Carper Speaks on Cooperative Federalism, Clean Water Act Section 401 at Gathering of State Regulators

ARLINGTON, Va. – Today, Senator Tom Carper (D-Del.), top Democrat on the Environment and Public Works Committee (EPW), spoke at the 2019 Spring Meeting of the Environmental Council of the States (ECOS) on the topic of advancing states’ collaboration with the federal government on issues of environmental protection. During his remarks, Senator Carper highlighted ways in which the Trump Administration has either ignored state’s environmental priorities or actively reduced the power of governors to protect their own air and water, despite the Administration’s professed advocacy for cooperative federalism.

Today’s speech comes amid early reports that President Trump intends to sign an executive order limiting states’ voices in the permitting of interstate pipeline construction under section 401 of the Clean Water Act.

“We will all need to stand by a commitment to this federal-state partnership,” said Senator Carper. “I—and I’m sure you—see many other instances where cooperative federalism and respect for States’ rights doesn’t mean the same thing to this Administration as it does to those of you who are actually doing the work of environmental protection.

Senator Carper continued, “It’s pretty clear to me, for example, that EPA and the U.S. Army Corps of Engineers plan to erode states’ abilities to assert their rights and protect their waters under section 401 of the Clean Water Act, which allows states to modify or deny federal permits that do not adequately protect state waters or allow them to achieve their water quality standards.”

Below are Senator Carper’s remarks, as prepared for delivery:

“Thank you, Becky, for your kind introduction.  I also appreciated your recent testimony before our EPW Air and Nuclear Safety Subcommittee—replete, as I recall, with analogies to car windshields and rearview mirrors. Speaking of cars and reflecting on your kind invitation to speak about some of the priority issues facing the Senate Environment and Public Works Committee in the coming year, I wanted to express my appreciation to ECOS for urging Andrew Wheeler to respect the State of California’s Clean Air Act waiver. That waiver allows California to promulgate and enforce stronger automobile air emissions standards than established by EPA.  Embracing the tenants of cooperative federalism, you also made sure EPA recognized that Congress explicitly authorized States, such as Delaware, to adopt the standards California established.

“As a recovering Governor, I fully appreciate the value of cooperative federalism and celebrate ECOS’ efforts to make that philosophy work better through its ‘Cooperative Federalism 2.0’ initiative.  After all, state environmental agencies assume implementation responsibility of more than 90% of federally established/state-authorized environmental programs. These state actions are the backbone of our nation’s environmental protection system today.

“We will all need to stand by a commitment to this federal-state partnership.  I—and I’m sure you—see many other instances where cooperative federalism and respect for States’ rights doesn’t mean the same thing to this Administration as it does to those of you who are actually doing the work of environmental protection. 

“It’s pretty clear to me, for example, that EPA and the U.S. Army Corps of Engineers plan to erode states’ abilities to assert their rights and protect their waters under section 401 of the Clean Water Act, which allows states to modify or deny federal permits that do not adequately protect state waters or allow them to achieve their water quality standards. 

“Perhaps the Western Governors’ Association and several state water-related organizations said it best in a letter to House and Senate leaders sent on August 9, 2018, and I quote: ‘Curtailing or reducing state authority or the vital role of states in maintaining water quality within their boundaries would inflict serious harm to the division of state and federal authorities established under the Constitution and recognized by Congress in the CWA.’

“States sometimes just don’t have what it takes to keep their waters drinkable, their air healthy, and their climate viable.  And as hard as it is for me, as a former Governor, to admit, sometimes States just need help.  EPA’s help. When I was Governor, I could have shut down Delaware’s entire economy—every power plant, every factory—and banned every car, truck and bus from our highways, and we still would not. . . could not. . . achieve healthful air quality in our state.  We appealed for EPA’s help to force upwind utilities to simply turn on control equipment they had in place to help reduce the transport of their pollutants into our State.  To no avail. 

“I offer this as a cautionary tale, because that unfortunate reality may befall many of you—on issues of air and of water quality. As you all surely know, EPA proposes to redefine the waters of the United States (or WOTUS) to eliminate Clean Water Act protections for many far-upstream stretches of waterway that may only carry water after precipitation events or just flow intermittently during the course of a year.  The proposed rule would also exempt from Federal protection more than half the Nation’s wetlands—those that lack a direct connection to protected streams, rivers, lakes and estuaries.

“So, there would be no permits for industrial facilities that discharge wastewater into these places; no permits for draining, dredging or filling these wetlands; indeed, no restrictions whatsoever on what happens to these resources, which believe me, are connected to the waters in your states. Yes, there will be cost savings to those developers and industrial dischargers—operating upstream—who will no longer require technology and permits to reduce pollution from their activities.  But, there will be additional costs to you, your state, your citizens and your economies.  All of us downstream from these potentially unprotected waters will face increased pollution, which our water treatment facilities must clean up; our fish must endure; and our brewers can’t brag about.

“So, what about cooperative federalism?  Can’t States exercise their rights under the Clean Water Act to provide protection where the Federal government will not?  The EPA says yes, but the legislatures in 26 of your States say otherwise—either prohibiting you from imposing stronger standards than the Federal government sets or imposing substantial hurdles to any such attempt. This is a troubling situation. 

“I invite you to work with my staff and me and with the elected officials in your states to figure out how we can define our collective environmental mission.  I’d suggest we do so not by arguing about different regulatory philosophies, but rather by drawing on our common understanding that caring for the environment and the health of our citizens—indeed being good stewards of all creation—is our moral obligation.

“Let us all bring to this critical work the urgency the health of our people, our environment and our world deserve. Thank you for all that you do.”

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