Global S&T Development Trend Analysis Platform of Resources and Environment
| DOI | 10.1126/science.abf8885 |
| A water rule that turns a blind eye to transboundary pollution | |
| David A. Keiser; Sheila M. Olmstead; Kevin J. Boyle; Victor B. Flatt; Bonnie L. Keeler; Catherine L. Kling; Daniel J. Phaneuf; Joseph S. Shapiro; Jay P. Shimshack | |
| 2021-04-16 | |
| 发表期刊 | Science
 |
| 出版年 | 2021 |
| 英文摘要 | Debates about the decentralization of environmental policy are important and are far from resolved ([ 1 ][1], [ 2 ][2]). Interregional spillovers provide one key justification for centralized regulation: When regulation is decentralized, individual jurisdictions may not protect downstream or downwind neighbors from their pollution ([ 2 ][2], [ 3 ][3]). Under the Trump administration, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (ACE) departed from precedent to support the deregulation of US waterways in the repeal of the 2015 Clean Water Rule (CWR) and its replacement with the 2020 Navigable Waters Protection Rule (NWPR). In doing so, they assumed (with little evidence) that many states would fill gaps in federal oversight. With the Biden administration having signaled its intent to modernize regulatory review and to review specific deregulatory actions taken by the Trump administration, we describe here how this environmental federalism approach downplays the importance of cross-state pollution and relies on flawed methods of benefit-cost analysis that could be used to weaken other statutes.
Early federal laws that allowed states to lead in setting environmental standards were replaced in the 1970s by a stronger role for federal regulation. Landmarks in this policy shift include the Clean Water Act (CWA) and the Clean Air Act (CAA). But the scope of waters protected under the CWA has been controversial. Unlike many environmental regulations, the CWR promulgated during the Obama administration did not propose new environmental standards. Instead, it sought to define the characteristics of water bodies that are subject to a variety of regulations under the CWA—those that are considered “waters of the United States” (WOTUS)—with a particular focus on those waters in the legal gray areas that have prompted litigation over the past several decades. These include small headwaters, “isolated” wetlands, and ephemeral and intermittent streams. WOTUS jurisdictional definitions determine which water bodies are subject to CWA regulations, affecting agricultural operations, construction and land development projects, and other activities that involve such actions as filling of wetlands or increasing runoff of water pollutants into the bodies of water in contention.
The Trump administration repealed and replaced the CWR with the NWPR, narrowing the CWA's jurisdictional reach. Although exact magnitudes are subject to debate, a 2017 analysis by EPA and ACE suggests that the NWPR excludes 18% of streams (35% in the arid West) and just over one-half of wetlands nationwide ([ 4 ][4]). This action had a weak scientific basis, as many of the excluded waters are connected biologically, chemically, and hydrologically to protected waters downstream ([ 5 ][5]).
The economic basis for the NWPR is also flawed. In their analyses, the agencies argued that removing protection from the newly excluded waters would generate net economic benefits because states may be better regulators of “local environmental public goods” ([ 6 ][6], [ 7 ][7]). The analysis represented a marked shift to decentralized decision-making that downplayed transboundary impacts—the scientific and economic basis on which the federal role is predicated ([ 8 ][8]).
For the first time since 1975, the NWPR eliminated “interstate waters” as a standalone category of federal jurisdictional waters. Interstate waters could still be under federal jurisdiction, but only if they met the requirements of a covered standalone category such as traditional navigable waters, their tributaries, and adjacent water bodies. But, for example, according to the rule, any ephemeral or intermittent stream that crosses state borders or any such stream that feeds into interstate waters would no longer be under federal jurisdiction.
The agencies' analyses implied that the interstate impacts of the NWPR's changes would be minor. In contrast, economic theory and empirical evidence suggest that devolving regulatory authority from the federal government to states can result in weaker-than-optimal regulation when pollution crosses state boundaries ([ 2 ][2]). Indeed, the agencies noted this finding but downplayed its importance ([ 7 ][7]). Because affected waters are connected to downstream waters, and because many state boundaries are arbitrary with respect to watershed boundaries, the narrowing of CWA jurisdiction would likely increase interstate water pollution. The magnitude of such impacts is critical to assessing the validity of the agencies' federalism arguments, yet they performed no such analysis. Moreover, the economic analysis was internally inconsistent on this point. The agencies implemented three “case studies” to examine how the NWPR would affect a range of CWA programs ([ 7 ][7]). Yet all three case-study watersheds cross multiple state boundaries, highlighting that such boundaries do not constrain water pollution.
