attorneys for both corporate clients and environmental watchdog groups?
Schroeck: It’s interesting. Some industry clients prefer to deal with DEQ, others prefer to deal with the federal EPA. Depending on who is in charge at the state or federal level, I think regulated industries are looking for the agency that is most likely to view their position favorably.
However, I’ve also heard from industry stakeholders that building relationships with regulatory staff at either level is what is most important.
They like continuity, certainty, and knowing who there are dealing with and what to expect. Environmental watchdog groups are in a similar position. On some issues, like wetlands, there are concerns that Michigan’s rollback of regulations may even violate federal minimum standards, and they think that EPA could potentially be a better steward of our wetlands than our own state government has been.
That opinion has likely changed with the election of both Governor Whitmer and Attorney General Dana Nessel here in Michigan, and the on-going uncertainty at the federal EPA under President Trump’s Administration.
What most concerns the watchdog groups is the sense that we are backsliding at both the state and federal level and potentially giving up some hard-fought conservation and restoration successes.
Thorpe: How big a problem has simultaneous “overfiling” with both state and federal agencies been?
Schroeck: What you’re alluding to here is the situation where a state has delegated authority to administer a federal law, and the federal government decides to bring an enforcement action. Even where a state has delegated authority, the federal government can still file lawsuits to enforce federal law.
From my perspective, this hasn’t really been a big problem because there is not enough enforcement at the state or federal level. State and federal agencies use their form of “prosecutorial discretion” to only go after certain violators. It’s a question of resources, and again, from my perspective, state and federal agencies have not had enough boots on the ground to fully enforce our environmental laws.
And as to “overfiling,” the federal government typically argues that it makes sense to have consistent enforcement actions across the country. Of course a company getting hit by both state and federal agencies would argue that it’s overly burdensome or costly.
Thorpe: What do you see next on the horizon in environmental law?
Schroeck: At some point, hopefully soon, we are going to have a comprehensive, national climate change policy that actively works towards reducing greenhouse gas emissions. I think the public is way ahead of the politicians on climate change, and sooner or later they are going to demand action on climate, or we are going to see climate deniers and climate skeptics voted out of office. And when we do have passage of a new, major federal environmental law, that means lots of jobs for the next generation of environmental attorneys to implement the law and to explain to their clients what it means for their interests.
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