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

The Law and Policy of Environmental Federalism: A Comparative Analysis (Kalyani Robbins ed., Edward Elgar Pub. Ltd. 2015); ISBN # 978 1 78347 361 8

GWU Legal Studies Research Paper

GWU Law School Public Law Research Paper

32 Pages Posted: 12 Oct 2017

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: 2015

Abstract

From its inception in 1970, modern environmental law has been a joint venture between the federal government and the states. When Congress enacted the Clean Air Act (CAA) of 1970 it crafted the cooperative federalism model reflected in much of the pollution control legislation enacted in the ensuing decade. Despite decades of experience with the CAA’s version of cooperative federalism, fundamental disagreements persist not only about the merits of that model, but also about what Congress intended when it delineated EPA and state roles in the 1970 Act and subsequent amendments. Some courts and commentators characterize the CAA as a statute that makes EPA the dominant partner, with states being afforded the opportunity states to participate in fashioning air pollution control policy. Others claim that Congress intended to make EPA and the states equal partners.

This chapter demonstrates that the vision of CAA cooperative federalism as an equal partnership bears no resemblance to the allocation of power Congress established in adopting the CAA. It emphasizes the predominant role of EPA vis-à-vis the states in various CAA programs, refuting recent characterizations of its cooperative federalism design as intended to create an “equal partnership” between EPA and the states. The legislative history reveals that Congress crafted key statutory programs to address collective action problems that it regarded the states as incapable of solving. The chapter also briefly examines the desirability of this cooperative federalism model both in controlling conventional air pollution and in seeking to address greenhouse gases (GHGs) that contribute to climate disruption. The chapter concludes that the CAA’s delegation to EPA of the dominant role in controlling conventional air pollution, subject to state power to exceed federal minimums, has largely succeeded in addressing conventional air pollution problems. Moreover, this version of cooperative federalism promises to be an effective approach for regulating GHG emissions.

Keywords: air pollution, Clean Air Act, cooperative federalism, collective action, climate change mitigation

JEL Classification: K23, K32, I18

Suggested Citation

Glicksman, Robert L. and Wentz, Jessica, Debunking Revisionist Understandings of Environmental Cooperative Federalism: Collective Action Responses to Air Pollution (2015). The Law and Policy of Environmental Federalism: A Comparative Analysis (Kalyani Robbins ed., Edward Elgar Pub. Ltd. 2015); ISBN # 978 1 78347 361 8, GWU Legal Studies Research Paper, GWU Law School Public Law Research Paper, Available at SSRN: https://ssrn.com/abstract=3050649

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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