Environmental Federalism When Numbers Matter More than Size

92 Pages Posted: 27 Aug 2013 Last revised: 26 Jun 2014

David E. Adelman

University of Texas School of Law; University of Texas at Austin - Kay Bailey Hutchison Center for Energy, Law & Business

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Abstract

Two elements of the Clean Air Act are viewed as essential to its many successes: the health-based national ambient air quality standards (NAAQS), which restrict emissions of six widely released air pollutants, and the statute’s hybrid form of cooperative federal-state regulation. This Article will show that these programs are far less important to the operation of the statute than conventional wisdom would have you believe. An amalgam of parallel programs and external constraints, both political and practical, have marginalized the NAAQS framework and limited state action, such that in practice the law is more federal than it is cooperative.

Theories of environmental federalism have reinforced misperceptions about the statute by focusing unduly on regulatory pathologies associated with large corporations (e.g., interstate regulatory races to the bottom, agency capture). While industrial sources are undoubtedly important, air pollution in the United States is largely a collective problem for which the number of sources matters more than their size. Environmental Protection Agency data show that urban density is the principal reason that almost 50 percent of Americans live in areas that fail to meet one or more NAAQS. The prevailing focus on emissions from large industrial facilities is misleading because it obscures many of the most important sources of air pollution and, perhaps more importantly, because it causes academics and policymakers to make assumptions about the political economy of clean air regulation that do not apply to the small, diffuse sources that account for most air pollution nationally.

Recognizing the structural limits and inconsistencies of clean air policy opens up significant opportunities for reform, two of which will be discussed as illustrative examples. First, the CAA’s system of cooperative federalism will continue to underperform unless it stimulates development of effective state and local policies for regulating smaller sources. EPA could be given the authority to set NAAQS compliance deadlines and to condition approval of state plans on adoption of specific programs. These reforms would refocus the planning process from meeting narrow bureaucratic ends to developing innovative programs and setting transparent compliance schedules. Second, federal regulation of major industrial sources skews regulatory priorities and unnecessarily limits state authority to select policies and allocate emissions across sources. I will argue that the two programs could be eliminated as part of compromise legislation to achieve broader reforms on issues such as climate change. This would represent a dramatic concession by environmentalists, but could be implemented without negatively affecting human health. While this proposal cuts against deeply held views, significant legislative action will be far less likely to occur if we fail to reconsider established beliefs or to exploit opportunities for compromise.

Keywords: Federalism, Clean Air Policy, Clean Air Act, Market-Based Regulations, Climate Change

JEL Classification: K23, K32

Suggested Citation

Adelman, David E., Environmental Federalism When Numbers Matter More than Size. 32 UCLA Journal of Environmental Law & Policy 238 (2014) ; Energy Center Research Paper No. 2014-04. Available at SSRN: https://ssrn.com/abstract=2316294 or http://dx.doi.org/10.2139/ssrn.2316294

David E. Adelman (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-0877 (Phone)

University of Texas at Austin - Kay Bailey Hutchison Center for Energy, Law & Business ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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