Blog author: jballor
by on Wednesday, October 29, 2008

There’s a lingering issue that continues to bother me about the so-called “global warming” Supreme Court case from 2007, Massachusetts v. EPA (05-1120), and that is a nagging concern about federalism and environmental standards.

As it stands currently, individual states are often prevented from enacting tougher legislation or regulation regarding some forms of pollution than the federal EPA standards. In order for a state EPA to partner with the federal EPA, be “authorized,” and thus receive funds, “a state must have enforcement programs and statutes that are essentially as stringent as the federal programs.”

One basic argument that the court found cogent in the Mass. v. EPA case was that individual states were prevented from creating standards that were more stringent regarding CO2 emissions than the EPA, and that since the EPA had not enacted any serious level of restriction, the states were unable to protect their environment.

This bothers me in part because one of my basic political impulses is a federalist one, an emphasis on the rights and sovereignty of individual states. The relationship between the federal and state environmental agencies seems to me to be fundamentally tyrannical, in that it overrides the ability of states to regulate themselves on these matters.

If you coopt the sovereignty of someone and then let your responsibilities lapse, then you have committed a pretty serious injustice. In 2007, the state of California sued to get the EPA to allow it to enact cleaner air standards, a right supposedly granted under the Clean Air Act. The EPA needed to agree to the tougher standards by granting a waiver, which it declined to do.

So there’s that political concern. But there’s also an economic concern, and this cuts both ways. Most often the federal government invokes the commerce clause to argue that it is within its rights and responsibilities to promote economic trade and stability by enacting nationwide standards. But in the case of environmental standards, that economic argument might not always be salient.

In a recent New York Times column, Tom Friedman calls for “a national renewable energy standard that would require every utility in the country to produce 20 percent of its power from clean, non-CO2-emitting, energy sources — wind, solar, hydro, nuclear, biomass — by 2025.” Friedman repeats the typical argument justifying national standards: “About half the states already have these in place, but they are all different. It would create a huge domestic pull for renewable energy if we had a uniform national mandate.”

John Whitehead, blogging at Environmental Economics, gives expression to the basic economic and political concern I had about the Massachusetts v. EPA decision as well as proposals for national mandates on environmental standards:

Most every environmental economics textbooks explain why uniform national standards are inefficient. Since benefits and costs are regionally different, it makes sense to adopt non-uniform standards — if standard adopting is a must.

Why not give federalism free reign on environmental issues, let states compete against each other, and see how things play out? If California wants to experiment with enacting tougher restrictions while attempting to remain economically competitive, why not see if the state is able to pull it off?


  • Don

    As with any bureacratic issue this is “complicated” but part of the problem as you’ve outlined it is Federal environmental law is only constitutional within the interstate commerce framework.* For this reason the courts generally defer to Fed EPA as the final arbiter of environmental law and standards in the U.S.

    *see for ex:
    http://www.law.buffalo.edu/Academics/courses/672/EL1Materials/ComCl.htm

  • Tracy M Jue

    I think the EPA went beyond their jurisdiction in not accepting the State’s offer to enforce stricter regulations on CO2 releases. EPA should have at least concurred with states compliance to the regulatory framework and if the State wants to exceed the regulatory framework they can do so, by having the State or communities mandating the regulations. The county can implement orders such as increasing the number of carbon monoxide monitors in public places to encourage county residents to drive fuel efficient cars and of course economics will drive residents to purchase fuel efficient cars.

  • Don

    “I think the EPA went beyond their jurisdiction…” EPA’s issue wasn’t jurisdictional. The Administrator’s rather reasonable argument was a new compliance program with unknown – but potentially significant – economic or regulatory impacts wasn’t something EPA should establish administratively, but required new legislation from Congress.

    Historically every major regulatory action had some congressional intent behind it to avoid the perception that unelected EPA bureaucrats were legislating from their offices in D.C. New legislation was required in the 70′s with hazardous waste/RCRA, 80′s with PCB elimination, and the 90′s with the Clean Air Act amendments and ODS elimination. The process should have begun with new legislation (and funding!!) from Congress setting standards for EPA regulation of CO2, which would have included guidance on what could be delegated to the jurisdictions of state/county EPA/DEQs, all of which would then be subject to review by SCOTUS or state courts. This is Admin Law 101.

    Instead, the states short-circuited the issue by successfully going through SCOTUS and forcing change at EPA without any clear guidance other than “go regulate CO2.” Why did they have to go this way? Because other than a few vocal states (CA and New England states primarily), Congress had no national legislative mandate or majority to regulate CO2.

    Second, “Stricter” based on what? EPA still maintains it doesn’t have any way to quantitatively define the impacts of CO2 on climate change to the extent that it can be regulated. If they can’t establish a Federal benchmark, there’s no way to determine whether state regulation overachieves or underachieves public health and environmental goals.

    Again, the usual process is EPA gets congressional mandates (and funding!!) and turns to NIH, Interior, NOAA and a host of other state and federal agencies and academia to begin to hammer out what level of a chemical is harmful to people and the environment. Through a long process of engagement, which includes the public and the regulated industry, EPA officiates a final compromise. That’s tough enough when you’re talking PCBs that have measurable toxicity rates and are only created in industrial processes. Quite another issue altogether for something as ubiquitous at CO2.

    How much is too much? 100ppm? 500ppm? How about zero emissions? That would make the three of us CO2 polluters every time we exhaled. Whether it’s regulating the number of “takings” under the Endangered Species Act, or calculating cumulative risk under EPCRA, or measuring NOx and SOx under the Clean Air Act, EPA regulation is a quantitative affair. And despite what many believe, there is not enough quantitative analysis in current climate change science for EPA to establish a manageable regulatory framework.

    Finally, you’re right that individual states can pass their own state or county regulations. The presumption is state law is crafted by representatives of that state’s public and private interests. This could be Jordan’s argument in part. But at the heart of things, a quick scan of relevant news articles makes it clear these governors wanted a NATIONAL climate change mandate from EPA, not just access to their own regulations.

    [By the way, Jordan - Whitehead's non-uniform argument doesn't hold up in this case. Proponents of CO2 regulation argue climate change as a global issue with local impacts. Your car in Duluth is warming the climate in San Jose, and so on. Only nation (or global) standards suffice...]

    *If there’s any damage to Federalism here, it’s that a few vocal governors and their lawyers were able to use SCOTUS to bully EPA into crafting national CO2 standards without Congressional intent.* And that these standards bring enormous unforeseen economic and environmental risk to the rest of the Union without its consent.

  • Tracy

    Don: I agree EPA’s direction and decisions are drived by funding. Unfortunatley I seen so many funding programs for CO2 that really probably does not really effect us until years later. As I know clean up of hazardous waste is still in continuation since the 70′s. In relation to the CO2 issue, the EPA won’t regulate for years. Thanks for the informative information.

  • Joe DeVet

    The thing that bothers me about the ruling is the tacit assumption that human-generated CO2 is indeed a problematic cause of global warming, or that the latter is a significant enough problem to warrant the kind of action that would make any difference. Such action would impoverish a large percentage of our population, drastically restructuring the cost profile of all our goods and services. All for a mostly politicized and falsely hyped theory which is far from being supported by proportionately-credible evidence.

    The ruling, therefore, while correct in itself left out the most substantive reason why it was the best answer, legalisms aside.

  • http://signaleer.blogspot.com/2009/01/redefining-federalism.html Signaleer

    Well, I suppose it helps if you, first, don’t know what Federalism is.

    There’s a spate of people supportive of the recent move by California to impose stricter vehicle emissions than current Federal law requires….