If Both Sides Do It, No One Has to Understand How (New) Federalism Works

Ron Fournier at National Journal is upset that the Flint water crisis has become a partisan issue. Sure, residents of a majority-Black and heavily Democratic city are being lead poisoned as a result of what John Patrick Leary calls “bottom line” (or perhaps more ideological?) decisions made by an emergency manager, appointed by a Republican governor, on the authority of a law passed by a Republican state legislature (and re-authorized by the same after being rejected by the state’s voters in a referendum), and in the throes of a budgetary crisis exacerbated by drastic cuts in aid from Lansing to Michigan cities authorized by that same Republican legislature.

Most reasonable people would, in the face of these facts, insist on a bit more exactitude from an author in an article describing “How Government… Failed Flint.” Fournier doesn’t provide it. Because there is a Democrat in charge of the federal executive branch (forget Congress. It doesn’t exist, isn’t controlled by Republicans, and does nothing to affect the EPA’s methods or budgets or rules.), Fournier can seize an opportunity to play Both Sides Do It, the game that has delighted Washington dinner parties for decades.

The latest in­dig­nity to plague this city of nearly 100,000 is lead pois­on­ing via their drink­ing wa­ter, a man-made dis­aster cre­ated by the ar­rog­ance and in­com­pet­ence of gov­ern­ment of­fi­cials in Flint, Lans­ing, and Wash­ing­ton—Demo­crats as well as Re­pub­lic­ans.

Any­body angry enough to call for GOP Gov. Rick Snyder’s resig­na­tion should also want the scalp of an Obama ap­pointee at the En­vir­on­ment­al Pro­tec­tion Agency who sat on lead test results.

It’s true that the regional EPA office doesn’t look good. The agency has announced the resignation of Region 5 Administrator Susan Hedman (Fournier’s tit-for-tat “scalp”) and acknowledged that they had failed to aggressively publicize findings by EPA staff in 2015 that Flint river water was a risk for lead contamination and that Flint’s state-supervised safeguards for lead were nonexistent (see the Michigan ACLU).

But to argue, as Fournier has done on NPR’s “The Takeaway,” that hypothetical calls for Barack Obama’s resignation over the Flint crisis are as reasonable as calls for Governor Rick Snyder’s resignation, and that federal culpability for the crisis is as great as the state’s, is absurd. To argue, as Rebecca Leber does in Mother Jones, that the EPA is guilty, because

Like every other agency facing criticism for the water crisis, it has shifted the blame elsewhere—to Michigan’s state officials

is also ridiculous. Leber’s implication is that the EPA has simply refused its obligation to act to protect Flint, making for an even distribution of responsibility between local, state, and federal authorities and between Republicans and Democrats. Fournier’s working assumption is that such a state of affairs is a prerequisite for the sort of bipartisan forgiveness and comity that will allow for healing and progress.

For a rebuttal, I refer you to the partnership of Cleese and Palin:

This fake bipartisanship is not only wrong but destructive to the prospect of avoiding future calamities like Flint, because it presumes against evidence that the EPA had a course of action available to it that would have meaningfully changed the outcome in Flint. And, honestly, while it’s perfectly fair to fault the EPA for cowardice in not publicly challenging the Michigan DEQ, it doesn’t make sense to argue that such a challenge could have improved a situation already created and left to fester by the state as part of an effort by leaders in Michigan and other states to diminish the power of the EPA.

To understand why that is, it’s absolutely essential to understand how Flint’s local government, the EPA, and Michigan’s DEQ relate in the context of the reactionary New Federalist movement. Congress, under continuing pressure from conservative and industry groups operating at the state level, have moved regulatory and particularly enforcement responsibilities to state governments, even as those state governments, like Michigan’s, have been pulling back home rule powers from local governments and aggressively challenging federal oversight of their regulatory practices. The power and responsibility for protecting local residents from, for example, lead poisoning in their drinking water, has been vested in the level of government that is least likely to uphold it (note: I wrote about this here).

