Debunking Revisionist Understandings of Environmental Cooperative Federalism: Collective Action Responses to Air Pollution

Book Chapter in The Law and Policy of Environmental Federalism: A Comparative Analysis (Kalyani Robbins & Erin Ryan, eds.) (Edward Elgar), Forthcoming

GWU Law School Public Law Research Paper No. 2015-42

GWU Legal Studies Research Paper No. 2015-42

Posted: 9 Sep 2015 Last revised: 28 Sep 2016

See all articles by Robert L. Glicksman

Robert L. Glicksman

George Washington University - Law School

Jessica Wentz

Columbia University - Sabin Center for Climate Change Law

Multiple version iconThere are 2 versions of this paper

Date Written: September 4, 2015

Abstract

The federal Clean Air Act initiated Congress's venture into cooperative environmental federalism in 1970. Forty-five years later, misconceptions about the nature of that venture (and similar examples of cooperative federalism under other federal environmental statutes) persist. In particular, some recent judicial decisions characterize environmental cooperative federalism as an equal partnership between the federal Environmental Protection Agency and the states. They also take umbrage at efforts by EPA to override state policies and initiatives that fail to conform to the minimum responsibilities that the statutes impose on the states, characterizing them as unlawful affronts to state sovereignty.

This chapter argues that the CAA was never designed to be an equal partnership. The Act's text, structure, and legislative history demonstrate clearly that Congress chose to put EPA at the helm, and that it did so out of concern that collective action problems such as transboundary externalities, diseconomies of scale, and the race to the bottom could only be overcome if the federal government held the upper hand in the regulatory partnership created to promote air quality improvement. It argues that an accurate application of the cooperative federalism model actually established under the CAA is imperative for the successful implementation and enforcement of the statute’s programs and goals for both criteria air pollutants and greenhouse gases.

Keywords: environmental law, environmental federalism, cooperative federalism, air pollution, Clean Air Act, climate change

Suggested Citation

Glicksman, Robert L. and Wentz, Jessica, Debunking Revisionist Understandings of Environmental Cooperative Federalism: Collective Action Responses to Air Pollution (September 4, 2015). Book Chapter in The Law and Policy of Environmental Federalism: A Comparative Analysis (Kalyani Robbins & Erin Ryan, eds.) (Edward Elgar), Forthcoming ; GWU Law School Public Law Research Paper No. 2015-42; GWU Legal Studies Research Paper No. 2015-42. Available at SSRN: https://ssrn.com/abstract=2656422

Robert L. Glicksman (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

Jessica Wentz

Columbia University - Sabin Center for Climate Change Law ( email )

Jerome Greene Hall
435 West 116th Street
New York, NY 10027
United States

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