Modern environmental policy developed in the 1970s as environmental protection became a national political concern. Prior to that time, most environmental responsibilities were left in the hands of state and local governments, if they were addressed at all. Yet beginning in 1969, Congress enacted a series of sweeping federal statutes to regulate environmental quality at the national level. All but a few federal environmental responsibilities were centralized in a single agency, the U.S. Environmental Protection Agency (EPA), empowered by new laws to protect the air, water, and soil.
Most of the early federal environmental programs seemed to work well. Whether or not they generated the greatest environmental bang for the buck, many indicators of environmental quality improved significantly in the succeeding 25 years. The gains were sufficiently substantial that few raised questions of cost so long as the air and water were getting cleaner. To many, environmental policy was one of the few areas where federal programs clearly worked.
Today, however, the consensus in favor of a centralized, national approach to environmental policy is disintegrating. Environmental analysts, government officials, and activists across the environmental spectrum are calling for greater local control in environmental policy and are looking to places other than Washington, D.C., for solutions to environmental problems.(1) State officials are particularly aggressive. In 1994, several state environmental agency heads formed the Environmental Council of the States (ECOS) to lobby for greater state flexibility. "State environmental leaders could no longer stand by and let EPA take the lead," explains Mary Gade, Director of the Illinois Environmental Protection Agency. "States were quite simply 'Fed up.'"(2)
The reason for the disintegrating consensus is straightforward: the basic policy framework enacted in the 1970s does not serve America well in the 1990s. Costs have escalated to the point where Americans now spend well over $150 billion complying with environmental regulations, and the results are dwindling. Some laws, such as Superfund and the Endangered Species Act, are outright failures, at times exacerbating the environmental problems they were meant to solve. As regulatory commands have piled upon bureaucratic controls, the system has neared a breaking point. In the words of law professor Richard Stewart of New York University, "The system has grown to the point where it amounts to nothing less than a massive effort at Soviet-style planning of the economy to achieve environmental goals."(3)
Of particular concern is the ability of a national, centralized regulatory structure to address environmental problems that are largely local and regional in nature. The EPA's Scientific Advisory Board concluded in 1990 that most remaining environmental problems "are site-specific, varying from area to area and requiring tailored controls at the regional, state, or local level for effective mitigation." Yet current programs fail to allow state and local governments sufficient flexibility in tailoring their programs to local needs. According to the United States Advisory Commission on Intergovernmental Relations, "Federal rules and procedures governing decision-making for protecting the environment often are complex, conflicting, difficult to apply, adversarial, costly, inflexible and uncertain."(4)
State and local officials increasingly complain that federal laws and regulations force them to implement environmental programs that make little sense in their part of the country, diverting resources from more pressing concerns. As a Columbus, Ohio, health official said a few years ago, "The new rules coming out of Washington are taking money from decent programs and making me waste them on less important problems."(5)
State environmental agencies must follow federal dictates governing minute details of regulatory programs that are not simply for pollution control purposes. …