Someone Left the Cake Out in the Rain: The Dissolution of Cooperative Federalism in the Trump Era

Posted on October 30, 2019 by Vicki Arroyo

The Trump Administration’s recent lawsuit against California’s climate change policies has cast a spotlight on a stark and troubling reality.  U.S. v. California is just the latest salvo in a sustained, direct assault by EPA and the Administration on the bedrock principles of states’ rights and “cooperative federalism.” An assumption that states will work together with the federal government to solve our most pressing problems is a crucial element in many of our environmental laws, including the Clean Air Act and the Clean Water Act. 

Cooperative federalism has been described as a “marble cake,” blending the rights and responsibilities of government entities at all levels. Together, those at different levels of government can accomplish more than any one level could do alone to advance public policy goals and protect the public, while enabling states and local communities to tailor the particulars to meet the needs of their constituents.

Since its founding in 1970, in both Republican and Democratic administrations, EPA faithfully followed this powerful approach to address threats like hazardous air pollution. Even during the turbulent Reagan era, when I was a career official in the EPA Office of Air and Radiation and federal action on air toxics was painfully slow, we not only allowed states to regulate beyond federal minimums, we actively    encouraged their actions. States were closer to those affected by pollution and helped make up for slow federal progress on air toxics standards.   

In fact, frustrated by the lack of progress, I left D.C. to help draft and enact legislation in my home state of Louisiana that cut air toxics emissions by half in just four years. My former colleagues back at EPA continued their work on the 1990 Clean Air Act Amendments signed into law by President George H.W. Bush, and were able to implement regulations requiring the use of advanced technologies to reduce air toxics and apply a “residual risk” assessment. Together, state and federal action delivered major cuts in pollution that causes cancer, miscarriages, and other serious health problems.

Now we face an even greater planetary threat—climate change—and state action has been one of the few bright spots in an overall grim U.S. policy picture. Thirty years ago, when I represented Louisiana Governor Buddy Roemer on a bipartisan National Governors’ Association (NGA) task force on climate change, we recognized the importance of national and global action. We also saw major roles for states in areas like electric power and transportation, where they hold significant authority over planning, investment, and regulation. 

Where the federal government has largely dropped the ball on climate law and policy, states and cities from across the U.S. have stepped up to the plate. They sued EPA (successfully) to force regulation of carbon dioxide using Clean Air Act authority in Massachusetts v. EPA, and (unsuccessfully) to hold major polluters responsible for damage to their jurisdictions in Connecticut v. AEP. Meanwhile they moved forward in their own jurisdictions to promote clean energy, cut greenhouse gas emissions, and to respond to the impacts of climate change.   

State action has been impressive and bipartisan, exemplifying Supreme Court Justice Lewis Brandeis’s description of states as the “laboratories of democracy.” The Regional Greenhouse Initiative, embraced by nine states in the Northeast, many with Republican governors, has successfully cut emissions from power plants and strengthened the clean energy economy. In California, Republican Governor Arnold Schwarzenegger and the legislature created a cap-and-trade program to limit carbon emissions that has been extended and strengthened over time.  Most U.S. states have mandated utilities to integrate clean renewable power into their resource mix, and many have taken on increasingly ambitious targets, through robust and enduring policies that have been widely supported.

Meanwhile the federal government has utterly failed to do its part. Three decades ago when I first learned about global warming through that NGA task force, I never would have predicted that the lack of a strong national and international response would allow carbon dioxide levels to soar to 410 ppm from the preindustrial level of 280 ppm, bringing rapid and devastating consequences in a generation. Even harder to imagine would be an Administration like the current one taking a wrecking ball to crucial progress at the federal level—in particular, the Clean Power Plan and the national clean car standards.   

But now it gets even worse. The Trump Administration, not content to undermine U.S. leadership and the Paris Agreement, is hell bent on attacking any state that does not share its climate-denying, pro-fossil fuel agenda. The federal attacks on the California-led greenhouse-gas emissions standards for autos (embraced by 15 states representing nearly half the U.S. economy), and now on California’s cap- and-trade program are assaults on all of us, and make a mockery of the GOP’s espoused fealties to states’ rights and cooperative federalism.

The Administration claims that California is unlawfully acting like a national government by working with Quebec on a linked trading system that crosses state and national boundaries. But the program is designed so that each jurisdiction operates independently yet recognizes the others’ allowances through the “Western Climate Initiative” as broader trading systems yield greater opportunities for cost savings.  Subnational governments across the U.S. and beyond routinely collaborate and cooperate across areas of policy, trade, and commerce without harassment by our federal government:  think of the ubiquitous trade missions by governors and their counterparts from around the world.  Consider as well cross-border collaboration on important sectors like transportation – e.g., through joint efforts on electric vehicle charging networks and other infrastructure, including bridges and related tolling arrangements.

I can only explain the Administration’s motivation to attack this arrangement that has been around since 2013 as a spiteful desire to quash any successful effort to address climate change in the “marble cake” of government.  This Administration’s actions bring to mind the lyrics to the song, MacArthur Park: “I don’t think that I can take it, ‘cause it took so long to bake it, and I’ll never have that recipe again, oh no!”  Oh no, indeed.



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