Is the Clean Air Act Unconstitutional? Coercion, Cooperative Federalism and Conditional Spending after NFIB v. Seblius

53 Pages Posted: 2 Sep 2016 Last revised: 12 Aug 2020

See all articles by Jonathan H. Adler

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Nathaniel Stewart

Case Western Reserve University - Institute for Global Security Law and Policy

Date Written: 2016

Abstract

The Clean Air Act (CAA) is a persistent source of federal-state conflict. Like many federal environmental laws, the CAA relies upon the cooperation of state environmental agencies for its execution and enforcement. To induce such cooperation, the CAA authorizes, even requires, the imposition of sanctions on noncooperating states, including the loss of federal highway funds. NFIB v. Sebelius, however, casts doubt on the constitutionality of the CAA’s sanction regime. Specifically, NFIB enforced limits on the use of conditional spending to induce state cooperation with a federal program and held that Congress may not use conditional spending to “coerce” state cooperation. Combined with South Dakota v. Dole, NFIB provides objecting states with a powerful set of arguments that the CAA highway fund sanctions are unconstitutional, and suggests potential challenges to other CAA sanction provisions as well.

Keywords: Clean Air Act, State Implementation Plans, Conditional Spending, NFIB v. Sebelius, Federalism, Highway Sanctions, Federal Highway Trust Fund, South Dakota v. Dole, Spending Power

JEL Classification: K11, K23

Suggested Citation

Adler, Jonathan H. and Stewart, Nathaniel, Is the Clean Air Act Unconstitutional? Coercion, Cooperative Federalism and Conditional Spending after NFIB v. Seblius (2016). 43 Ecology Law Quarterly 671 (2016), Case Legal Studies Research Paper No. 2016-31, Available at SSRN: https://ssrn.com/abstract=2832814

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

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Nathaniel Stewart

Case Western Reserve University - Institute for Global Security Law and Policy ( email )

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Cleveland, OH 44106
United States

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