Following directly from the unsupported conclusion that water quality is a local public good, the agencies implemented a set of “federalism scenarios.” The agencies argued that if some states were to decide to regulate the waters over which the federal government abdicates jurisdiction, then estimation of the benefits and costs of rescinding federal protection should not include these states. The agencies suggested that this adjustment by some states “would result in no change in compliance costs… and no change in environmental benefits… suggesting no net impact in the long run” ([ 7 ][7]). In other words, the agencies assumed that if state regulations filled the gap left by federal regulations, overall costs and benefits would remain unchanged in the long run. But the agencies could only speculate about the future actions of states that are neither legally required nor likely to act—an approach that, to our knowledge, has no precedent in EPA regulatory impact analyses. EPA's own Guidelines for Preparing Economic Analyses say that only related state rules that are legally required but not yet implemented should be included when estimating benefits and costs ([ 9 ][9]). Public comments on the NWPR raised this very issue ([ 10 ][10], [ 11 ][11]). This EPA guidance ([ 9 ][9]) is based on the need for a meaningful counterfactual that is not subject to arbitrary manipulation. In fact, in recent air quality rules under the CAA, EPA noted that “normal practice is to only include changes…from final regulatory actions in its modeling because, until such rules are finalized, any potential changes…are speculative” ([ 12 ][12]).
If the agencies' basic assumptions about federalism in the NWPR were problematic, how did they apply these assumptions in their economic analysis? To implement the federalism scenarios in the NWPR, the agencies predicted state responses to the narrowing of federal water quality jurisdiction, using three indicators: (i) whether a state currently regulates any intrastate waters beyond federal waters as “waters of the state”; (ii) whether state law restricts regulation of waters outside of federal waters; and (iii) whether a state currently has a dredge-and-fill program under CWA Section 404, commonly known as the wetlands regulatory program. The agencies then removed groups of states deemed “likely to act” from their benefit and cost calculations, excluding 23 states that they predicted would fully subsume the federal role in one scenario, and excluding 31 states in the scenario that was most optimistic about hypothetical future state laws (see the figure).
These predictions are inconsistent with states' prior behavior. States have always been able to enact water quality protection rules more stringent than those in the CWA; it is unclear why they would do so now when they have not done so already. One prominent example is 32 states' challenge to the 2015 CWR in court, arguing that it would impose excessive costs. Inexplicably, the NWPR's economic analysis projected that 14 of these states would now change their position ([ 13 ][13]) (see the figure). Another example, from a different context, is states' reaction to a reduction in the CWA's jurisdiction over wetlands as a result of the Supreme Court's 2001 decision regarding the Solid Waste Agency of Northern Cook County. Almost 20 years later, only a few states have moved to expand their own jurisdiction over some of the affected waters ([ 14 ][14]). These precedents suggest that the agencies' contention that dozens of states would enact stricter water quality regulations upon the removal of federal regulation was excessively optimistic, or simply wrong.
![Figure][15]
Assuming state action, despite evidence to the contrary
This figure shows the 31 states that the agencies assumed will protect some or all of the streams and wetlands newly deregulated under the Navigable Waters Protection Rule (NWPR), despite evidence to the contrary. Best practices in benefit-cost analysis caution against this type of speculation about future state actions. Fourteen of these states, as designated in the figure, challenged the 2015 Clean Water Rule (CWR) in court ([ 13 ][13]); thus their future support for expanded protections would represent a substantial change in position.
GRAPHIC: K. FRANKLIN/ SCIENCE
A state-by-state review of relevant legislation, executive orders, and other documents provides additional support for our argument that the agencies' predictions of state behavior are unsound. Among 31 states that the agencies deemed likely to regulate newly unprotected wetlands, we identify at least 16 that should not have been included, using the agencies' own classification criteria [see ([ 8 ][8]) and supplementary materials]. In most of these cases, the agencies asserted that states may easily enact laws that exceed the minimum federal standard, but our analysis leads to the opposite conclusion. Many states require special legislative and administrative approval to pass environmental rules that are more stringent than corresponding federal law. For example, the agencies identified Indiana as a state that “does not have broad legal limitations” on regulating more stringently than the federal government ([ 6 ][6], [ 7 ][7]). Since 2016, however, Indiana has mandated that environmental rules more stringent than federal rules cannot go into effect until the legislature has had an opportunity to veto the more stringent state rules.
To describe the impact of this problematic speculation about future state laws on the agencies' economic analysis, we must clarify some terms. Because the NWPR reduces the share of US waters under federal protection, the NWPR's benefits are actually avoided costs of regulation that would still be in place but for the rule (e.g., avoided compliance costs for regulated entities). Its costs, in contrast, are actually the forgone benefits from protecting wetlands and streams (e.g., lost wetland acreage) that the CWA no longer covers because of the NWPR. Thus, as a deregulatory action, the NWPR's net benefits are its avoided costs minus forgone benefits. In addition, because the CWR had already been repealed, the baseline for the agencies' economic analysis in the NWPR was the definition of WOTUS that predated the CWR [([ 7 ][7]), p. xi].
