Should EPA's practice of “overfiling” continue?

Abstract This article evaluates the Environmental Protection Agency's (EPA's) practice of “overfiling” state enforcement actions. The foundation for “authorized” state environmental programs is to administer and enforce those programs under a federal‐state partnership. “Authorized” states should have discretion and flexibility in permit and enforcement decisions. “Overfiling” as a form of EPA enforcement oversight of a state's exercise of discretion erodes the trust upon which an effective federal‐state partnership depends. One U.S. Court of Appeals has found that EPA lacks the authority to “overfile” an “authorized” state's enforcement case.