Since the United States is a large and diverse nation, it has been a challenge to allocate horizontal and vertical responsibilities for enforcing pollution control laws. Governmental sub-units are divided geographically, and Government agencies are divided functionally but those duties may overlap or fail to meet. It is also necessary to differentiate vertically among different levels of government, the topic presented here. This is particularly true as the U.S. is a federal nation. There will always be tension between the national goal that there be consistency or harmonisation of approaches throughout the nation, and the universal recognition that local people closest to an environmental problem often bring greater concern, insight, and energy to solving it.
The U.S. Constitution of 1789 established the framework relationship between the sub-national States and the national government. While it is supreme and above the States in functions or fields of competence such as interstate commerce, in many fields State Governments have retained their traditional powers and residual sovereignty. In the U.S., the relationship between (1) upper-level, national Government and (2) lower-level State Governments is not unitary. U.S. States operate with three branches of Government similar to those of the national government. In fact, many state and local Governments have legislative authority to protect the environments (e.g., through their Constitutions, statutes, or ordinances). This authority is not necessarily trumped by federal authority, although issues of national preemption and supremacy do arise. Indeed, much enforcement happens at the local and state levels without the federal Government becoming involved, and many federal pollution-control statutes allow states to take the lead. So rather than picture the national Government as always placed above the States, it is perhaps more accurate to see the national and State Governments as often operating side-by-side or in parallel – and more in partnership than in a hierarchy.
The division of enforcement responsibilities for pollution control between the national Government and the 50 States has required national leadership and a well-planned decentralization. This has been achieved by applying several tools of environmental federalism, including:
- 1. National legal authority clarifying what level of sub-national (i.e., State) authority is allowed, required, or retained for standard setting, compliance monitoring, and enforcement (including prosecution);
- 2. National approval procedures for the qualification of sub-national programmes to assume responsibility for administering and enforcing federally mandated environmental laws (usually these procedures have requirements regarding the sub-national legal authority and programme resources including trained staff able to implement them);
- 3. National support mechanisms to encourage sub-national units, including capacity building, training, and grants of funding to help implement programmes;
- 4. National oversight mechanisms, performance standards, and reporting requirements for sub-national units (see case study following Guideline 42(a)
on “State/EPA Enforcement [Performance] Agreements”), and consequences for sub-national failures to perform; and
- 5. Intergovernmental dispute resolution mechanisms for resolving tensions inherent in federalism.
Since 1970, U.S. national pollution-control laws have been written and applied recognizing the advantages of a high degree of decentralization (Accordingly, the laws provide mechanisms for devolving much national authority to the States) and also the role for a central, federal administrative agency. The U.S. Environmental Protection Agency (USEPA) has its headquarters in Washington, DC. Below it hierarchically are ten USEPA “Regional Offices,” each one of which works with about five States. (There is not space here to discuss smaller sub-national units, including counties and local Governments, or tribal Governments of the Native American nations.) Some national functions have not been fully shared or devolved (including scientific research and development, standard-setting based on scientific findings, information management, planning and tracking of performance, and control of inter-jurisdictional or trans-boundary issues. But for many, perhaps 80% of USEPA programs including pollution-control enforcement, State agencies have the opportunity to exercise the primary authority. For most States, achieving such a voluntary partnership with the national Government has been a major reason for the successful application of environment enforcement measures throughout the country. However, unlike many other federal nations, the national Government does not entirely cede the enforcement function to the sub-national units; instead, USEPA shares enforcement, retaining the authority and the resources to enforce directly against violators when a State fails to take timely and appropriate enforcement action.
For more information, see http://www.epa.gov/epahome/organization.htm
Moreover, in the United States, other agencies are given responsibility for the enforcement of natural resources laws, including fisheries, wildlife, forests, and other resources. All of these agencies may refer matters for judicial enforcement to a special unit within the Department of Justice (see case study on “Specialized Environmental Administrative Tribunals and Prosecutors in the United States” following Guideline 41(a)(v)).