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Restoring Proper State-Federal Relationships

Restoring Proper State-Federal Relationships
Eleventh Annual Environmental Law Developments Seminar
October 28, 1997
Wyndham Franklin Plaza Hotel
Philadelphia, Pennsylvania
Becky Norton Dunlop

Thank you all for having me here today. I am very pleased to be here representing Governor George Allen and the Commonwealth of Virginia.

I always appreciate the opportunity to travel to other parts of this beautiful country to discuss many of what I consider to be the more important environmental concerns. As we in Virginia have moved toward a cleaner, safer environment, a proper and clearly defined role for the state and federal government on environmental issues has yet to be developed. The old axioms no longer apply and we must seek out better ways to do business with one another.

As many of you know, we in Virginia have made a concerted effort since Governor Allen took office to develop and implement environmental programs that are not just environmentally effective, but that offer citizens and the regulated community both flexibility and accountability.

As we have succeeded in "doing it our way," I think it is fair to say that at times the relationship between federal and state regulators has been less that cordial.

In fact, many would argue it has been contentious. I think that is unfortunate because there are very clear areas of responsibility both for the federal as well as state environmental officials. The role of each is where we seem to differ most. We in the states believe now is the time to redefine the federal-state environmental relationship, and I'll be happy to tell you why.

To begin with, during the last thirty years, most states have made every effort to become less dependent on the federal government for guidance and direction in tending to the needs of their natural resources. In doing so, every state has strengthened its capability to help citizens care for and manage their natural resources and environmental policy. State governments have been very successful in recruiting citizens into various resource agencies who are capable and who are committed to conserving resources.

Local governments also have invested substantial amounts of tax dollars in hiring talented people who are committed to caring for the local environment in a variety of ways. This may involve managing a waste water treatment plant, re-engineering storm water systems to reduce impacts on the local streams and rivers, or providing good scientific information so that citizens can do their part to be good stewards of the environment.

In the federal government, environmental protection has come to mean little more than legislation, regulation and litigation. Never has this been more true than in recent years as we have been under constant assault from the federal government for not fining companies as much as they would like. From our perspective it appears that the federal government believes that fines against polluters are synonymous with environmental improvements. We know this is just one tool in measuring the effectiveness of enforcement, but unless problems are fixed and real improvements are made, then fines are meaningless. In Virginia, we are using a very different paradigm to pursue improvements to the environment. We believe that the traditional EPA "command and control, big central government, ever expanding bureaucracy must rule" paradigm is misguided and wrong - and its day may have come but it is now gone.

We know from experience that people everywhere want to achieve a better quality of life for themselves and their families. People in Virginia take very seriously the notion that government should be about providing people with the maximum opportunity to achieve their goals, and it should be limited in its reach and unambiguous in its role. Further, we understand that a growing economy and an improving environment are mutually dependent. This principle is supported by empirical evidence throughout history. Even those who continue to champion centralized government planning and control over peoples' lives have recognized the widespread understanding and acceptance of this principle by the people themselves.

When Governor Allen took office in Virginia in 1994, he instituted a plan to streamline the state government, update our regulatory regime, improve our government's service to the citizens of the Commonwealth, and carry out the law.

For our largest environmental agency, the Department of Environment Quality, I translated that broad philosophical plan into decentralization of agency personnel; providing real decision-making authority to the decentralized staff in addition to the paperwork responsibility they already had; and emphasizing compliance with the laws and regulations as the first priority to achieve beneficial results for the environment. My experience tells me that an empowered staff that work closely with the people to help them understand and achieve compliance with existing laws and regulations can tangibly improve the environment.

Perhaps even more important in assuring long-term improvements to our environment, we changed the DEQ from an EPA-driven traditional media/program specific structure to a functional structure. This meant that the organization re-focused on permit writing; inspections and compliance; monitoring and evaluation; and enforcement. Each functional area includes staff with background and training in air, water, and waste; cross-media. This is simply a logical way in which to provide a more effective approach to environmental challenges. Both the decentralization of power, authority and resources, as well as the functional structure were dramatic changes for Virginia's environmental agency. The command and control bureaucrats in the central establishment that had been growing larger and more powerful did not readily accept these changes. Nor were these changes readily accepted by mid-level managers who saw their previously growing power now flow to public servants on the front lines eager to be problem solvers.

However, many professionals in the regions as well as talented and committed professionals in the agency's central office saw the benefits of this new concept and have been tremendous assets in demonstrating that this is the direction environmental management should take. Virginia's DEQ is now focused on achieving results that benefit the environmental quality of the Commonwealth, identifying site and situation specific challenges and tackling them individually rather than from a "one size fits all" regulatory standpoint. The agency is also free to direct more resources to developing good scientific standards. An important by­product of this philosophy is that our field agents, by living in these communities, have a vested interest in promoting a clean, safe environment.

Under the newly structured DEQ, the regions have the lead responsibility and authority for water and air permitting and for inspections, compliance, monitoring and evaluation. They provide some technical assistance to the regulated community and respond to public concerns. They can draw on additional technical and scientific assistance in the central office. The central office now provides assistance to the regional staff instead of oversight and concentrates on developing broad policy and coordinating for consistency. Additionally, in the central office are housed programs that cross state lines and regional lines such as the Chesapeake Bay program office and the Ozone Transport Commission.

