Western governors and the fight for federalism
The Great American Experiment is a test of federalism, the push-pull balance between state and federal power. And like any good test, the Great Experiment has its guinea pigs. Enter natural resource use in the West—an area where federal-state tension is at an all-time high.
“States derive independent rights and responsibilities under the U.S. Constitution,” says a new policy adopted by the Western Governors’ Association (WGA), a bipartisan group representing 19 western states and three U.S.-flag islands. “… Governors have responsibilities for the condition of land, air, forest, wildlife and water resources, as well as energy and minerals development, within their states’ borders.”
States’ rights in the federalism balancing act is crucial to the welfare of the nation, says the policy, titled, “Building a Stronger State- Federal Relationship” (2017-01).
“This reservation of power to the states respects the differences between regions and peoples. It recognizes a right to self-determination at a local level. It rejects the notion that one size fits all, and it provides for a rich tapestry of local cultures, economies and environments…” But is the experiment on track?
According to WGA, not exactly.
“Despite the foregoing, the balance of power has, over the years, shifted toward the federal government and away from the states,” says the policy. “... Increasingly prescriptive regulations infringe on state authority, tie the hands of states and local governments, dampen innovation and impair on-the-ground problem-solving.”
WLJ spoke with WGA’s Executive Director, Jim Ogsbury. He said WGA has developed a host of policies and initiatives designed to improve the state-federal balance, addressing issues such as wildfire and forest management, the Endangered Species Act, water quality and management, and public lands grazing.
“State authority is the unifying theme,” Ogsbury said. “Governors have had an issue where federal agencies have treated them as just another stakeholder. They’re afforded no special consideration.
‘Here’s our rule, you can comment on it,’ the agencies say, instead of acknowledging the states as the leading authority on natural resources within their borders.”
As a partial solution, WGA’s new policy suggests that the next president reissue a federalism executive order. That order would define specific criteria for state-federal consultation, a process for which the WGA policy gives detailed suggestions. WGA also advises the new administration to reestablish the U.S. Advisory Commission on Intergovernmental Relations, a commission that was established in 1959 and dissolved in 1996.
“It is imperative that the president show his commitment to the constitutional separation of powers by establishing a platform at the highest level to address federalism concerns,” the policy states.
Affronts to federalism
The policy cites a host of federal infringements on state sovereignty regarding western resources, including the imposition of regulations that are beyond the federal government’s constitutional jurisdiction; lack of consideration of state data, policies and positions in the development of federal regulations; and the imposition of unfunded mandates. States, cities and the general public are burdened with $57-85 billion annually in unfunded federal mandates, according to a 2015 report by the White House Office of Management and Budget cited in the policy.
When asked for specific regulatory examples, Ogsbury told WLJ there were “too many to count,” but that the U.S. Environmental Protection Agency’s (EPA) “Waters of the U.S.” (WOTUS) rule was one that exceeded federal authority, left states out of the rulemaking process, and imposed an unfunded mandate.
“While there was some difference of opinion amongst western governors as to the substance of the WOTUS rule, there was no disagreement as to process,” he said, adding that all the governors agreed that water is a state prerogative, and that the EPA overstepped its bounds in developing the wide-reaching rule without involving the states up front. He said the rule expands the waters that states manage, increasing administrative costs to states nationally by an estimated $462.9 million per year.
The policy also addresses federal land management, calling for “good neighbor” behavior from the federal government and for more state input in land-use planning.
“The federal government should be a responsible landowner and neighbor and should work diligently to improve the health of federally-owned lands in the West,” reads the policy. “Lack of funding and conflicting policies have resulted in large wildfires and the spread of invasive species from federally owned forests and grasslands, negatively impacting adjacent state and privately-owned lands, as well as state-managed natural resources (soils, air and water).”
The policy emphasized the need for adequate time for governors to review new or revised federal land management plans for consistency with existing state plans. It also states governors must retain a right to appeal any rejection of recommendations resulting from a governor’s consistency review.
Additionally, the policy says the federal government must honor its historic agreements with the states regarding federal lands, including sharing mineral and energy revenues and continuing the Payment In Lieu of Taxes (PILT) and Secure Rural Schools (SRS) program. PILT compensates western states and counties for taxexempt federal lands within their borders, and SRS provides federal funds for roads, emergency response, and wildlife and natural resources protection. Those services were historically funded by shared timber revenues on federal lands; the precipitous drop in federal timber sales prompted Congress to provide states and counties with another funding source.
Hope on the horizon
When asked about WGA’s expectations in working with the incoming administration, Ogsbury said it’s already begun. WGA and other western states’ associations have provided congressional leaders and the president-elect with a primer, “Principles to Clarify and Strengthen the State-Federal Relationship,” which is very similar to WGA’s federalism policy. WGA is developing more materials for President-elect Donald Trump’s transition team, Ogsbury added.
“I think the change of any administration provides an opportunity to educate a new set of players as to the priorities of WGA,” he said. “I think you’re going to hear a lot more from the governors in the coming weeks and months.”
The policy includes hopeful language, as well.
“Western Governors are optimistic that the new administration will be eager to unleash the power and creativity of states for the common advantage of our country,” it states. “By working cooperatively with the states, the administration can create a legacy of renewed federalism, resulting in a nation that is stronger, more resilient and more united. Such an outcome will redound to the credit of the administration and inure to the benefit of the American people.” — Theodora Johnson, WLJ Correspondent