Many who have followed the crisis and debacle in Flint, Michigan, recognize that part of the failure is being blamed on the U.S. EPA for acting too slowly. As a former senior EPA water regulator, I am sympathetic to the argument that EPA should as a matter of good policy and governance be deferential to the States who have the primary authority to manage the drinking and surface water programs. But EPA also has the responsibility for establishing the minimum floor, or expectations if you will, for complying with federal environmental laws. Toward this end, deference only goes so far, particularly when a state fails to do its job, which is clearly what happened in the case of Flint. Shortly after the EPA used its emergency powers to intervene in the Flint crisis, EPA’s Administrator, Gina McCarthy, issued a new policy, which was sent out in the following email.
From: Message from the Administrator
Sent: Thursday, January 21, 2016 3:25 PM
To: Message from the Administrator <firstname.lastname@example.org>
Subject: Policy on Elevation of Critical Public Health Issues
As we head into the final year of this administration, I know that everyone is working very hard to carry out our vital mission of protecting human health and the environment. In carrying out this mission I need to remind all of us to elevate critical public health and/or environmental issues so that we can properly assess them and respond at appropriate policy and governmental levels.
One of EPA’s great strengths is our fidelity to law. But as with so many things, our strength can become a weakness if we interpret our responsibility as ending with simple technical compliance, when a broader perspective would suggest that a larger public health or environmental issue is at stake. I am asking you to view issues through such a broader lens and to consider whether focusing too narrowly on legal, technical or protocol issues or concerns would miss opportunities to heighten public awareness of potential risks, or worse, would mean our silence in the face of potential threats to people’s health.
EPA’s Administrators, beginning with Bill Ruckelshaus, have always recognized that our role goes beyond regulation, and that we have to be, in Bill Reilly’s words, “a major source of information, of encouragement, at times of inspiration, for the public at large.” This applies to major national issues, such as climate change, but it also applies in communities around the country who even in 2016 can be vulnerable to threats to their health, whether from air pollution, drinking water, toxic chemicals, or hazardous waste sites. We of course work very closely with our partners in state and local government and tribes in addressing these risks; we cannot do the job alone. But it is our particular responsibility to consider when such risks, viewed through the lens of public health, require a higher level of attention than our usual processes.
In order to be clear about issues which would require elevation, I am instating a more formal policy and providing some specific parameters to guide your process. Leaders in EPA should encourage staff to elevate issues that have the following characteristics:
· There appears to be a substantial threat to public health;
· EPA is or can reasonably be expected to be a focus of the need for action; and/or
· Other authorities appear to be unable to address or unsuccessful in effectively addressing such a threat;
· Recourse to normal enforcement and compliance tools is not appropriate or unlikely to succeed in the near term;
· High and sustained public attention is possible.
This policy is effective immediately. It is our responsibility to ensure good communication at all levels in the agency–among our peers, across organizational lines, and between Regions and Headquarters. There may be instances that warrant elevation that do not fall specifically in the list provided above, so I will expect you to use sound judgment in elevating issues, and for doing so in a way that enables us to engage the full decision-making resources of the Agency. There are many good examples of how all of you are doing this now and have done this in the past, but we need to increase our awareness of such issues and enable all of us to work together, as one EPA, to address them. I ask you to seriously consider what issues you are now are or expect to be dealing with that deserve such attention.
Once again, you have my deep and undying gratitude for the hard work you do every day for this agency. It is an honor to serve with you and I am confident that in the year ahead we can continue to make great and enduring contributions to the health and welfare of the American people.
The policy of “elevating when in doubt” is a good one – and one that I strongly advocated when I was at EPA – but such policy must be exercised and implemented with due care and good judgment. While the singular focus must be on protecting public health and the environment, the unintended consequences of an overreaction by EPA could be to undermine and unravel the critical trust between the Federal and State governments that is so central to cooperative federalism and making our federal environmental laws work.