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Cooperative Federalism Under the Clean Air Act: New Horizons in State Regulatory and Enforcement Primacy Under a Trump EPA

Colin G. Harris, Air Quality Issues Affecting Oil, Gas, and Mining Development and Operations (2018)

U.S. Environmental Protection Agency (EPA) Administrator, Scott Pruitt, published a memorandum on October 16, 2017 addressing ‘sue and settle’ tactics stating the Agency’s commitment to embracing the principles of cooperative federalism. Citing the Clean Air Act as an example environmental statute that empowers states to serve as stewards of their environments, Pruitt emphasizes the importance of EPA “working cooperatively with states to encourage regulations instead of compelling them and to respect the separation of powers.” The Agency’s new commitment to empowering states through cooperative federalism came as no surprise to EPA watchers. The presidential election of 2016 produced a new administration in Washington and expectations that states would play a stronger role in enforcing environmental standards. In June 2017, state environmental regulators announced their vision for recasting state roles in environmental protection by releasing their plan for Cooperative Federalism 2.0. EPA followed suit by identifying cooperative federalism as a primary goal in its Draft Fiscal Year 2018-2022 EPA Strategic Plan. Pruitt’s early actions as Administrator and EPA’s strategic planning make clear the Agency is pursuing a path of shifting the responsibility of environmental enforcement to state and tribal regulators. Although Administrator Pruitt stated this shift will not result in giving violators a free pass, some have noticed a significant reduction in enforcement actions during the early days of the Trump Administration compared to those filed in the same period during the previous two administrations. EPA’s most recent shift also comes when scholars and legal commentators continue to debate the extent to which the cooperative federalism pendulum has swung and what it means for environmental enforcement going forward. While some rely on the Rehnquist Court’s “new federalism” decisions that narrowed federal regulatory power to explain how cooperative federalism is alive and well, others argue that federal environmental laws unquestionably makes the federal government, acting through the powers delegated to the EPA, the primary authority for setting pollution controls. Because federalism issues derive from the Constitution’s recognition that states are distinct sovereign entities from the federal government, institutional tension almost guarantees there will be no end to the cooperative federalism debate.