CEI Pushes Air Law Reform To Bolster State-EPA ‘Cooperative Federalism’

Conservative think tank the Competitive Enterprise Institute (CEI) is suggesting Congress pursue Clean Air Act amendments to correct what it sees as an imbalance in the air law's "cooperative federalism" balance between EPA's regulatory powers and those given to states, saying lawmakers need to strengthen states' air law authority.

Although the 113th Congress did not take up air law reform, House Energy & Commerce Committee power panel Chairman Ed Whitfield (R-KY) hosted a series of forums last year on potential options for reforming the law. And if Republicans win both chambers of Congress after the November elections, that could potentially boost prospects for the GOP to move legislation that would achieve their goals on restricting EPA's air and other rules.

CEI in a new report says that one of those goals should be restoring a more equal relationship between states and EPA in order to satisfy the goal of cooperative federalism. "[D]uring the Obama administration, there has been a marked shift away from harmonious relations between" states and EPA, and that this "transition from cooperative to combative federalism has led to some serious problems for the nation's air quality policy," according to the report.

Examples of EPA's alleged actions that have created an imbalance in cooperative federalism include EPA "takeovers" of state air quality programs with the issuance of federal implementation plans (FIPs), in which the agency directly writes pollution control plans for states whose air quality plans are either missing or that it rejected, according to CEI's William Yeatman, who wrote the report on EPA's "undermining" of cooperative federalism.

For example, Yeatman says the the agency's issuance of FIPs have "increased precipitously since President Obama took office." Furthermore, the report says 98 percent of the 51 Clean Air Act FIPs the Obama administration has promulgated are of "dubious legitimacy." Yeatman later clarified during an interview with Inside EPA on Sept. 17 that the number of FIPs EPA has issued has risen to 52 since CEI published the report last month.
CEI also claims environmental groups have "captured" EPA by "investing in electoral politics" in return for power in environmental policy making. That echoes concerns from Senate Environment & Public Works Committee ranking member David Vitter (R-LA), who says environmentalists have too much influence on EPA policies.

Yeatman also criticizes what Republicans and others call "sue and settle" — a strategy they claim environmentalists pursue in which they file rulemaking deadline suits against EPA, but then reach consent decrees with the agency setting binding deadlines for issuing new major rules. "EPA has effectively undermined states' authority in favor of environmental special interests in the implementation of the Clean Air Act," he writes.

EPA did not respond to a request for comment by press time.

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