Expect More Lawsuits if EPA Defers to States on Water Enforcement

By Amena H. Saiyid

Letting resource-strapped states take the lead on policing water pollution will trigger more lawsuits from environmental advocacy groups accusing the EPA of failing to keep waterways clean.

Environmental Protection Agency enforcement officials say they want states to take the lead as part of a push to give local officials co-regulator status.

Environmental groups counter that states lack the staff and resources to carry out inspections and to enforce federal water, air, and solid waste laws. Deferring to states will draw more lawsuits from advocacy groups that argue it is the EPA’s responsibility to protect the environment.

“I am very troubled that the EPA is planning to scale back its enforcement by being more deferential to states,” Daniel Estrin, general counsel and advocacy director for Waterkeeper Alliance, said Dec. 5 at a panel discussion on trends in citizen lawsuits during a Clean Water Act seminar in Washington.

Attorneys and advocates discussed federal enforcement across a series of panels at the American Law Institute-Continuing Legal Education and the Environmental Law Institute seminar in Washington.

States Taking the Lead

The EPA is urging state regulators to consider taking the lead on environmental cases within their boundaries, Patrick Traylor, deputy assistant EPA administrator for enforcement and compliance assurance, said at the seminar.

If the states lack the resources, the agency would step in, Taylor said.

But J. Tom Boer, a Hunton & Williams LLP attorney who previously served in the Justice Department and the EPA Office of General Counsel, said enforcement can vary from state to state.

Most states already are authorized by the EPA to implement the Clean Water Act discharge permit programs, Julia Anastasio, executive director of the Association of Clean Water Administrators, said. Citizens and the EPA will prevent states from shirking their enforcement duties, she said.

“They will keep us honest,” Anastasio said of the EPA’s role. “They will remind us of our duties when we fall back.”

States rely on the federal government for a third of their funding, she said.

Environmental groups will have to keep an eye on federal enforcement especially if the EPA fails to perform its mandatory duties under the Clean Water Act, Estrin said.

“You will [have] conservation groups looking for opportunities to force the administrator to act where the statute requires,” he said.

Recently, the Waterkeeper Alliance sued the EPA for failing to approve New York State’s water quality standards for fecal coliform indicators. In another lawsuit, environmental groups are trying to compel the EPA to write West Virginia’s water quality standards for conductivity after the state failed to write its own.

States ‘Captured’ by Industries

Estrin said the groups fear that state environmental agencies are less likely to enforce environmental laws against industries that wield economic and political clout in states. As examples, he cited the concentrated animal feedlots in North Carolina or the oil and gas industries in Louisiana.

But LaJuana S. Wilcher, a partner with Bowling Green, Ky.-based English Lucas Priest & Owsley LLP, defended the integrity of state environmental officials, whom she described as hard-working individuals.

“There were no sweetheart deals,” said Wilcher, who led Kentucky’s Environmental and Public Protection Cabinet from 2003 to 2006. “The three years I served I was under no political pressure to make enforcement decisions.”