When it crafted legislation to fight air pollution, Congress relied on America’s unique system of federalism. The 1970 Clean Air Act establishes a “division of responsibilities” between the state and federal governments commonly known as “cooperative federalism.” In practice, this means that the federal agency sets minimum standards, which states are left to meet however they best see fit, subject to U.S. Environmental Protection Agency (EPA) approval. Pursuant to this partnership, “[t]he state proposes” and “the EPA disposes.” Typically, states shoulder 80 percent of the costs of implementing regulations under the Clean Air Act.
For most of the Clean Air Act’s history, states and the EPA have worked well together. However, during the Obama administration, there has been a marked shift away from harmonious relations between these co-sovereigns. This transition from cooperative to combative federalism has led to some serious problems for the nation’s air quality policy:
- EPA takeovers of state air quality programs, known as Federal Implementation Plans (FIPs), have increased precipitously since President Obama took office. The Obama administration has imposed more FIPs than the sum of the previous three administrations—multiplied by 10.
- Ninety-eight percent (50 of 51) of Obama-era Clean Air Act FIPs are of dubious legitimacy.
- Environmental special interests have “captured” the EPA. In return for investing in electoral politics, green groups have been given the reins to environmental policy making at the EPA.
- By using a legal strategy known as “sue and settle,” the EPA has effectively undermined states’ authority in favor of environmental special interests in the implementation of the Clean Air Act. This involves the agency implementing policy changes in response to lawsuits by environmental pressure groups, rather than pursuant to any explicit delegation by Congress. Sue and settle litigation has tripled during the Obama administration.
Two legislative solutions would restore the proper balance of power between the state and federal governments pursuant to the Clean Air Act. The first would level the balance of justice when state and federal governments disagree on how to implement the Clean Air Act. The second would ameliorate the impacts of collusive “sue and settle” policymaking between EPA and special interests, to the exclusion of the states.