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Opinion: The Devolution of Environmental Policy

County and municipal environmental activity is on the rise, even as the state DEP seems to have lost its way.

For proponents of sound environmental policy, it used to be axiomatic that bigger is better, and a good part of the emphasis of the environmental movement over the past 40 years has been to promote the adoption of strong laws and regulations by the highest level of government possible.

The first triumphs of the fledgling environmental movement, which dates back to the first Earth Day and the creation of the EPA during the Nixon Administration, were the National Environmental Policy Act of 1969, the 1970 Clean Air Act amendments, and the 1972 Federal Water Pollution Control Act amendments (more commonly known as the Clean Water Act).

The underlying assumption behind these laws was that only federal regulation of air pollution and water pollution could reverse more than a century of environmental neglect. Under this view, federal minimum standards were needed because air and water pollution did not respect state boundaries, and federal mandates were required to ensure that all states would eventually act to improve air and water quality throughout the country.

These early laws were quickly followed by subsequent Congressional enactment of the Federal Environmental Pesticide Control Act in 1972, which dramatically strengthened federal regulation of pesticide usage (in response to Rachel Carson’s seminal Silent Spring), and by the 1976 Resource Conservation and Recovery Act, which provides the basis for federal regulation of solid and hazardous waste.

The strategy used by virtually all of these federal programs was to employ a combination of carrots and sticks to minimize environmental impacts. The carrots came in the form of federal operating grants to states that agreed to administer programs at least as stringent as the federal ones, and for massive federal wastewater treatment grants for the construction of wastewater treatment facilities. The sticks came in the form of various financial penalties and loss of federal funds for failure to meet federal minimum standards, as well as requirements to impose extraordinary regulatory measures if federal standards were not met.

While Washington was clearly ground zero in the war on pollution for much of this early stage, a handful of states, including New Jersey, also became very active battlegrounds. In those states, delegation of the principal federal regulatory programs was quickly sought and obtained, and states began regulating activities that affected the environment in a number of ways that went far beyond federal minimum standards. These states also branched out into areas and activities not subject to federal regulation, and many of these new enactments assumed that state mandates were necessary to insure a healthy environment, with many state laws pre-empting local regulations altogether, although some of these new laws expressly allowed for more stringent local laws.

Throughout the 1980s and 1990s, however, the role of the federal government gradually waned as more and more states took over the administration of the principal federal regulatory programs, and as federal grant programs diminished or vanished altogether.

State primacy in environmental policy blossomed during this phase, and New Jersey was regarded as one of the top innovators and leaders in the field. With enactments like the Spill Compensation and Control Act (1976); the Pinelands Protection Act (1979); the Worker and Community Right to Know Act (1983); the Environmental Cleanup and Responsibility Act (1983); the Toxic Catastrophe Prevention Act (1985); the Freshwater Wetlands Protection Act (1986) and the Clean Water Enforcement Act (1990), as well as literally hundreds of other environmental laws enacted during this period, New Jersey and its Department of Environmental Protection became known for its tough, innovative, and comprehensive environmental policy initiatives.

In this new role, NJDEP was widely regarded by both the regulated community and the environmental community as the leading environmental regulatory agency, and the federal EPA assumed a more secondary, administrative role in environmental affairs here in the Garden State. And New Jersey counties, despite the enactment of the County and Environmental Health Act in 1978, remained, along with municipalities, for the most part minor actors in the environmental dramas that would play out again and again in the 1980s and 1990s.

In recent years, however, several curious things have happened. The pace of state new environmental legislation has slowed dramatically, and New Jersey DEP, like most other state agencies, has been hit by successive waves of budget cuts and downsizing. In fact, from its heyday of more than 4,200 staff in the early 1990s, DEP now employs some 2,800 people, a reduction of about a full one-third from its peak staffing levels. And the agency has definitely hit upon hard times in terms of a backlash against stringent environmental regulations fueled both by hard economic times and by a rise in anti-governmental and anti-environmental policies and politicians. These combined forces have quickly pushed the agency back on its heels, transforming what once was a leading environmental policy laboratory into an agency that has sought to transform itself with a new focus on customer service, and on finding ways to promote economic development by waiving its own “overly burdensome” environmental regulations.

In contrast, in a seeming role reversal, the federal EPA (led by former state DEP Commissioner Lisa Jackson) has recently found its stride and its voice, and has effectively supplanted NJDEP as the agency of choice for the environmental community. In fact, some days it truly seems that Lisa Jackson and her troops are really the only things standing between where we are now and a complete rollback of environmental standards to what was prevalent in, say, the Dark Ages.

Perhaps even more impressively, when one looks at progressive environmental leaders and policies in New Jersey today, you are quickly struck by how very much is now going on at the county and municipal levels. Most open space advocates know that several counties -- especially Morris, Somerset, Ocean, and a handful of others -- have now become the principal funders of county, local, and even nonprofit open space projects as state open space funds have dwindled. And now, just as often, New Jersey counties are the policy laboratories for the kind of innovative regulatory programs and shared services that used to be incubated at the state level.

New Jersey municipalities, long the stepchild when it comes to environmental policy, have also launched a renaissance of their own: more than 300 towns and cities have enrolled in Sustainable Jersey, which means that “green teams” of informed local volunteers in all of these municipalities are busy analyzing municipal operations to find ways to reduce pollution, cut costs, and to generally tread more lightly on the planet at large. Meanwhile, back at the ranch, NJDEP and state government essentially fiddles while both Rome and farsighted environmental policy burns.

Whether this is all just back to the future, or the beginning of round two, remains to be seen. But what is clear is that New Jersey is once again in the forefront of things – even as we reverse course on environmental policy. Former Newark Mayor Ken Gibson used to be fond of saying that he was not sure where American cities were going, but he was certain that Newark would get there first. I guess the same thing applies to environmental policy and the Garden State.

Michael Catania is a former Deputy Commissioner of the NJ Department of Environmental Protection who served in that position under two Governors and three Commissioners in both Republican and Democratic administrations. He is also the author of many of New Jersey’s landmark environmental laws and is currently the President of Conservation Resources, a non-profit conservation intermediary organization. The opinions expressed in this commentary are entirely his own, and do not necessarily represent the views of any other individual or any organization.

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