Publications: State Government Relations
EPA and State Environmental Agencies: Reversing Roles

A remarkable change is going on in the way that environmental protection is achieved. More and more, states, rather than the U.S. EPA, are asserting a greater role. This shift, some of which has already occurred and more of which is yet to come, could have a remarkable impact on the way that environmental attorneys practice law and certainly on the manner in which the regulated community will have to comply with environmental requirements.

One of the best illustrations is the state environmental audit privilege movement. In 1993, Oregon became the first state to codify a privilege for environmental audits. Since then, 17 additional states have enacted privilege laws. In 1996, 25 more introduced legislation to enact privilege laws in their states. In response, EPA has threatened approval of agency authorization of state permit programs under Title V of the Clean Air Act. (For a discussion of EPA’s audit policy, including the agency’s refusal to support an audit privilege, see Environmental Compliance and Litigation Strategy, Feb. 1996, p.1.)

Another important advancement by states has occurred in the brownfield arena. In 1988, Minnesota amended its Superfunds statute. The intent of the amendment was to use an incentive approach to encourage voluntary cleanups rather than focusing on federally blessed command-and-control measures. The resulting voluntary cleanup program became a model for state innovation in the site remediation arena. States around the country began similar innovative policymaking. EPA jumped on the bandwagon by developing its action agenda, consisting primarily of federal administrative reforms and funds to support state efforts.

What’s Next?

As environmental duties shift from a federal-lead to a state-lead responsibility, the regulated community and its lawyers have been presented with a new opportunity to help craft palatable environmental requirements--but only if they are aware of the trend and put it to use.

Mark Anderson is the Manager of Environmental Programs at Stateside Associates. The above is an excerpt from "EPA and State Environmental Agencies: Reversing Roles" which was published in the Environmental Compliance & Litigation Strategy, August 1996 Issue.

- Mark D. Anderson. Published 1997