Symposium to Tackle Environmental Federalism

Tyler Jerrell '18
Guest Columnist

On January 1, 1970, Richard Nixon signed the National Environmental Policy Act (NEPA) into law.  NEPA’s stated purpose was to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment . . . .”  

NEPA was not the first federal law to address environmental concerns.  The Conservation movement won federal legislative victories in the early 20th century through the establishment of national parks and passage of land protection laws like the Antiquities Act.  Additionally, earlier laws such as the first Clean Air Act of 1963 and the Federal Water Pollution Control Act of 1948 brought regulations to specific environmental concerns in a more piecemeal fashion.  

In contrast to these previous laws’ limitations, NEPA’s broader policy declaration would become the beginning of a series of environmental controls by the federal government throughout the 1970s, including creation by executive order of the Environmental Protection Agency in 1970, passage of the Clean Water Act in 1972, amendments to the Clean Air Act in both 1970 and 1977, and passage of the Endangered Species Act of 1973.  These laws, and the popular environmental movements that supported them, helped promote a paradigm of environmentalism that focused on strong, uniform federal protections that applied throughout the country.

Since the beginning of this year, however, the new administration has signaled through rhetoric and action that it will move away from this paradigm and towards deregulation of federal environmental protections.  In only its second executive order, issued on January 24, the administration directed federal review and approval of the Dakota Access and Keystone XL Pipelines.  Two months later, a March 28 executive order emphasized deregulation of energy development on federal lands.  This was followed later, in June, by the public announcement to withdraw the United States from the climate goals of the Paris Agreement.  More recently, the EPA announced its intention to repeal the 2014 Clean Power Plan. 

In response to these policies, other groups have pledged to uphold environmental protections in the absence of federal oversight.  Attempts to deregulate the energy sector are being met with legal challenges by non-profit groups and are being opposed by some state and local governments.  Additionally, governors of fourteen states, including Virginia, have joined the bipartisan United States Climate Alliance and, together with pledges from nine other states, remain committed to fulfilling the aspirations of the Paris Agreement.  

Meanwhile, private businesses have risen to satisfy consumer demands for renewable energy despite the absence of federal regulatory mandates to do so.  Walmart’s “Project Gigaton,” announced in April, aims to reduce the greenhouse gas emissions of its supply chain, while Facebook recently announced plans to construct a datacenter in Henrico County that will rely on renewable energy for its operation.

Although the success and impact of these actions remains to be seen, they nevertheless lead one to ask: if state and local governments, with the cooperation of non-profits and private business, could have the means and capability to protect the environment on their own, would federal laws and regulations toward that same end be necessary?  

On Thursday, October 19, the Virginia Environmental Law Journal will host its symposium Whose Mess Is It? Federalism and Environmental Regulation in a New Political Climate to consider this potential paradigm shift through issues that impact closer to home.  

One panel, co-sponsored by the, will focus on the Center for Oceans Law and Policy Chesapeake Bay Program, an agreement between six states, the EPA, and the District of Columbia to cooperate on reducing the pollution of the waters feeding the Chesapeake Bay.  The panel will examine how the program’s specific requirements, including the role played by the EPA, and successes have varied since it was first created in 1983.

A second panel, co-sponsored by the Virginia Environmental Law Forum, will discuss the federal leasing and exploration of offshore fossil fuel resources.  While this program occurs under federal waters, as was seen by the 2010 BP oil spill, negative externalities associated with environmental degradation are felt most acutely on state-controlled coasts.  Coastal cities and states in the southeast have seen growing opposition to expanding these leases as the environmental and economic impacts of offshore energy development become more fully known.

A final roundtable will bring together legal scholars to discuss these issues: Caroline Cecot of the Antonin Scalia Law School, Michael Livermore of the University of Virginia School of Law, and Hannah Wiseman of the Florida State University College of Law.  These scholars will build on prior topics as well as the history, politics, and policy of environmentalism and federalism in order to consider the most effective role the federal government should play in protecting the environment.

Lunch will be provided by Brazos Tacos.