Using data from the economic analysis for the NWPR ([ 7 ][7]), we calculate the national net benefits (avoided costs minus forgone benefits) of the rule. When benefits and costs for all states are included, net annual national impacts range from a $310 million loss to a $484 million gain (table S1). When the agencies zeroed out 31 states in their economic analysis of the NWPR, assuming that these states would adopt protections equivalent to those being removed, net annual national impacts range from an $83 million loss to a $208 million gain. The overall effect of the agencies' federalism analysis is to decrease the extent to which the rule could be costly while maintaining an upside estimate that is favorable to the NWPR.
To further explore the issue, we calculate the net benefits (avoided costs minus forgone benefits) of the NWPR by state (table S2). We find that nearly half of the forgone national benefits from the agencies' narrowing of the CWA's scope are attributable to excluding a single state: Florida. Florida's share of the NWPR's national avoided costs, in contrast, is only about 10%. Florida is one of only two states for which the forgone benefits of the NWPR exceed the avoided costs (for an annual economic loss of more than $45 million) (table S2). Thus, when the agencies speculated that Florida would step in to regulate where the federal government does not, the result was extremely favorable to the NWPR. Yet our analysis suggests that the agencies miscategorized Florida as a state that is likely to take over the federal role for the newly excluded streams and wetlands (see supplementary materials). This would require a reversal of the state's recent stance on these issues, given that Florida joined 31 other states in litigation against the 2015 CWR.
The conflicts between EPA's own guidance and its NWPR analysis, between its speculation about state actions under the CWA but not under the CAA, and between the conclusions of the economic analyses of CWA rules under the Obama and Trump administrations are likely to be legal hurdles for the staying power of the NWPR. In the US, the Administrative Procedures Act requires a “reasoned explanation” for rulemakings like the CWR repeal and replacement and prohibits rules that are “arbitrary and capricious.” Failure to meet these requirements has caused federal courts to reject many Trump administration policies since 2017, including the administration's initial suspension of the CWR ([ 15 ][16]).
Where does this leave important debates about the appropriate locus of environmental regulation? The agencies' flawed estimates do not provide a clear picture. However, the best available scientific and economic evidence suggests that the federalism argument should not be used to support the NWPR's removal of a large share of US waters from CWA protection. The federalism arguments in the NWPR, although unconvincing in that setting, may have implications for other federal environmental statutes in which debates about state versus federal control are germane, such as the CAA's designation of nonattainment areas or the Safe Drinking Water Act's maximum contaminant level standards.
The agencies' economic analysis for the NWPR violated basic tenets of benefit-cost analysis and EPA's peer-reviewed guidelines, with no known precedent in federal rulemaking. The federalism analysis contravened the best available knowledge in the peer-reviewed economics literature to such a degree that the analysis can be considered arbitrary. Because the approach strongly affects the results of the benefit-cost analysis, it also opens the agencies and the process of regulatory impact analysis to concerns about strategic manipulation.
Although it is incorrect to speculate that dozens of states will fully subsume a rescinded federal environmental protection role, it can also be unrealistic to assume that no states will do so. This is why EPA's Guidelines carefully define the thresholds for anticipated new state rules to be incorporated into benefit-cost analysis ([ 9 ][9]). Given prominent, persistent political debates over environmental federalism, it may be useful to revisit this aspect of the EPA Guidelines. Extensive, peer-reviewed theoretical, experimental, and observational research may yield a better understanding of the conditions that favor federal versus state jurisdiction in environmental policy development. Such policy tension can be productive to the extent that it motivates new research needed to support improved decision-making.
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| 领域 | 气候变化 ; 资源环境 |
| URL | 查看原文 |
| 引用统计 | |
| 文献类型 | 期刊论文 |
| 条目标识符 | http://119.78.100.173/C666/handle/2XK7JSWQ/322880 |
| 专题 | 气候变化 资源环境科学 |
| 推荐引用方式 GB/T 7714 | David A. Keiser,Sheila M. Olmstead,Kevin J. Boyle,et al. A water rule that turns a blind eye to transboundary pollution[J]. Science,2021. |
| APA | David A. Keiser.,Sheila M. Olmstead.,Kevin J. Boyle.,Victor B. Flatt.,Bonnie L. Keeler.,...&Jay P. Shimshack.(2021).A water rule that turns a blind eye to transboundary pollution.Science. |
| MLA | David A. Keiser,et al."A water rule that turns a blind eye to transboundary pollution".Science (2021). |
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