In practical terms,  the enforcement of provisions of the Safe Drinking Water Act as it pertains to “Public Water System Supervision” lies with the states:

 PWSS (Sec 1413) = Public Water System Supervision. The office of Drinking Water in each state environmental agency has the authority to implement the program, if the state has primary enforcement responsibility (primacy).

States have such primacy in 49 of 50 states. So, what Fournier dismisses as “interagency protocol” is in fact “the law” (it might seem pretty stupid, but it is the law). Unfortunately, Michigan’s priority in using the power delegated to it was exercised to avoid taking action. Michigan’s state agencies were briefed by the EPA about the hazards of corrosive water releasing lead into the water supply.Faced with this information, Michigan’s environmental authorities denied and stonewalled. They refused to acknowledge the legitimacy of test results, and they suborned departures from testing protocol to minimize the tested concentration of lead.

The timeline of events shows a clear progression of decisions made by Michigan authorities that resulted in Flint residents’ exposure to lead, and a pattern of denial and defiance by the state.

Notably, after the EPA’s Miguel Del Toral first warned state officials about the danger of lead in February 2015, it appears that the State suborned Flint water officials to improperly manipulate water samples to avoid triggering federal involvement. In testing conducted between January and June 2015, MDEQ officials manipulated the selection of homes for testing to include residences along a roadway where water mains had been replaced in 2007, reducing the exposure to lead, rather than the required protocol of testing areas at greatest risk. Again, state primacy meant that, by violating testing protocols, Michigan could shield itself from more active EPA intervention. Part of the problem for the EPA in this circumstance was that publicizing Del Toral’s warnings would have certainly antagonized Michigan officials, without any clear mechanism through which publicity could guarantee action.

Indeed, after Del Toral’s internal memo leaked in June 2015, arguing that corrosive water traveling through lead-containing pipes constituted a threat that MDEQ was unprepared to test or remedy, Michigan’s Department of Environmental Quality went on attack and called him a “rogue employee.” As I will explain below, this political attack was really the tip of a large iceberg: an organized movement to defame federal regulatory authorities in the court of public opinion and to challenge their legal authority in federal court. To suggest that Hedman’s office “buried the report” in this circumstance–when aggressive action would have predictably triggered further defiance and perhaps a legal challenge– is very different than suggesting that she buried it so that the EPA could avoid doing its job. Fault the EPA for timidity or cowardice. But don’t equate the EPA’s failure to exercise minimal leverage with Michigan’s willful action to expose Flint residents to lead and their active efforts to shield those decisions from higher scrutiny, with the backing of federalist principles of law.

The Flint crisis is not the first moment of state-federal conflict over environmental regulation in Michigan politics. Michigan’s Attorney General Bill Schuette is a member of the Republican Attorneys General Association, an entity formed to pool contributions from wealthy donors and corporations to be distributed to support the party’s candidates for election to state Attorney General posts.Schuette and his wife in fact hosted a “Jewel in the Straits Welcome Cocktail Reception” for lobbyists and donors attending the RAGA’s 2013 summer meeting on Mackinac Island. The Association’s members also participate in a spinoff called the Edmund Randolph Club, which charges “membership fees” of $125,000 to donors interested in gaining access to the Attorneys General at exclusive resort conventions. This is hardly a secret, having been covered by the New York Times’s Eric Lipton in a series of articles published in 2014 which won a Pulitzer Prize in 2015 for investigative journalism.

What’s the upshot of this access to the top state lawyers in the country? Not surprisingly, it’s often to enlist state Departments of Justice in campaigns against federal regulation. As the RAGA’s own documents indicate, the Association

was formed because an inadequate number of state Attorneys General were committed to defending federalism, adhering to the law during the course of multi-state litigation and applying a common-sense, free market approach to governing.

