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For practical reasons, many federal environmental statutes, such as the Clean Air
Act (CAA) and the Clean Water Act (CWA), delegate implementation to the states.
Upon EPA’s approval of a state implementation plan, the state enjoys primacy with
respect to the federal law and is in charge of implementing federal standards.
Granting states primacy has two significant impacts: within the parameters of
approved plans, states can devise funding and management strategies appropriate
for their own natural resources; and the federal government is largely removed from
making specific decisions and funding their implementation.
Under the doctrine of preemption, states may not regulate in ways that contradict federal law, though often they may pass regulations that are stricter than the
floors set by federal laws. Similarly, when states choose to regulate in a certain
arena, such as unconventional oil and gas development, local governments in that
state may be prohibited from enacting local regulations that conflict with state law.
A thorough treatment of the doctrine of preemption is beyond the scope of this
chapter, but it plays a critical role in the interaction among federal, state, and local
agencies on issues such as energy resource development, water resource protection,
and regulation of production and transportation of food.
The federal government has not been completely silent on nexus issues. Recent
energy developments, in particular, have catalyzed concern about impacts on water
and food. During the Obama Administration (2009–2017), which coincided with
the boom in unconventional shale gas development through hydraulic fracturing
(“fracking”), the Government Accountability Office (GAO) published several
reports aimed squarely at the energy–water nexus, motivated partly by the fracking
revolution and its water impacts (See Further Reading). However, the majority of
regulation of fracking remains within the purview of the States, particularly after
industry first challenged federal rules governing fracking on federal and Indian
lands finalized in 2015, and then saw those rules rescinded by the Trump
Administration in 2017.
Existing environmental laws mitigate some of the hazards from the erosion, brine,
radioactive cuttings, and fugitive emissions of greenhouse gases that result from
unconventional oil and gas development but not all. Those laws often fail to address
the various stages of resource development and production comprehensively. For
instance, while the wastes associated with exploration, development or production of
crude oil, natural gas, or geothermal energy are themselves exempt from regulation
under the Resource Conservation and Recovery Act (RCRA), the landfills where
those rock and dirt cuttings from drilling are routinely disposed of are subject to
RCRA. Similarly, the leachate from landfills containing similar wastes is transferred
to municipal wastewater treatment plants that discharge into rivers and lakes, even
though direct discharges from unconventional oil and gas production facilities to
municipal wastewater treatment facilities are prohibited. The effluent from wastewater treatment plants is, however, is subject to CWA discharge permits.
8 US Governance
For practical reasons, many federal environmental statutes, such as the Clean Air
Act (CAA) and the Clean Water Act (CWA), delegate implementation to the states.
Upon EPA’s approval of a state implementation plan, the state enjoys primacy with
respect to the federal law and is in charge of implementing federal standards.
Granting states primacy has two significant impacts: within the parameters of
approved plans, states can devise funding and management strategies appropriate
for their own natural resources; and the federal government is largely removed from
making specific decisions and funding their implementation.
Under the doctrine of preemption, states may not regulate in ways that contradict federal law, though often they may pass regulations that are stricter than the
floors set by federal laws. Similarly, when states choose to regulate in a certain
arena, such as unconventional oil and gas development, local governments in that
state may be prohibited from enacting local regulations that conflict with state law.
A thorough treatment of the doctrine of preemption is beyond the scope of this
chapter, but it plays a critical role in the interaction among federal, state, and local
agencies on issues such as energy resource development, water resource protection,
and regulation of production and transportation of food.
The federal government has not been completely silent on nexus issues. Recent
energy developments, in particular, have catalyzed concern about impacts on water
and food. During the Obama Administration (2009–2017), which coincided with
the boom in unconventional shale gas development through hydraulic fracturing
(“fracking”), the Government Accountability Office (GAO) published several
reports aimed squarely at the energy–water nexus, motivated partly by the fracking
revolution and its water impacts (See Further Reading). However, the majority of
regulation of fracking remains within the purview of the States, particularly after
industry first challenged federal rules governing fracking on federal and Indian
lands finalized in 2015, and then saw those rules rescinded by the Trump
Administration in 2017.
Existing environmental laws mitigate some of the hazards from the erosion, brine,
radioactive cuttings, and fugitive emissions of greenhouse gases that result from
unconventional oil and gas development but not all. Those laws often fail to address
the various stages of resource development and production comprehensively. For
instance, while the wastes associated with exploration, development or production of
crude oil, natural gas, or geothermal energy are themselves exempt from regulation
under the Resource Conservation and Recovery Act (RCRA), the landfills where
those rock and dirt cuttings from drilling are routinely disposed of are subject to
RCRA. Similarly, the leachate from landfills containing similar wastes is transferred
to municipal wastewater treatment plants that discharge into rivers and lakes, even
though direct discharges from unconventional oil and gas production facilities to
municipal wastewater treatment facilities are prohibited. The effluent from wastewater treatment plants is, however, is subject to CWA discharge permits.
8 US Governance