Thursday, December 8, 2016

ELC Essay #6: Zero-Sum Environmental Governance

By Shannon Roesler

The political climate that facilitated the passage of major pollution-control statutes, such as the Clean Air Act (CAA) and the Clean Water Act (CWA), may seem difficult to imagine today. When Congress passed the major pollution-control laws in the 1970s, it was responding to a growing consensus that federal environmental regulations were essential to protection of human health and the environment. In their absence, many feared that states would engage in a “race to the bottom,” setting lax environmental regulations in an effort to attract industry and economic growth. Policymakers also recognized that environmental pollution increasingly presented problems of scale; pollutants emitted into the air and discharged into water bodies did not always remain within the political borders of a state. A federal role was perceived as a necessary means to ensure the efficient regulation of interstate pollution.

Today, political support for new environmental regulations at the federal level appears less uniform, particularly given the resistance to federal regulation by a sizeable number of states. Along with industry, states now routinely file lawsuits challenging new environmental regulations as abuses of federal power. Instead of thinking seriously about shared governance, the political default in many states is to litigate with the hope of invalidating the federal rule. This turns environmental governance into a zero-sum jurisdictional game; if the federal rule is invalidated, the state wins, and if it stands, the state loses. When states treat environmental governance as a zero-sum game, they preclude the consideration of win-win scenarios. Along the way, time, effort, and money are wasted in protracted legal battles that delay important protections for human health and the environment.

Somewhat ironically, today’s landscape of state-federal litigation takes place against a model of shared state-federal governance. Every student of federal pollution-control laws learns that they depend on a regulatory model often called “cooperative federalism.” Under this model, the EPA uses its rulemaking authority to set minimum standards limiting the release of harmful pollutants into the environment, and state-level agencies typically implement and enforce these standards through permit processes. States also have some flexibility in deciding how to implement standards and meet other federal requirements. For example, under the CAA program that establishes ambient air quality standards for certain harmful pollutants, like carbon monoxide and ground-level ozone, states draft their own state implementation plans for meeting these standards. State policymakers therefore have an opportunity to tailor their emission-control policies to fit their economic and social needs.

            This model is theoretically “cooperative” because it depends on voluntary cooperation by state governments. States implement CAA and CWA permitting and enforcement because they prefer to have control over these processes and often receive federal money and assistance in return. But if states opt out (or fail to meet the federal requirements), the federal government can step in and implement the regulatory program at issue, an arrangement often called conditional preemption.

            Despite this cooperative model, the current litigation practices of some states tell an uncooperative—even hostile—story. Consider Texas. According to the Texas Tribune, Texas has sued the Obama Administration 43 times. In over half of these cases (25 to be exact), Texas challenged EPA action regarding air and water quality standards. A sizeable subset (8) involve climate change regulation. The total bill for these challenges adds up to over $1.8 million.

            Texas is not, of course, the only state to challenge federal environmental laws. Since the EPA issued its Clean Power Plan last year, 28 states, along with utilities, energy companies and other industry and labor groups have filed dozens of lawsuits alleging that EPA’s plan for reducing carbon emissions from power plants violates the CAA and unconstitutionally intrudes upon the states’ authority to set energy policy. (These suits are now part of consolidated litigation before the U.S. Court of Appeals for the D.C. Circuit, which will hear the case en banc this September.) The Clean Power Plan sets emissions targets for each state with the goal of achieving a 32% reduction from 2005 levels by 2030. After the Supreme Court made the unusual decision to stay EPA’s plan last spring, 19 states suspended their planning processes under the Clean Power Plan, further delaying meaningful planning for emissions reductions and threatening to undermine U.S. compliance with the Paris climate change agreement. Notably, states are divided on the issue; 18 states, along with various local governments, nonprofits, and industry groups have filed briefs in support of the plan.

            Roughly as many states also challenged the EPA and U.S. Army Corps’ 2015 Clean Water Rule, a regulation that seeks to clarify which water bodies and wetlands are covered by the CWA. Supreme Court opinions regarding the relevant CWA language are splintered and leave many questions unanswered. In the Clean Water Rule, EPA and the Corps attempted to make their approach to CWA jurisdiction more predictable and transparent. But rather than waiting to see how the Clean Water Rule would function in practice, many states jumped to the zero-sum strategy: sue to invalidate. In litigation against both the Clean Water Rule and the Clean Power Plan, states have argued that federal regulation unconstitutionally alters the state-federal balance of power by expanding federal regulatory power into areas traditionally regulated by the states.

Significantly, this zero-sum view of environmental governance is not confined to the offices of state attorneys general. Legislators in several states have introduced bills and resolutions that suspend state planning efforts under the Clean Power Plan or characterize the plan as an abuse of federal power. For example, a resolution introduced in the Arizona legislature calls on the state governor and attorney general to defend the state against “overreaching regulations.”

Some states may have valid objections to aspects of the Clean Power Plan and the Clean Water Rule. The critical question, however, is whether a zero-sum litigation strategy is the best way to resolve these concerns. Consistent with the CAA’s shared governance structure, the Clean Power Plan recognizes that states will need time to develop emissions-reduction plans; it also allows states flexibility in how they meet their reduction targets and recognizes the role of interstate cooperation through regional trading plans. In the absence of comprehensive federal climate legislation, the Clean Power Plan is at present the only realistic road toward meeting our national responsibility to reduce greenhouse gas emissions. Litigation is only delaying meaningful action. Moreover, even if states “win” the jurisdictional battle, the victory will be costly. In addition to litigation costs, states may lose opportunities to shape national environmental policy and to mitigate costly environmental and public health risks. As the “cooperative” ideal of environmental federalism recognizes, environmental regulation should not be a zero-sum game.

Of course, the nature of cooperative (or competitive) federalism shifts with each administration’s regulatory agenda. This week, President-elect Donald Trump chose Oklahoma Attorney General Scott Pruitt as his nominee for EPA Administrator. As reported in the New York Times and elsewhere, Pruitt has helped lead the coalition of Republican attorneys general in their zero-sum litigation of federal environmental regulations, including the Clean Power Plan. If he is confirmed as the Administrator of the EPA, he will likely oversee efforts to dismantle these and other regulations. We may then see some states play a very different role: one designed to defend the EPA and cooperative federalism. States that acted early to curb carbon emissions, for example, are likely to oppose federal efforts to reconsider regulations and climate policies. But these kinds of court challenges are not examples of zero-sum strategies. Instead, they are efforts to preserve the basic architecture of environmental law, a structure that promotes jurisdictional pluralism without jeopardizing minimum standards and international commitments.

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