Posted on February 13, 2013 by Robert Brubaker
The current Clean Air Act retains the premise in the Clean Air Act of 1963 that “the prevention and control of air pollution at its source is the primary responsibility of States and local governments.” Among the many balancing acts embedded in the text of the Clean Air Act, the balance between federal and State prerogatives is one of the more challenging.
Over time, the accumulation of requirements, and the multiplication of more requirements at a faster and faster pace, puts strains on the Clean Air Act’s ideal of “cooperative federalism.” In the present era of divided government and increasing political polarization, tensions between EPA and the States, and between certain States, are on the rise. For example, EPA has been sued by some States to force more aggressive regulation of greenhouse gas emissions, and by other States to force less aggressive regulation of criteria pollutants that cross State boundaries. The “turbulence inherent in [the Clean Air Act’s] divided relationship” was noted in William Session’s December 14, 2012 post.
While sharp contrasts on energy policy get most of the publicity, it is the small things – the finer details of regulation of sources classified as “minor” or “insignificant” under the statute and regulations – that account for a disproportionate share of the friction with regard to federal versus State prerogatives. Tensions over State discretion – particularly with regard to environmentally inconsequential mandates, land use, and small businesses – are not new to the Clean Air Act. Soon after her transition from head of the Florida Department of Environmental Regulation to Administrator of EPA twenty years ago, Carol Browner said:
When I worked at the state level, I was constantly faced with rigid rules that made doing something 100 times more difficult and expensive than it needed to be. It makes no sense to have a program that raises costs while doing nothing to reduce environmental threats.
A new Association of Air Pollution Control Agencies, launched in January 2013, holds promise for enhancing the State-federal partnership basic to the design of the Clean Air Act. The primary goals of the new association are to help the States assist each other in carrying out their responsibilities under the Clean Air Act, and to better understand EPA requirements as they evolve.
The AAPCA selected Battelle Memorial Institute, the world’s largest non-profit research and development organization, to provide technical assistance and organization and staffing support. The initial seventeen participants in the AAPCA are: Alabama, Florida, Indiana, Kentucky, Louisiana, Mississippi, Nebraska, New Mexico, Nevada, North Dakota, Ohio, Pennsylvania, Tennessee, Texas, Virginia, West Virginia, and Wyoming. If the new AAPCA improves the technical proficiency of State air pollution control agencies, and increases the level of cooperation and collaboration between EPA and State air agencies, it will well serve the design of Congress and the interests of the nation.