The “adhering to law during multi-state litigation” refers to the tobacco industry settlement and antitrust litigation against Microsoft, by the way. The attorneys general leading those efforts were not “applying a common-sense, free market approach.”  But, according to Lipton, under the leadership of Oklahoma’s RAGA member Scott Pruitt,

attorneys general band together to operate like a large national law firm… to back lawsuits and other challenges against the Obama administration on environmental issues, the Affordable Care Act and securities regulation. The most recent target is the president’s executive action on immigration.

In 2013, members of RAGA under Pruitt’s leadership were presented with letters drafted by Devon Energy, but represented as coming from Pruitt’s office, protesting proposed Bureau of Land Management rules for hydraulic fracturing on federal lands. Schuette’s office was copied on this “sign-on opportunity,” though he did not ultimately join other state AG’s in protesting BLM rules.

The BLM campaign, however, presaged something broader than simply a lobbying effort by the fracking industry against a particular set of regulations. Former Virginia Attorney General Andrew Miller, who had moved on to political lobbying and organizing while ensconced at the libertarian Mercatus Center at George Mason University, envisioned a larger effort that would be “not client-driven” but, according to documents assembled by Lipton, systemically transformative,  focused on

how the General and his colleagues might have an even greater impact on national public policy. The concept I have in mind builds on the momentum created by the States’ leadership in challenging Obamacare….

The touchstone of this initiative would be to organize the States to resist federal “overreach” whenever it occurs. I am not really focusing on “overreach” with respect to an issue involving a single state. Instead where the effort I envision would have the greatest impact is on subjects of national importance to federalism.

Note the convergence of an ideological critique of “overreach” with a broad systemic focus on disrupting the federal regulatory state. Miller further proposed a “strike force” of state officials, AGs in particular, convened on an invitation basis from those “sympathetic to our cause.” Michigan was certainly on his list. Schuette sent deputy Peter Manning (Division Chief, Environment and Natural Resources) to attend a closed-door “Summit on Federalism and the Future of Fossil Fuels” organized by George Mason, but held in Oklahoma City for the convenience of the energy industry representatives speaking at it.

Manning and Assistant AG Daniel Sonneveldt then participated in the development of a strategy to challenge multiple aspects of Obama Administration regulations, most often through the means of multi-state lawsuits filed by Attorneys General representing their states as harmed by federal intrusion on state prerogatives.

Here are some of the multi-state lawsuits joined or supported by Bill Schuette:

  • Halbig v. Burwell, challenging the legality of Affordable Care Act subsidies for policies purchased on a federal, rather than a state, exchange (this was a SCOTUS appeal of the Circuit Court’s refusal to consider what has been called the “Moops” argument that the omission of the phrase “or federal” in one section of the ACA should be taken to invalidate the manifest intent of Congress in passing the rest of the law) .
  • United States v. Texas, headed to the Supreme Court on appeal of the 5th Circuit Court of Appeals ruling in 2015 that Obama administration executive actions on immigration are lawful (overturning an injunction from the Southern District Court of Texas).
  • American Farm Bureau Federation v. EPA, decided in favor of the EPA by the 3d Circuit Court of Appeals in July 2015, involved a suit by officials and agricultural interests in many states (most outside of the Chesapeake Bay region) contesting the authority of the EPA to manage the volume of pollutants flowing into the Chesapeake.
  • Michigan v. EPA, filed 2014, arguing that the EPA improperly executed its mandate to enforce the Clean Air Act by implementing rules for states to reduce CO2 pollution without considering “cost” (to wit, costs to the energy industry) in determining the standards. Schuette led a group of officials representing 24 states in this suit. The Supreme Court upheld the suit by a 5-4 margin in June 2015. In announcing his skepticism about the EPA’s Clean Power Plan, Schuette denounced “yet another executive action taken by President Obama and the EPA that violates the Clean Air Act and causes the price of electricity to increase, placing jobs at risk and costing Michigan families more.”

