One State, Two States, Red States, Blue States: Federalism Hypocrisy in Trump’s EPA

Regulatory approaches for vehicles versus power plants show the Trump White House’s true motivation – and it’s not states’ rights.

As my colleague Cara Horowitz has already blogged, the Trump EPA is preparing to announce a Clean Power Plan replacement today, rolling back Obama-era efforts to regulate greenhouse gas emissions from existing power plants. The plan is expected to largely shift the regulatory burden to states, essentially leaving it up to them to decide whether and how stringently to regulate. Draft talking points leaked to E&E News argue for broad deference to states, since they “have a better understanding of the sources within their borders.”

K Street, a major thoroughfare in Washington, D.C. known as a center for numerous think tanks, lobbyists, and advocacy groups. (Photo YourSpace, Flickr)

…which is funny, considering it was only a few weeks ago that acting EPA Administrator Andrew Wheeler proposed an unprecedented revocation of California’s historic authority to set its own vehicle standards, instead arguing for one national standard as part of a drastic rollback of national vehicle emission standards.

David Roberts at Vox and others have pointed out how revoking California’s Clean Air Act waiver flies in the face of traditional conservative principles. But the naked hypocrisy that allows the EPA to cite federalism concerns in rolling back the Clean Power Plan mere weeks after eviscerating states’ rights to set more protective vehicle standards is truly staggering.

It’s worth taking a step back to think about the structure of the Clean Air Act and how cooperative federalism is intended to work. The Clean Air Act’s history is full of examples of California innovating and the federal government mimicking California’s example a few years later — a process my colleague Ann Carlson has termed “iterative federalism.” This is especially true in the vehicle context thanks to California’s waiver provision to set its own, more stringent tailpipe standards to address its unique air quality problem. But cooperative federalism goes beyond the mobile source context. The entire structure of the Clean Air Act is designed to be a collaborative effort between states and the federal government to protect public health. In the original Findings and Declarations of Purpose, Congress explicitly found that federal leadership was “essential for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution.” The bedrock of stationary source permitting under the Clean Air Act revolves around the federal government setting health-based ambient air quality standards at the national level and states having the flexibility to develop their own plans to meet these standards. This relationship works because EPA always has the hammer of federal enforcement behind it to ensure states actually work towards protecting public health.

Just last month, in calling for a focus on federal-state partnerships, acting EPA Administrator Wheeler stated that “[w]hen Congress established the EPA’s authority, it intended states to be partners in our effort to protect the environment and public health.” But Wheeler’s actions do not actually reflect his words. Congress did intend to create partnerships to protect the environment and public health. But that’s not the kind of partnership the Trump EPA is creating.

The common denominator between the vehicle standard rollback and the Clean Power Plan replacement is not state/federal partnerships —  it’s the agency’s determination to enact an anti-regulatory, anti-environmental regime pushed by the very industries EPA is supposed to regulate. When former EPA Administrator Scott Pruitt was Attorney General of Oklahoma, his policy positions were literally cut and pasted from letters drafted by oil and gas interests. Bill Wehrum fought the EPA for decades on behalf of the fossil fuel and chemicals industries — he now runs the Office of Air and Radiation, where he has been in charge of rolling back the Clean Power Plan his clients fought. And acting Administrator Andrew Wheeler has a long history lobbying for energy and coal interests who will be thrilled by the Clean Power Plan rollback. The career staff at EPA deserve better than the hypocrisy of the political appointees currently directing the agency’s policies.

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About Meredith

Meredith Hankins is the Shapiro Fellow in Environmental Law and Policy at UCLA School of Law for 2017-2019.…

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