In an ironic twist, the Flint water-contamination crisis has House Republicans demanding to know why the Environmental Protection Agency failed to aggressively override a state’s authority.
“If the EPA doesn’t know when to step in and ensure a community has safe drinking water, I’m not sure why it exists at all,” said House Oversight Chairman Jason Chaffetz in a hearing last week. Chaffetz was one of many Republicans to call for EPA Administrator Gina McCarthy to step down. The argument that the agency didn’t do enough could seem unusual from GOP lawmakers who usually deride the EPA as an overbearing job killer.
Regulation of drinking water has traditionally been a state issue, a setup that most say has worked well. But the Flint crisis has shown how that relationship can break down, raising questions about whether the federal government needs to do more.
Under the Safe Water Drinking Water Act, states are given primacy over their drinking-water infrastructure (only Wyoming has not applied for independent authority, and is directly controlled by the regional EPA office). Under the best circumstances, there’s very little interaction between the federal government and state and local water officials. John Sullivan, chief engineer of the Boston Water and Sewer Commission, said that even for a major decision like changing the city’s water supply, the federal government wouldn’t need to get involved.
“They’d just observe,” Sullivan said. “EPA’s very active in our region and they don’t really step in, but they do ask questions. … We’re open with them. Transparency keeps you out of trouble.”
The situation in Flint is unique in the history of drinking water disasters. The decision of an emergency manager appointed by Michigan Gov. Rick Snyder to switch the city’s water supply directly led to the contamination crisis that exposed thousands to dangerous levels of lead.
The threat of water contamination looms in many other states; Sebring, Ohio, for example, identified its own lead contamination earlier this year, and a USA Today report last week found excessive lead in nearly 2,000 cities.
In the case of Flint, McCarthy has placed the blame squarely on Snyder’s administration, saying that the state did not keep the EPA informed of Flint’s problems. The state, she told Congress, provided “confusing, incomplete, and incorrect information” to the regional office, leaving EPA “unable to understand the potential scope of the lead problem” until a year later.
And EPA has said repeatedly that it is hamstrung by law, with few levers to pull and take control. Taking emergency authority, for example, requires knowledge that the water is at dangerous levels and that the state is not implementing federal recommendations. That, EPA says, is why it did not take action even though an employee had raised alarms about the water quality as early as May 2015 (notifying the public is another responsibility that falls to the state, although Congress is working on legislation requiring EPA to make public announcements of toxic threats).
Some observers see this as the dark side of the “cooperative federalism” strategy that underlies many of the EPA’s regulations, giving states most of the direct authority. Writing in The Washington Post, columnist Dana Milbank said that Flint was part of a “vicious cycle” where conservatives restrict the federal government, then use crises “as justification to restrict federal power further, thus giving more control to the states, which caused the problem in the first place.”
Lynn Thorp, national campaigns director for Clean Water Action, said EPA likely won’t “bring in the heavy hammer” too early under the normal structure, but that Flint may have exposed a flaw in the system.
“It’s a situation that can lead to innovation and collaboration,” said Thorp. “If a state is causing the administrator a year later to use words like ‘intransigent,’ then there’s a problem, either in the relationship or the statute.”
McCarthy herself has said this stands as a unique situation in her more than 35 years in environmental enforcement, a career that started on the local level.
In last week’s hearing, Democratic Rep. Tammy Duckworth, who proposed legislation to target lead contamination in water supplies, questioned whether it was time for Congress to review the SWDA. “Do we need to change the law so that you step in sooner?” Duckworth asked.
But there seems to be little enthusiasm for a complete overhaul of the SWDA, even though EPA is trying to crack the whip within its existing authority. McCarthy sent letters to governors and utility regulators in the past month warning that EPA would hold a tighter review of their actions, including a look for “deficiencies.” The agency is also working on revising the 1991 Lead and Copper Rule, which requires utilities to measure and limit those metals in drinking water.
“This isn’t a statutory problem; it’s an implementation problem,” said Jim Taft, president of the Association of State Drinking Water Administrators. “Is there some need for fundamental legislative change? The thing that needs changing is the lead and copper rule, and there’s already a commitment to make that change.”