THE CLEAN AIR ACT: 
COOPERATIVE OR CO-OPTIVE FEDERALISM

By Christopher G. Foster and Albert M. Cohen

 Over the past three decades, Congress has enacted numerous statutes dealing with environmental problems such as air pollution, water pollution, and hazardous waste. Many of these laws have required state and local authorities to promulgate and enforce regulations. This has resulted in a complex overlay of federal, state and local laws which have (1) severely limited the flexibility of states and localities to deal with environmental problems, (2) led to gross inefficiencies which have had a negative impact on business, and (3) impaired the accountability of federal, state, and local officials.

 Until recently, few seemed to question the right of the federal government to impose these mandates on state and local governments. However, two years ago Congress enacted the Unfunded Mandates Reform Act of 1995, 2 U.S.C. § 1501, et seq., to deal with certain aspects of the problem. And, now, a recent decision by the United States Supreme Court, which draws upon a long line of Supreme Court and appellate court decisions, calls into question the constitutionality of some of the most significant pieces of federal environmental legislation imposing such mandates on state and local agencies. In light of that decision, it is an appropriate time to question the tripartite structure of these complex regulatory schemes.

Take the case of clean air regulation. For over 25 years, the federal government has mandated how state and local authorities are to manage and deal with the problem of air pollution. Pursuant to the Clean Air Act, 42 U.S.C. § 7401, et seq., Congress and the Environmental Protection Agency direct how state agencies, such as the California Air Resources Board, and local agencies, including the South Coast Air Quality Management District, shall regulate emissions of various materials including hundreds of so‑called "volatile organic compounds," some of which can at some times and places contribute to the formation of ozone pollution.

Certain of the federal mandates originate with the Congress and are self-executing. Section 110(a)(1) mandates:

"Each State shall . . . adopt and submit to the [EPA] . . . a plan which provides for implementation, maintenance, and enforcement of [the federal] primary standard in each air quality region . . . within such State.

42 U.S.C. § 7410(a)(1). Section 110(a)(2)(A) mandates that the state implementation plan "shall . . . include . . . control measures, means, or techniques . . . , as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements" of the CAA. 42 U.S.C. § 7410(a)(2)(A). Section 110(a)(2)(H) mandates "revision" of the SIP from time to time. 42 U.S.C. § 7410(a)(2)(H). Section 172(c)(1) mandates that SIP revisions for nonattainment areas, such as the South Coast AQMD, "shall provide for the implementation of all reasonably available control measures as expeditiously as possible . . . and shall provide for attainment" of the federal standard. 42 U.S.C. § 7502(c)(1). Section 182(e) requires that any extreme ozone nonattainment area, of which South Coast AQMD is the only one, "shall . . . make the submissions . . . and shall also submit the revisions" described elsewhere in Section 182. 42 U.S.C. § 7511a(e). In particular, Section 182(b)(1)(A)(i) mandates that by 1993 "the State shall submit a revision to the [SIP] to provide for volatile organic compound emissions reductions" by 1996 of 15%. 42 U.S.C. § 7511 a(b)(1)(A)(i).

These direct and self-executing commands by Congress to ARB and South Coast AQMD are supplemented by other delegations of authority to EPA to make further, more specific, commands. For example, CAA Section 110(k)(5) provides that, whenever EPA finds that a SIP is substantially inadequate, EPA "shall notify the state of the inadequacies . . . ," and EPA "shall require the state to revise the [SIP] as necessary to correct" them. Id. at § 7410(k)(5). And CAA Section 172(d) provides that any SIP revision "required to be submitted in response to a finding" by EPA under Section 110(k)(5) "must correct the plan deficiency (or deficiencies) specified by" EPA. Id. at § 7502(d).

In light of these federal mandates it is not at all surprising that representatives of South Coast AQMD and ARB frequently state on the public record that they adopt or enforce a particular regulation which may produce dubious environmental benefits but severe economic costs because "the feds made me do it." Perhaps this justification will be heard no more.

