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Federalism may be gasping, but it’s not dead
From the May 2001 CEI UpDate
Federalism may be gasping, but it’s not dead. State officials can resuscitate this founding principle, but only if willing to put up a fight. That’s the critical lesson from a new book by Becky Norton Dunlop, former Secretary of Natural Resources under Virginia Governor George Allen (1994-1998).
In Clearing the Air, Dunlop showcases several important examples in which she and her colleagues tackled federal regulators and wrested back states’ rights. Winning some substantial victories, the Allen team saved taxpayers millions and freed state residents of needless, time-wasting bureaucracy.
Dunlop often found herself at odds with the US Environmental Protection Agency (EPA). While few other states have been willing to charge against this agency, Clearing the Air demonstrates that such challenges offer great promise for advocates of states’ rights.
Indeed, systematic research of the EPA record confirms that fact. A recent Reason Foundation study conducted by Jonathan Adler finds that the EPA loses a majority of the legal cases challenging agency rules–more losses than any other agency. The EPA prevails in only about one third of cases challenging its rules (not counting cases tossed out on grounds not related to the substance of the challenge). Dunlop was wise enough to see then what this study reveals now: The EPA has increasingly stepped beyond the bounds of its legal authority.
Dunlop and the Allen Administration’s contributions are most apparent in the first two critical victories outlined in the book. In the first case, Dunlop fought the EPA’s unconstitutional attempt to impose California automobile standards in the Northeast. These standards would have required automobile manufacturers to produce, and dealers to sell, “zero-emission” vehicles (which basically meant electric cars) throughout 12 Northeastern states.
As a member of an interstate commission created by the Clean Air Act, Dunlop’s was among the few voices speaking against California standards. The commission voted (8-4) to recommend that EPA apply California automobile standards to the region.
During the months before the agency officially mandated that policy, Dunlop pointed out considerable problems. Electric cars emit far more carbon monoxide than regular cars, create disposal problems associated with lead acid batteries, and they simply transfer (rather than eliminate) emissions from tailpipes to electricity facilities. Plus, the cars could only travel about 70 miles before requiring hours of recharging, and at the time would have cost as much as $100,000 a car for a two-year lease.
Nonetheless, EPA Administrator Carol Browner followed the commission recommendation and mandated the California car for the entire Northeast. Most states would have let it end there. But Dunlop sued the EPA. And won. The court held: “EPA’s rule does not respect states’ independent authority; it removes it.”
In Dunlop’s second case study, Carol Browner demanded that Virginia set up centralized government emission testing stations rather than have local gas stations conduct tests. Browner insisted that the state set up a little over a dozen testing stations, rather than allow testing at repair shops.
Had Browner succeeded, residents would have found themselves waiting hours to get their cars tested. For cars that failed, drivers would have to go back and forth between emission station and repair shop until their cars passed. “Northern Virginia drivers, in other words, would be ping pong balls in a game of bureaucratic table tennis,” she writes.
For months, Dunlop held firm against centralized testing, and Browner finally backed down when the Republican Congress convened in 1995 and threatened to reopen the Clean Air Act. Had Dunlop relented, drivers might be waiting at centralized testing stations nationwide.
State officials should pay heed. If they no longer want to take a backseat to federal bureaucrats, as Dunlop’s book reveals, they simply need to learn how to drive.