All of these share the common element of aggressive hostility toward the federal regulatory state. However, another recent action perhaps best demonstrates how Schuette’s activities link the abstract principle of federalism to the concrete interests of businesses at the expense of the safety of urban water supplies. Nominally representing the people of Michigan, Schuette filed suit in June 2015 with Ohio AG Mike DeWine, challenging the EPA’s claim to jurisdiction through its “Waters of the US” (WOTUS) rule over transient standing water (such as a flooded or heavily irrigated farm field) and over soil and materials that reach navigable waterways as runoff.  As the lawsuit progressed, joined through consolidation of similar cases to challenges made by eighteen states in all, Congress passed legislation barring enforcement of the rule.  The 6th Circuit Court of Appeals in October issued a stay in the implementation of the rule, impeding the enforcement of the law until the rule is clarified.

This suit has been framed as a battle against federal overreach and excessive regulation. But the real issue at stake is whether the EPA can compel states to restrict the runoff of agricultural fertilizer from dispersed farmland into waterways that provide drinking water to cities like Toledo, where phosphorous pollution has fed algae blooms over the city’s Lake Erie drinking water intake, resulting in toxic, undrinkable municipal water in the summer of 2014. As Michael Wines reported in the NYT, the recurrent contamination of Lake Erie and its tributary streams by phosphorous is enabled by the gaps in regulatory coverage that the WOTUS rule seeks to address:

The federal Clean Water Act is intended to limit pollution from fixed points like industrial outfalls and sewer pipes, but most of the troublesome phosphorus carried into waterways like Lake Erie is spread over thousands of square miles. Addressing so-called nonpoint pollution is mostly left to the states, and in many cases, the states have chosen not to act.

Beyond that, the Supreme Court has questioned the scope of the Clean Water Act in recent years, limiting regulators’ ability to protect wetlands and other watery areas that are not directly connected to streams, or that do not flow year-round.

Wetlands, in particular, filter phosphorus from runoff water before it reaches rivers and lakes. A federal Environmental Protection Agency proposal to restore part of the Clean Water Act’s authority has come under fire in Congress, largely from Republicans who view it as an infringement on private rights and a threat to farmers.

The essentially political nature of this problem was noted by EPA head Gina McCarthy in 2014.

Critics of the Environmental Protection Agency’s water jurisdiction rule are spreading misinformation, the agency’s chief said Monday.

McCarthy said the rule was proposed in March to clarify Clean Water Act protections for 60 percent of the nation’s streams and wetlands, since two court decisions made it unclear.

“As with everything EPA does these days, there is some misinformation out there, confusing what our plan is all about,” McCarthy said at a conference of water quality officials in New Orleans.

Indeed, misinformation seems to be exactly the point, as political opposition or confusion that delays effective enforcement of regulation effectively negates it, and leaves cities without allies in defending the quality of their water.

This is the climate in which the EPA was operating in Michigan. The state attorney general, a political ally of the governor, has been an active participant in broad efforts to discredit the agency, to legally limit its authority, and to entangle it in lawsuits, as employees of the DEQ have practiced deception to prevent EPA action. The state of Michigan and its DEQ clearly welcome federal involvement only when it comes to sharing blame.

Given all this, it seems a pretty large leap to presume, as Fournier and Leber seem do, that Susan Hedman and Gina McCarthy (adequately staffed through the healthy budget that Congress has given their agency) would have a cakewalk in seizing control from the state authorities and asserting their will. There’s no way that Bill Schuette would have tied the entire agency up in Federal Court over that, given how reluctant he’s been to sue the EPA in the past, right?

In conclusion, let’s not bicker and argue about who poisoned who in Flint, and let’s certainly not bother to understand how the New Federalism works, or for whom.