On June 27, 1997, the Supreme Court decided the important case of Printz v. U.S., 117 S.Ct. 2365 (1997). That case involved the constitutionality of the Brady Gun Control Act. It directed state law enforcement officers to participate in the federally mandated program by requiring them to conduct background checks on prospective handgun purchasers. Petitioners, the chief law enforcement officers for counties in Montana and Arizona filed actions challenging the constitutionally of this provision. Specifically, they contended that Congressional action compelling state officers to execute federal laws was unconstitutional under the Tenth Amendment to the U.S. Constitution, which reads:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

After conducting a detailed analysis of the Tenth Amendment and its history, the majority concluded, categorically: "The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." 117 S.Ct. at 2384. Under this principle, the Brady Act provision at issue was invalidated. Id.

Significantly, the Court in Printz relied heavily upon Brown v. EPA, 521 F.2d 827, 838-842 (9th Cir. 1975) ("Brown I"). That case involved former Section 110(a) of the 1970 amendments to the CAA which mandated that California regulators submit an ozone SIP including land use and transportation controls. After California regulators chose not to do so, EPA sought to impose certain sanctions. At issue was whether the CAA authorized such sanctions. The Ninth Circuit held it did not because of the canon requiring interpretation of a statute to avoid its being unconstitutional. 521 F.2d at 831, 832, 839, 840, 842. California regulators argued that federal power "does not extend to requiring a state to undertake such governmental tasks as might be assigned to it." (Emphasis omitted.) Id. at 838. The Ninth Circuit quoted one Supreme Court case for the following proposition: ". . . Congress may not exercise power in a fashion that impairs the States' integrity or their ability to function effectively in a federal system." Id. at 842.

On review by the Supreme Court of Brown I and other similar cases, EPA "concede[d] the necessity of removing from the regulations all requirements that the state submit legally adopted regulations" and, based thereon, the Court vacated and remanded each decision, including Brown I. EPA v. Brown, 431 U.S. 99, 103 (1977) ("Brown II").

On remand, after the 1977 CAA amendments, the Ninth Circuit again stated that the claims "raise serious questions" under the Tenth Amendment which it would not "dismiss lightly." Brown v. EPA, 566 F.2d 665, 672 (9th Cir. 1977) ("Brown III").

Notwithstanding Brown I, Brown II, Brown III, and related cases, Congress inserted more mandates to the states in the 1990 amendments to the CAA and EPA has continued to instruct South Coast AQMD as to what regulations to adopt and to dictate to ARB what SIP revisions to approve.

In Printz, the Supreme Court specifically approved Brown I, Brown II, and related cases, as follows:

"Finally, and most conclusively in the present litigation, we turn to the prior jurisprudence of this Court. Federal commandeering of state governments is such a novel phenomenon that this Court's first experience with it did not occur until the 1970's, when the Environmental Protection Agency promulgated regulations requiring States to prescribe auto emissions testing, monitoring and retrofit programs, and to designate preferential bus and carpool lanes. The Courts of Appeals for the Fourth and Ninth Circuits invalidated the regulations on statutory grounds in order to avoid what they perceived to be grave constitutional issues, see Maryland v. EPA, 530 F.2d 215, 226 (C.A.4 1975); Brown v EPA, 521 F.2d 827, 838-842 (C.A.9 1975); and the District of Columbia Circuit invalidated the regulations on both constitutional and statutory grounds, see District of Columbia v. Train, 521 F.2d 971, 944 (C.A.D.C. 1975). After we granted certiorari to review the statutory and constitutional validity of the regulations, the Government declined even to defend them, and instead rescinded some and conceded the invalidity of those that remained, leading us to vacate the opinions below and remand for consideration of mootness. EPA v. Brown, 431 U.S. 99 (1977).

"Although we had no occasion to pass upon the subject in Brown, later opinions of ours have made clear that the Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs."

