Last month, a decision in a case involving the Lake Erie toxic algae blooms demonstrated some “issues” concerning the nature of cooperative federalism. Such blooms have been a problem for some time and pretty much everyone knows about the 2014 bloom, which left Toledo without water for several days.
Notwithstanding what pretty much everyone who can read or watch the news already knew, Ohio EPA refused to “assemble and evaluate all existing and readily available water quality-related data and information” concerning Lake Erie. To make a long story short, Ohio EPA provided information about shoreline issues only and refused to provided information about open waters. Why not?
Ohio EPA believed that assessment and listing of the open waters under the CWA should be led by the U.S. EPA in consultation with the states.
Indeed, after some back and forth with EPA, Ohio EPA dismissed the idea that it should “develop its own standards as ‘absurd.’”
Although it’s fair to say that the Obama EPA did not exactly hold Ohio EPA’s feet to the fire, the situation indeed became “absurd” after the Trump administration took office. I’ll skip the particulars and simply point out that Judge Carr, summarizing EPA’s defense of the citizens’ suit brought in an attempt to require US EPA to bring Ohio EPA to heel, referred to the “whiff of bad faith” in EPA’s handling of the case.
And what does this all have to do with cooperative federalism? I previously noted, in the context of a dispute between Texas and EPA over SIP requirements, that cooperative federalism “requires two willing parties.”
But what if the two parties – in this case US EPA and Ohio EPA – are cooperating to ignore the requirements of the statute. It may be cooperative and it may be a form of federalism, but it’s not exactly consistent with the Clean Water Act that Congress enacted.
At least in red states, I doubt that this is the last whiff of bad faith we’re going to see.