With real-time diagnostics, cutting-edge compliance management systems, and an underlying focus on sustainability as a good economic and reputational practice in many industry sectors, environmental compliance is increasingly self-policed and self-corrected by regulated entities. There is also much discussion about “cooperative federalism” and the need to ensure that program administration reflects the significant expertise and experience state agencies now have after decades of administering environmental protection laws. What would changes to the cooperative federalism model mean for the business community? More fundamentally, with private governance systems increasingly finding and solving compliance problems, how might the government role be re-envisioned in a way that aligns with, reflects, and harnesses this phenomenon?

This forum continues ELI’s recent exploration of federal-state relationships aimed at identifying law and policy solutions for optimizing government roles going forward. This effort, which we have entitled the Macbeth Dialogues, is a partnership with the ECOS and has the support of the American College of Environmental Lawyers. It’s undertaken in honor and memory of a great friend of ELI and many of us, Angus Macbeth.

The starting point for the dialogues is “Cooperative Federalism 2.0,” a document put out by ECOS this June. An initial Chatham House Rule gathering was held this summer that convened experts and key stakeholders, and in the past few weeks, we’ve conducted a broader survey on this topic, and that was sent out far and wide to get the input of multiple stakeholders. ELI will put out a policy paper that synthesizes today’s exchange and other ideas that are being shared through the Dialogues.

Based on the input to date, we think there may be room for consensus on the following ideas:

• The idea of moving environmental protection in the direction of an environmental protection enterprise, with the public and private sectors both having important roles to play.
• The notion that interstate dimensions still matter and warrant greater federal attention than intrastate issues.
• That consistency in implementation remains important as a means of ensuring fairness among states and a level playing field for business, but that greater state flexibility should be possible without compromising the goal of overall consistency.
• That when a state can do as good a job or perhaps better than the feds, that the feds should stand down, consistent with the principle of subsidiarity.
• That agreement may be possible around an audit approach that can serve as a primary system for federal oversight of delegated programs in lieu of routine case-by-case review and intervention.

I think we’re all very much aware that a lot of the power has shifted to market forces and consumers, with private environmental governance mechanisms increasingly driving “beyond compliance” behaviors without the intervening hand of government. This last point is of particular importance.

©2018. Published in The Environmental Law Reporter, Vol. 48, No. 2, February 2018, by the Environmental Law Institute. Reproduced with permission. All rights reserved.