Should taxpayers subsidize states contributing to global warming damage? (June 2022)
Maximizing climate mitigation and resiliency using executive discretion
Should taxpayers subsidize states contributing to global warming damage?
Until around 1900 state and local communities bore the cost of weather-related damage. Congress has now shifted disaster recovery and preparedness expenses to federal taxpayers. The federal government also pays a large share of infrastructure, such as roads and bridges, which is disproportionately more expensive in high-risk areas. Global warming is now enlarging projected costs for dealing with weather damage, resilient infrastructure, and loss of vital resources-- a burgeoning national “climate debt” for all taxpayers and future generations.
This funding trend perversely subsidizes state and local governments not using their unique authority to foster clean energy and enact community resilience measures, such as building codes, water management, and land use restrictions to reduce flooding and wildfires. These inactive states seek to attract new business and provide short-term tax revenue, including development in high-risk areas. The short-term allure of tax revenue is buttressed with the experience that the federal government will largely cover disaster funding and infrastructure. Sarah J. Adams-Schoen, Beyond Localism: Harnessing State Adaptation Lawmaking to Facilitate Local Climate Resilience, 8 Mich. J. Env’t & Admin. L. 185 (2018).
Some states even limit climate-related requirements to be “no more stringent than” federal environmental laws. This impedes state activity to fill gaps in federal authority to reduce greenhouse gases and advance climate-related water and air quality objectives. State Constraints: State-imposed Limitations on the Authority of Agencies to Regulate Waters Beyond the Scope of the Federal Clean Water Act, Environmental Law Institute, May 2013. Development and fossil-fuel interests often support state limits on local climate requirements related to clean energy, electrification, development location, and building codes.
Without state participation in the domestic federal/state legal framework, national infrastructure and resiliency costs will be higher. In addition, state inaction skews negative consequences toward more vulnerable communities less able to finance resiliency projects. This raises a policy issue for distributing federal resources. Given limited federal funds, should distribution of federal funds prioritize state participation toward greenhouse gas reduction and cost-effective resiliency projects?
Other states are partnering on climate-related problems. New York requires agencies to consider future physical climate risks due to sea level rise, storm surges, and/or flooding. These risks must be considered in critical public infrastructure funding. Over one hundred local governments are now preparing for extreme weather events. Maryland Governor Hogan (R) recently signed laws that put nature-based and traditional infrastructure on the same financial footing, allow innovative procurement contracts to attract private investment and pay-for-performance contracts, and provide funding opportunities for reducing sediment pollution and greenhouse gas emissions.
Congress is beginning to incentivize stronger state/local partnership to harness local land use authorities for regional resilience activity. In 2021 Congress amended the Stafford Act to create a hazard mitigation revolving loan program, Safeguarding Tomorrow through Ongoing Risk Mitigation Act. The Act incentivizes local governments to pursue larger cross-jurisdictional projects for more impactful regional risk minimization, including private owner land use controls. Unfortunately, national political gridlock makes it unlikely there will be an expansion of climate-related legislation.
However, many federal agencies have existing authority and expertise to establish policy, use enforcement authority, and apply discretion within agency budgets to focus distribution of limited resources to encourage federal/state partnerships. Several federal agencies, including the EPA and FEMA, are seeking federal/state partnerships to reduce pollution and prepare for weather disasters. Much of this activity involves state revolving water funding that impacts many global warming problems-- water supply, nonpoint pollution, drought, flooding, groundwater, and sea level rise.
EPA and other agencies can use enforcement discretion to focus on emerging threats to public health. For example, with Clean Water Act compliance obligations several sewer utilities are partnering with communities to prevent sewer overflows. Milwaukee, Buffalo, Philadelphia, and Washington, D.C. utilities are partnering with communities to reduce stormwater and provide co-benefits, such as reducing flooding, moderating heat stress, and creating local jobs.
Even without new federal spending, all federal agencies have flexibility to channel funding to willing state partners. Joint federal/state activity will best reduce greenhouse gases and maximize resilient regions. President Biden has issued executive orders prioritizing clean energy, regional resiliency, and partnerships. Prioritizing federal resources toward cooperating partners can bridge the current state cooperation gap and reduce the future climate debt.
The unelected Supreme Court’s power grab announced in West Virginia v. EPA makes it clear that the elected Biden Administration should proceed with Executive Orders and discretion to get moving on climate change.