In 2017, former EPA Administrator Scott Pruitt outlined a series of environmental priorities in his “Back-to-Basics Agenda.” Among them was delegating more responsibility to state governments—a call that evoked over 40 years of “tug of war” between state and federal authority over environmental regulation. This question of the proper distribution of power in environmental policy—referred to as federalism—first became salient in the early 1970s with the creation of the U.S. Environmental Protection Agency (EPA) and the crystallization of the federal government’s role in environmental issues.
Since then, EPA has embraced the concept of cooperative federalism in its approach to environmental issues. Often, this means that while states are required to follow and enforce federal regulations, they are given the authority to establish their own laws, so long as these laws are compliant with or more stringent than the federal standards. This is the case in California, where the state has adopted air quality standards that are more strict than their federal counterparts under the Clean Air Act (CAA). In some cases, the federal government may even defer to state authority on environmental matters. While the Surface Mining Control and Reclamation Act (SMCRA) establishes federal regulations for mining, states are permitted to entirely replace these regulations by establishing their own.
However, this division of power between states and the federal government has not always been politically amicable. Challenges to what states view as unreasonable or unconstitutional overreaches of federal authority have not been uncommon in the environmental arena. Challenges to the use of the Commerce Clause—the constitutional basis for Congress’ ability to regulate interstate environmental activities—represent the clash between federal authority and state sovereignty.
In Alabama-Tombigbee Rivers Coalition v. Kempthorne, a coalition of businesses argued that the U.S. Fish and Wildlife Service (FWS) violated the Commerce Clause when it listed the Alabama sturgeon under the Endangered Species Act (ESA). The group claimed that because the sturgeon population did not cross state lines, the responsibility for the species’ protection was a state matter rather than a federal one. This challenge was ultimately rejected, as were many like it. Nonetheless, similar challenges continue to be made, underscoring the ambiguity of the legal framework governing federalism and the environment.
Not all federalism challenges, however, have spawned from perceived federal overreach. In Massachusetts v. Environmental Protection Agency, a group of 12 states claimed that EPA had not done enough to uphold its legal responsibility to regulate carbon dioxide emission from motor vehicles under the CAA. The U.S. Supreme Court ultimately ruled in favor of Massachusetts, concluding that the CAA not only included carbon dioxide under its sweeping regulation of “air pollutants,” but that carbon emissions also fell under EPA regulatory authority. The Massachusetts case further illustrates the complexity of the federalism debate in determining the proper appropriation of power in regulating the environment.
The current Administration has certainly not been insulated from these issues. In August of 2018, President Donald Trump announced a proposal to roll back President Barack Obama-era fuel efficiency standards for cars and trucks. Included in this proposal was a promise to revoke California’s special authority to regulate car and truck emissions, as well as its Zero Emission Vehicle Program. The proposed rollback would break with decades of cooperative federalism precedent that allows states to implement and enforce regulations more stringent than the federal standards. And while California and the Trump Administration had been engaged in settlement discussions over the proposal, just last week, the White House announced that it formally ended those talks and would move forward with its plans to roll back the standards. This uncertainty with regards to the federal-state relationship perhaps presents an opportunity for a rethinking or restructuring of this relationship. At least that is how groups like the Environmental Council of the States (ECOS) see it. ECOS has proposed a restructured form of environmental federalism—one that seeks to take advantage of increasing state autonomy in the environmental arena. “Cooperative Federalism 2.0”—as it is called—would place states as the primary implementers of environmental regulations, while EPA would operate through a number of different roles including collaboration, advisory, and support. Further, a recent ELI publication, The Macbeth Report: Cooperative Federalism in the Modern Era, presents its own suggestions for moving toward a new cooperative federalism including utilizing third-party brokers in state-federal disputes, refining and clarifying the federal enforcement process, and taking full advantage of the private sector and technological innovation, just to name a few.
The prospect of a new cooperative federalism, while exciting, raises a number of questions. How can federal and state authorities foster amicable cooperation amidst the current fractured political climate? How can the federal government balance oversight and state autonomy? How can states best leverage technological and regulatory innovations to implement sound environmental policies? What strategies exist for resolving disputes that arise when state and federal authorities clash?
ELI and leading experts in the field will be exploring these questions and more in an upcoming webinar hosted on Wednesday, February 28, from 12:00 pm to 1:30 pm.
The webinar will cover the strengths and weaknesses of cooperative federalism as well as the opportunities presented by increased state autonomy in environmental protection.
This event is open to the public and free for members of ELI. Please register by February 26. Event details and RSVP information can be found here.