Debunking Revisionist Understandings of Environmental Cooperative Federalism: Collective Action Responses to Air Pollution

Abstract

From its inception in 1970, modern environmental law has been a joint venture between the federal government and the states. When Congress enacted the Clean Air Act (CAA) of 1970 it crafted the cooperative federalism model reflected in much of the pollution control legislation enacted in the ensuing decade. Despite decades of experience with the CAA’s version of cooperative federalism, fundamental disagreements persist not only about the merits of that model, but also about what Congress intended when it delineated EPA and state roles in the 1970 Act and subsequent amendments. Some courts and commentators characterize the CAA as a statute that makes EPA the dominant partner, with states being afforded the opportunity states to participate in fashioning air pollution control policy. Others claim that Congress intended to make EPA and the states equal partners.

This chapter demonstrates that the vision of CAA cooperative federalism as an equal partnership bears no resemblance to the allocation of power Congress established in adopting the CAA. It emphasizes the predominant role of EPA vis-à-vis the states in various CAA programs, refuting recent characterizations of its cooperative federalism design as intended to create an “equal partnership” between EPA and the states. The legislative history reveals that Congress crafted key statutory programs to address collective action problems that it regarded the states as incapable of solving. The chapter also briefly examines the desirability of this cooperative federalism model both in controlling conventional air pollution and in seeking to address greenhouse gases (GHGs) that contribute to climate disruption. The chapter concludes that the CAA’s delegation to EPA of the dominant role in controlling conventional air pollution, subject to state power to exceed federal minimums, has largely succeeded in addressing conventional air pollution problems. Moreover, this version of cooperative federalism promises to be an effective approach for regulating GHG emissions.

Keywords: air pollution, Clean Air Act, cooperative federalism, collective action, climate change mitigation

JEL Classification: K23, K32, I18