Id. at 2379-2380.

Significantly, Printz was not the first time that the Supreme Court had struck down federal environmental legislation. Several years earlier, in New York v. U.S., 505 U.S. 144, 161-66 (1992), the Court invalidated a statute which attempted to force states to regulate radioactive wastes by Congressional standards, or take title thereto. The Court ruled, as follows:

"[T]he Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States .... [E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. [Citations.]"

Id. at 166. The Court held that Congress may not in that way command states or localities to regulate "according to the instructions of Congress." Id. at 175-76. The government, it said, may not "conscript" state and local governments as its agents. Id. at 178. This basic principle of federalism is designed to deter "the avoidance of personal responsibility" on the part of regulatory officials. Id. at 183.

The Ninth Circuit has recently followed New York in striking down federal timber conservation legislation which had mandated that states promulgate regulations implementing certain timber export bans. The statute contained "direct commands to the states to regulate according to Congress' instructions" and, therefore, violated the Tenth Amendment. Board of Natural Resources v. Brown, 992 F.2d 937, 947 (9th Cir. 1993).

One local U.S. District Court judge has recently dismissed a claim challenging the validity of certain South Coast AQMD rules and ARB SIP revisions under the Tenth Amendment, finding that federal actions merely "encourage [d]" the local and state regulations at issue, but did not "commandeer" the regulatory processes of ARB and South Coast AQMD. The Court's order did not discuss Printz nor its approval of Brown I and Brown II. Instead, the court cited the Fourth Circuit's pre-Printz decision in Virginia v. Browner, 80 F.3d 869 (4th Cir. 1996).

The Virginia court reviewed EPA's disapproval of Virginia's rules for judicial review of permit decisions. The court rejected Virginia's Tenth Amendment challenge, holding that the CAA sanctions at issue there (withholding highway funds, limiting new construction of emissions sources, and implementing a federal permit program) merely "induce" state action, but do not "coerce" it. 80 F.3d at 880-83.

Virginia drew a distinction where EPA approves, rather than disapproves, a SIP revision. Id. at 881 n. 6. It also suggested that a Tenth Amendment claim would ripen where EPA asserts power to enjoin or punish a state or local agency which does not bend to its will. Id. Prior case law holds that EPA may exercise such orthodox enforcement powers against states or localities where they disobey federal mandates. E.,. .., U.S. v. Ohio Department of Highway Safety, 635 F.2d 1195,1200-04 (6th Cir. 1980). Thus, the constitutionality of CAA provisions, EPA actions or inactions, and ARB and South Coast AQMD regulations may turn on the administrative posture in which the case arises and the remedies (mere encouragement or outright compulsion) available to or utilized by EPA.

Based on the foregoing, it is now clear that Congress and EPA do not have unfettered constitutional power to require states to implement federal regulatory programs. This calls into question the constitutionality of several key environmental statutes, in addition to the CAA.

For example, the Emergency Planning and Community Right-To-Know law, 42 U.S.C. § 11001, et. MM., requires states to establish emergency response commissions and emergency planning districts to facilitate preparation of emergency plans and to prepare emergency response plans. In light of New York and Printz the legality of these requirements is in question.

The Clean Water Act also requires states to implement federal standards. For example, it requires states, among other things, to adopt certain water quality standards (33 U.S.C. § 1313(a)(3)(A)) applicable to intrastate waters and to prepare and submit management plans for nonpoint sources (id. at § 1329(b)). The validity of these requirements must now be called into question.

Serious questions exist regarding the constitutionality and, indeed, the wisdom of environmental statutes imposing unfunded mandates on state and local regulators. Federal, state, and local "triplication" has greatly increased regulatory complexity, significantly reduced the flexibility of state and local governments to devise creative and effective solutions to environmental problems, and made it virtually impossible to direct to the appropriate level of government credit for regulations we respect or blame for those we condemn.