The first line of enforcement for Virginia is now the consent order. Dollars invested resulting in real improvements to the environment are dollars much better spent than those sent to the U.S. Treasury as “fines.” This is not an entirely new policy in Virginia. Some of you may have heard of the Smithfield case. (Smithfield agreed to a consent order with Virginia in 1991 — with EPA fully knowledgeable about the contents of the agreement and silent about it from 1991 until 1996. Virginia had done the investigation to find criminal and civil violations, referred the information to the relevant legal agencies for litigation, and agreed to delay our civil action against the company at the request of the Department of Justice until they completed their criminal prosecution. In each instance, the Virginia state government did its work, did it well, and achieved success. The federal government was to secretly prepare a civil case, since Virginia had been praised for its help in their criminal case, and proceed to file six weeks before the Presidential election in 1996 in an obvious political act.) Notwithstanding this overt abuse of power, the consent order is effective and results in measurable improvements to the environment in agreed upon methods and timetables. Responsible use of consent orders allows the regulator and the regulated community to work together to achieve what is supposed to be our goal: improving the quality and condition of our environment,

You may ask, how have our changes worked? Well, perhaps the ultimate test lies in the condition of the environment. As we have been able to demonstrate in the last few years, not only are Virginia's taxpayers getting more efficient use of their tax dollars, but they are also enjoying an environment that is clean and getting cleaner.

This has been recently confirmed by the fact that three of four non-attainment areas for air quality qualified for reclassification to "attainment;” ninety-five percent of the nearly 30,000 miles of rivers and streams DEQ monitors meet federal standards for fishable and swimable; we have eliminated the most serious environmentally threatening tire piles and successfully recycled over four million tires since

1994; the backlog of repayments for clean-up of thousands of leaking underground storage tanks the Allen Administration inherited three years ago has been completely eliminated and we have moved to science-based risk assessments of UST sites; blue crabs, croakers, and rockfish abound in our waters; and deer and wild turkey populations are larger now than they were in the 1950s.

This new approach to environmental management also has led to widespread customer satisfaction and has been a great help to state administrators in developing and implementing policies that make sense for each region of the state. It has given Virginia both a national and international reputation of efficient and timely permitting; fair application of common sense laws and regulations; and a willingness to work with businesses so that Virginia will continue to have a growing economy and an improving environment.

Whether or not the EPA likes it, the states have taken the lead in presenting fresh, innovative solutions to resolving environmental problems, from environmental audits to voluntary remediation. The importance of a safer, cleaner environment is recognized by all and is represented by a stronger commitment to science and alternative solutions. Just as in Virginia, Governors from around the nation are looking at ways to better serve their citizens while making substantive improvements to the quality of their natural resources. The states' proven ability to govern themselves environmentally begs for an answer to the question: What should the federal Environmental Protection Agency's job be under this new regime?

The EPA should recognize that the real environmental work is being done in the states, not at the federal level. To justify their continued involvement at the state level, the EPA continuously questions the effectiveness of state monitoring and enforcement programs. In Virginia, we realize that our programs are making a difference in the lives of our citizens. If, however, the EPA isn't convinced that we are abiding by federal standards, they will launch investigations and inspections, and ultimately they may even threaten to withhold federal grants. They spell out in painful detail the laws that our elected legislators must enact in order to meet the bureaucrats' approval. (Examples are I/M 240, Audit bill, Vol. Remediation, Title V)

This brand of federal intrusion and harassment currently engaged in by the EPA goes to the very heart of our federalist debate. The principle of federalism is a thread woven into every bit of the fabric of the Constitution. It is summed up in the 10th Amendment, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to states respectively, or to the people."

The lawful acts of Congress require that the states undertake deeds to accomplish reductions in air pollution, water pollution, etc. Agencies of the federal government, contrary to the principles of federalism insist that we impose what we in Virginia believe to be unwise mandates on our people and local governments. Now that the best work is being done by the states, the federal government can be of tremendous help to us by offering assistance. Offer the states solutions to problems and develop science-based standards, rather than continually coming up with unscientific reasons for ongoing involvement in one state issue or another.

Other roles the EPA could usefully play in the new paradigm include (1) identifying scientific standards for the Congress to enact by statute; (2) providing technical assistance for problems that would not be found in states on a regular or ongoing basis; (3) assuring federal government compliance with the environmental laws and regulations; and (4) facilitation of meetings between states and in regions or on areas of common interest or concern.

Ultimately, however, Virginia's struggle with the EPA is not about clean air or water -it is about the liberty of the states and the liberty of the people. The Constitution is designed to assure the liberty of the people. The essential device upon which that liberty rests is federalism. If the federal government is to honor its Constitutional commitment, then the federal government must leave to the states the authority to decide for themselves how they will further the blessings of liberty.

In the area of the environment and natural resources, I believe such a decision is best for all.

Please come and see us in the Old Dominion! And all best wishes as you participate in this changing world of environmental management.

Thank you.