Posted on December 13, 2019 by Gregory Bibler
I commend Vicki Arroyo’s recent elegy on the Dissolution of Cooperative Federalism in the Trump Era. both for its eloquence and its restraint. To paraphrase, the Trump Administration’s lawsuit against California’s climate change policies “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.’”
The Trump Administration’s EPA, at least as envisioned by the President and EPA’s Administrator, is not like any this country has seen before. Administrator Wheeler represented in the written statement he submitted at his confirmation hearing that EPA is “advancing the President’s regulatory reform agenda.” The Administrator’s favorite measure of EPA’s success, in fact, is the number of “major deregulatory actions” it has implemented. As of January 2019, he reported, EPA had finalized 33 such actions. The Administrator has updated that metric regularly in his public remarks. In his recent address to Detroit’s Economic Club, he announced EPA has taken 46 major deregulatory actions, and that another 45 are in the pipeline. The Administrator also lauded EPA’s preeminence in complying with the President’s executive order requiring agencies to eliminate two regulations for every new one finalized. As of October 2019, EPA has cut 26 regulations while creating four new ones, he stated.
The Trump Administration’s attitude toward “states’ rights” and “cooperative federalism” only make sense when viewed through this policy lens. EPA’s current focus and mission is deregulation, not environmental protection. If allowing states to create their own standards for emissions from coal-fired power plants will ease regulations inimical to coal-producing states, then EPA favors states’ rights. When states employ authority given to them under Section 401 of the Clean Water Act to impose conditions or limitations on fossil fuel infrastructure projects, or California reaches agreement with automobile manufacturers on more ambitious auto emission standards, however, then EPA insists on exercising preemptive federal authority.
This sometimes-federalism frequently is derided as “Fickle Federalism.” One commenter has coined a term that is more apt: “Jenga Federalism.” Jenga is a game in which the goal is to destabilize a stack of blocks piece-by-piece rather than knocking it down in one blow. As the EPA Administrator’s deregulatory metrics show, that is precisely the game EPA now is playing.
It was not enough, however, for the Trump Administration’s EPA to take direct legal action against California standards that conflicted with EPA’s deregulatory agenda. EPA retaliated by threatening to withhold federal highway funds, demanding that the state submit a plan to control water pollution tied to its “homelessness crisis,” and referring auto manufacturers who agreed to meet California efficiency and emission standards to the Department of Justice for potential anti-trust prosecutions.
Using enforcement authority against a state as a political weapon – particularly a “Blue State” viewed by the White House as a political enemy – is an unprecedented EPA tactic. Sadly, it is not without precedent in this Administration. It is a form of quid pro quo.
To be clear, I have lodged my full share of challenges to EPA’s and states’ decisions, interpretations, guidance and regulations. I expect and intend to continue to do that, as and when appropriate, based on the science, the law, and common sense. There is an institutional process for that. It is called the rule of law. It is the process, in fact, currently underway across the country in dozens of administrative and judicial proceedings challenging deregulatory actions taken or proposed by EPA and other federal agencies.
What troubles me most is that, by engaging in political score settling against California, EPA has diverged from our institutional norms. It is one thing for the President, personally, to engage in such tactics. It is quite another when the Administration, as a whole, does so at the President’s bidding. It reflects a Hobbesian philosophy of government, in which the Executive wields centralized and undivided power, and the private interest of the Executive is perceived to be the same as that of the public. That is not a vision that the Constitution will support. And, surely, it is not a vision that our judicial system or our democratic institutions will endorse.