by Karl Coplan

The principle environmental regulatory programs in the United States work on a principle of cooperative federalism. Congress passes a regulatory statute such as the Clean Water Act; EPA adopts detailed regulations setting standards and implementing the program, and states have the option of taking over administration and permitting within each state, as long as the state program complies with the federal regulations. Oh, and by the way, state implementation usually comes with federal grant money.

A key element in the environmental regulatory paradigm is citizen participation: Congress knew that the pre-1970s model, where only the agency and the industry were at the table, was a failure. That’s why Congress, in CWA section 402(b), required that states with delegated Clean Water Act permitting programs include provisions for citizen participation in permitting decisions. EPA regulations likewise require that, to be approveable, a state permitting program must provide for citizen access to courts for judicial review of permits. So while the federal EPA sets the environmental standards through national rulemaking, the state agencies administer the permits in a multilateral system, and the state’s courts backstop the agency through judicial review of permitting decisions.

Now, the Wisconsin Supreme Court has thrown a monkey wrench into this multilateral model of environmental federalism, holding in Anderson v. Department of Natural Resources that the DNR had no obligation to consider an environmental group’s objections that a proposed permit violated EPA regulations. The regulations in question, by their terms, specifically apply to state permitting programs.

According to the Wisconsin Supreme Court, the only way to enforce these regulations is for EPA to exercises its Clean Water Act section 402(d) veto authority, or for the citizens to seek a remedy in federal court. Since federal courts have no jurisdiction to consider challenges to state-issued permits, and since federal courts have sharply limited judicial review of EPA’s decision to decline to veto a permit, this holding effectively writes citizens out of the state permitting process, at least when it comes to enforcing federal standards.

And if the Wisconsin DNR decides to be less cooperative with the federal program, citizens in that state can line up with the citizens of several other states seeking de-delegation of CWA permitting programs for failure to meet federal standards.