0ver 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 that severely limited the flexibility of states and localities to deal with environmental problems, has led to gross inefficiencies having a negative impact on business and has 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. Section 1501 et seq., to deal with certain aspects of the problem. And, now, a recent U.S. Supreme Court decision, Printz v. United States, 117 S.Ct 2365 (1997), 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.

Take the case of clean air re inflation. 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. Section 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 "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) of the CAA 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."

• Section 110(a) (2) (A) mandates that the state implementation plan (SIP) must 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.

• Section 110 (a) (2) (H) mandates "revision" of the SIP from time to time.

• 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.

• 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. 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 percent.

These direct and self-executing commands by Congress to the ARB and South Coast AQMD are supplemented by other delegations of authority to the EPA to make further, more specific commands. For example, Section 110(k) (5) provides that, whenever the EPA finds that a SIP is substantially inadequate, the EPA "shall notify the state of the inadequacies" and "shall require the state to revise the [SIP] as necessary to correct" them.

And Section 172(d) provides that any SIP revision "required to be submitted in response to a finding" by the EPA under Section 110(k) (5) "must correct the plan deficiency (or deficiencies) specified by" the EPA

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 that may produce dubious environmental benefits but severe economic costs because "the feds made me do it."

Printz 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. The 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 10th Amendment.

The Printz majority concluded, categorically: "Me 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." Under this principle, the Brady Act provision at issue was invalidated.

Significantly, the court relied heavily upon Brown v. EPA (Brown I), 521 F.2d 827, 838-42 (9th Cir. 1975). That case involved former Section 110(a) of the 1970 amendments to the CAA that mandated California regulators submit an ozone SIP including land use and transportation controls. After California regulators chose not to do so, the EPA sought to impose certain sanctions. At issue was whether the CAA authorized such sanctions.

The 9th U.S. Circuit Court of Appeals held it did not because of the canon requiring interpretation of a statute to avoid its being unconstitutional. California regulators argued that federal power "does not extend to requiring a state to undertake such governmental tasks as might be assigned to it" Id. at 839. The 9th Circuit quoted Fry v. United States, 421 U.S. 542, 547 0 (1975), 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, the EPA "coocede[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 (Brown II), 431 U.S. 99,103 (1977).

On remand, after the 1977 CAA amendments, the 9th Circuit again stated that the claims "raise serious questions" under the 10th Amendment that it would not "dismiss lightly." Brown v. EPA (Brown III), 566 F.2d 665, 672 (9th Cir.1977).

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

In Printz, the Supreme Court specifically approved Broom I and related cases: "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 1970s, 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 ... and the District of Columbia Circuit invalidated the regulations on both constitutional and statutory grounds ... 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.

"Although we had no occasion to pass upon the subject in Broom, 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." Printz, 117 S.Ct. at 2379.80

Significantly, Printz was not the first tune that the Supreme Court had struck down federal environmental legislation. Several years earlier, in New York v. United States, 505 U.S. 144, 161-66 (1992), the court invalidated dated a statute that attempted to force states to regulate radioactive wastes by congressional standards, or take title thereto.

The court ruled: "[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. " 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 9th Circuit recently followed New York in striking down federal timber conservation legislation that had mandated 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 10th Amendment Board of Natural Resources v. Brown, 992 F.2d 937, 947 (9th Cir.1993).

One local U.S. district judge recently dismissed a claim challenging the validity of certain South Coast AQMD rules and ARB SIP revisions under the 10th 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 4th Circuits pre-Printz decision in Virginia v. Browner, 80 F.3d 869 (4th Cir.1996).

'Me Virginia court reviewed the EPA's disapproval of Virginia's rules for judicial review of permit decisions. The court rejected Virginia's 10th 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.

Virginia drew a distinction where the EPA approves, rather than disapproves, a SIP revision. It also suggested that a 10th Amendment claim would ripen where the EPA asserts power to enjoin or punish a state or local agency that does not bend to its will. Prior case law holds that the EPA may exercise such orthodox enforcement powers against states or localities when they disobey federal mandates. See, e.g., United States v. Ohio Dept. 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 used by the EPA

Based on the foregoing, it is now clear that Congress and the 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. Section 11001 et seq., requires states to establish emergency response commissions and emergency planning districts to facilitate and prepare emergency response plans. 1n light of New York and Print; 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. Section 1313 (a) (3) (A), applicable to intrastate waters, and to prepare and submit management plans for nonpoint sources. Section 1329(b). The validity of these requirements must now be called into question.

Serious questions exist regarding the constitutionality and 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.