Federal Efforts to Limit Regulation Can Be Countered by State Rulemaking
State agencies often go beyond simply filling gaps left by federal policy in their rule-making— and in fact, they can enforce stricter regulations that reflect state-specific concerns.
I. Introduction
In my junior year, Spring of 2024, I spent a semester in Washington, DC interning full-time for one of South Carolina’s Congressmen, Rep. Russel Fry of SC-07. Congressman Fry made it his priority to combat excessive regulation and permitting requirements. He was preparing for a seat on the House Energy and Commerce committee, and so I did a fair amount of research on the regulation and permitting of nuclear facilities, carbon capture technologies, and natural gas pipelines. I often looked for ways that the process for permit-seekers could be streamlined at the expense of environmental agency regulatory power.
II. Federal Degradation of Agency Power
For instance, I wrote often about the proposed Rule 53, a regulation that establishes a licensing framework for advanced nuclear reactors. In one memo on Rule 53 (Artifact 1), I wrote about how stakeholders see the rule as redundant and overly burdensome, overlapping with existing regulations (Rules 50/52) without providing enough differentiation to comply with the Nuclear Energy Innovation and Modernization Act (2019) that gives the regulation its authority. Since I have left DC, Rule 53 has been rewritten to exclude the licensing framework for health risk analysis that stakeholders found frustrating. This is just one example of many that show how regulatory powers are decreasing as federal attitudes about executive agencies change.
Since then, I have begun to work on my thesis, which examines the treatment of Chevron v. Natural Resources Defense Council as a precedent and the decline of administrative law over time. As I undertake the research process, I have also been looking at another central environmental Supreme Court case-- Sackett v. EPA. The opinion of the Court in Sackett narrowed the Clean Water Act’s definition of “waters of the United States,” which meant there are fewer scenarios where a National Pollutant Discharge Elimination System (NPDES) permit is required for construction. This initially sounds as though this would severely limit the power of agencies to regulate water pollution, and in some cases it certainly does. However, following my experiences at my position in the US House of Representatives and my internship at the South Carolina Department of Environmental Services (SCDES), I have begun to realize that there were some gaps in my understanding of the balance of power in federal and state agency rulemaking.
Artifact I: Memo on Rule 53
This is a memo about Rule 53 of nuclear permitting that I wrote as a part of my internship for SC-07 in the US House of Representatives. In it, I reflect on stakeholder distaste for the rule.
"Stakeholders think that Rule 53 is redundant of existing code in some ways that would create burdensome regulation. It’s not unique enough from existing law to be NEIMA-compliant."
III. Purposes of State Rulemaking
In my Environmental Policy course at UofSC, POLI 478, I learned a little about how federal and state agency policy/rulemaking processes interact. My main takeaway was that state rulemaking was mainly important where federal policy is not sufficient, a thought that I elaborated on in my notes (Artifact 2) and a writing assignment (Artifact 3) for the course. According to Rinfret and Pautz, authors of our textbook US Environmental Policy in Action, “State rulemaking is of additional importance when there is a lack of federal policy” (Rinfret and Pautz 2019). They further claim that states know this, and that state agencies “[use] rulemaking to provide policy when there is a lack of federal law” (Rinfret and Pautz 2019). This principle is certainly true at SCDES— often state rulemaking regulates issues that are untouched by federal policy. For instance, DES (then DHEC) promulgated regulations for swimming pools, which they were directed to do by the General Assembly, not the EPA or the federal government. In this way, DES filled a gap in federal environmental regulation, filling what Rinfret and Pautz say is the main role of state agency rulemaking.
However, as I continued to work as an intern at SCDES, I have learned that this is far from the main function of state rulemaking. In addition to state rulemaking filling holes in federal policy, sometimes state regulations/policies are stricter than federal policy. While writing a memo about Sackett for one of the attorneys, I noticed that while it narrows the federal definition of ‘waters of the US’ for federal NPDES permitting purposes, the South Carolina code still has a broader definition of ‘waters of the state’ under the Hazardous Waste Management Act. According to the SC Code, “’Waters of the State’ means lakes, bays, sounds, ponds... and all other bodies of surface or underground water, natural or artificial, public or private... which are wholly or partially within or bordering the State or within its jurisdiction.” To my knowledge, this definition includes isolated wetlands, which are the bodies of water that Sackett excludes from coverage under the Clean Water Act. Furthermore, SCDES is given the power to enforce the South Carolina Code of Laws where it requires that “no person shall knowingly:... (4) discharge used oil into sewers, drainage systems, septic tanks, surface water or groundwater, or any other waters of this State, or onto the ground.” This clause, among SCDES’s other authorizing pieces of legislation, gives the state the ability, and arguably the responsibility, to protect isolated wetlands outside of the Clean Water Act. Whether or not the agency will use this power remains to be seen, but I believe this is a great example of what I view to be one of the major roles of state agency rulemaking. Federal policy and regulation set the minimum level of regulation that states are required to implement. Often, states regulate more strictly, on top of this minimum level.
Artifact II and III: POLI 478 Notes and Writing Assignment on State Rulemaking
These are pages of notes I took in my POLI 478 Environmental Policy class. In my notes, I record the key points we discussed about state rulemaking.
"State rulemaking
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States have their own rulemaking processes for state laws
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...
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State rulemaking is important when there is no federal policy in place"
This is a reflection I wrote for my Environmental Policy course. In it, I reflect on state rulemaking as we discussed it in class, and how it related to my experiences at the very beginning of my internship at DHEC.
"Through our discussion in class, I have noticed that agency rulemaking power at the state level must be weaker than at the federal level. While at DHEC, a lot of rulemaking power for state policy was dampened by what I realize now is the relative specificity of passed legislation. Many of the directives that DHEC enforced came from EPA or USCAE rules or from somewhat specific parameters established by state legislators."
IV. Conclusion
Through this experience, I learned that state agencies often go beyond simply filling gaps left by federal policy— and in fact, they enforce stricter environmental regulations that reflect state-specific concerns. This experience highlighted for me the significant role state agencies play in shaping environmental standards, even when federal protections are limited or removed. Considering that the current regime is united and focused on the degradation of agency power, this is a particularly valuable understanding. As I graduate into the field of environmental law, it is crucial that I know all avenues available to promote effective regulation measures to protect the environment.
V. Works Cited
Rinfret, Sara R., and Michelle C. Pautz. US Environmental Policy in Action, Springer International Publishing AG, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/southcarolina/detail.action?docID=5710162.
