ELC 2025: Thin Silver Linings in State Environmental Action by Gabriel Pacyniak

There is no two ways about it – the Trump Administration’s broad and unprecedentedexecutive actions to gut federal environmental law will cause significant harm to people and ecosystems throughout all of the United States. That these federal rescissions are too often being supported by the Supreme Court make them all the more dangerous. 

Are there potential silver linings to explore in these federal roll backs for state action? Perhaps so, although these silver linings in no way replace or justify the harmful effects of federal roll backs. But it may be worth spending a bit of time and energy thinking about how state action to fill the new federal gaps provides an opportunity to create and test new environmental policies that may work better – either in terms of effectiveness or efficiency – than the federal policies that they seek to replace. 

My state, New Mexico, provides a couple of examples – one related to water quality, the other related to low-income energy efficiency. 

As an arid, southwestern state, many of New Mexico’s streams and rivers are intermittent and ephemeral – that is, they don’t necessarily run year round. Especially in times of drought and in response to climate change, they either run during wetter seasons or in response to precipitation. Under the Supreme Court’s ruling in Sackett v. EPA, many of these intermittent or ephemeral streams are likely no longer protected by the Clean Water Act, since the Supreme Court held that only applies to waters that are “relatively permanent, standing or continuously flowing bodies of water.” Some estimates have found that up to 90% of waters that were protected by the Clean Water Act in New Mexico could no longer be protected. The Trump EPA is now embarking on a rulemaking to “finally address this issue once and for all.”

Under the Clean Water Act, states could implement and enforce water quality programs, if the waters at issue were protected by Clean Water Act, they had to do so within the framework established by the Clean Water Act. Where waters are not protected by the Clean Water Act, however, the federal government plays no role. 

New Mexico’s legislature and Governor Michelle Lujan Grisham have moved quickly to fill this large, new gap with new state law. The legislature passed SB 21 last year, which authorized New Mexico to both implement the federal program on federal waters and also to establish a program for permitting surface water quality on state waters. The New Mexico Environment Department is now preparing for a rulemaking to implement these new permitting programs. 

While the law hews closely to the federal program, there are some ways in which the new law can improve on the Clean Water Act. One example, SB 21 expressly requires permit denials if permits would “cause or contribute to an exceedance of downstream state or tribal water quality standards.” While the federal program allowed EPA to deny permits for violating downstream tribal water quality standards, this program mandates it. This is a big deal, especially for New Mexico’s twenty-three native nations, as it provides them with an effective way to protect their waters from upstream pollution. Implementing these provisions can also help pilot what more robust “good neighbor” provisions could look like for water quality issues.

A second example deals with funding for energy efficiency improvements for low-income households. Low-income energy efficiency improvements are an important affordability and climate solution. By cutting the amount of energy it takes to heat and cool a home, they cut utility costs for lower-income folks and make affordable housing more comfortable. The federal government has long funded such improvements through the federal Weatherization Assistance Program (WAP). But the Trump Administration has fired all of the staff implementing  the program and is seeking to zero-out funding. 

Again, New Mexico has stepped into the gap by funding its own low-income energy efficiency program, but with some differences in policy design. The Community Energy Efficiency Development Block Grant Act (CEED) provides state funds to partnerships between local governments and community-based organizations to make energy efficiency improvements in neighborhoods where lower-income folks pay too much for energy bills. While the bill was first enacted in 2022, the first round of funding is only now being implemented and the legislature appropriated a second round of $20 million this past session, in part because of federal cuts. 

Not only is this program filling gaps left behind by federal cuts to WAP, it has innovations that seek to address some criticisms of the federal programs. The legislation makes funding more flexible, so that, for example, roofs can be fixed or bathrooms can be demolded if necessary for energy efficiency improvements. And most importantly, the legislation was modelled on a pilot program in the Albuquerque’s South Valley pioneered by community-based organization Prosperity Works, a model that targets a specific neighborhood instead of individual homes across the state, promising to hit more homes with less money. 

Again, these examples should not take away from the gravity of harm being caused by the combination of federal executive branch retreat from environmental law and its support in the courts. But it is worth acknowledging that in this difficult time, there are some thin but important silver linings – ways that states are filling gaps with refinements and innovations. 

Gabriel Pacyniak is a Professor of Law at the University of New Mexico School of Law.