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Municipal Preemption in the News

As I wrote recently, preemptive laws prohibit municipal governments from enacting particular policies. Preemption in the nineteenth century was extensive, as business interests used state legislatures tilted toward rural interests to thwart the efforts of municipalities to meet public needs through taxation and spending. Legislative limits are coming back in a big way, as Shaila Dewan reports in the New York Times today:

Darren Hodges, a Tea Party Republican and councilman in the windy West Texas city of Fort Stockton, is a fierce defender of his town’s decision to ban plastic bags. It was a local solution to a local problem and one, he says, city officials had a “God-given right” to make.

But the power of Fort Stockton and other cities to govern themselves is under attack in the state capital, Austin. The new Republican governor, Greg Abbott, has warned that several cities are undermining the business friendly “Texas model” with a patchwork of ill-conceived regulations. Conservative legislators, already angered by a ban on fracking that was enacted by popular vote in the town of Denton last fall, quickly followed up with a host of bills to curtail local power.

“The truth is, Texas is being California-ized, and you may not even be noticing it,” Mr. Abbott said in a speech at the Texas Public Policy Foundation, an influential conservative think tank, just before he took office last month. “Large cities that represent about 75 percent of the population in this state are doing this to us. Unchecked overregulation by cities will turn the Texas miracle into the California nightmare.”

So, local governments that serve 75% of the population of Texas are taking action to represent their residents’ best interests. I guess that really is a nightmare.

Pre-emption invokes a paradox for conservatives, like Mr. Abbott, who have long extolled the virtues of local control in some areas, like education, but now say uniform standards are necessary in others.

Oh.  Well, I’m sure that “necessity” is determined by public interest, and not by organized industrial groups….

The strategy was pioneered by tobacco companies 30 years ago to override local smoking bans. It was perfected by the National Rifle Association, which has succeeded in preventing local gun regulations in almost every state.

More recently, the restaurant industry is leading the fight to block municipalities from increasing the minimum wage or enacting paid sick leave ordinances in more than a dozen states, including Florida, Oklahoma and Louisiana. “Businesses are operating in an already challenging regulatory environment,” said Scott DeFife, the head of government affairs for the National Restaurant Association. “The state legislature is the best place to determine wage and hour law. This is not the kind of policy that should be determined jurisdiction by jurisdiction.”

This year, a combination of big money in state politics and a large number of first-time state legislators presents an opportunity for industries interested in getting favorable laws on the books, Mr. Pertschuk said. Increasingly, he said, disparate industries are banding together to back the same laws, either through the business-funded American Legislative Exchange Council, or by way of shared lobbyists. “There is going to be a feeding frenzy all year long in the state legislatures,” he said.

I’ve got some work that is nearing press that addresses the history of this aspect of state-municipal politics. I won’t spoil the plot, but this preemption is part of a long effort to suppress the democratic potential of American cities. This battle was expressed most influentially (perhaps notoriously) in the 1872 expression by Iowa Supreme Court Justice John Dillon of the notion that cities are constitutionally “creatures of the states.” It was purely coincidental that Dillon was a career railroad attorney, that railroads, the largest corporate enterprises of their day, were engaged in extensive battles against local governments over taxes and regulation, and that state legislatures were notoriously influenced by railroads. Indeed, the much-maligned headnote in Santa Clara County v. Southern Pacific Railroad that established the principle of corporate personhood was rooted in just such a dispute.

That’s not what’s happening today, right?

James Quintero, the director of the Center for Local Governance at the Texas Public Policy Foundation, said the pre-emption of city power was “new to the conservative movement here in Texas.” Still, he was ready to counter accusations of hypocrisy: “What we’re arguing is that liberty, not local control, is the overriding principle that state and local policy makers should be using,” he said.

OK. Liberty.

In Texas, many of the bills before the Legislature aim to prevent more cities from following Denton’s lead in banning hydraulic fracturing, or fracking. State Representative Phil King, a Republican representing a district near Denton, has sponsored two pre-emption bills. The first bill would require local referendums to be certified by the state as legal, and the other would require an assessment of the cost, in tax revenue, of any local attempt to regulate oil and gas.

Liberty it is.