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The new progressive federalism: States’ rights to clean air and climate protection

Melissa A Hoffer


  • EPA has slashed environmental and climate rules—but states are fighting back to protect public health and build a clean energy economy.
  • Federal regulatory actions jeopardize states’ rights to build on the success of their climate protection and clean energy policies.
  • States now find themselves on the frontlines of climate disruption.
The new progressive federalism: States’ rights to clean air and climate protection
Penpak Ngamsathain via Getty Images

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Today, as we face a climate emergency, our thinking about energy and environment is, of necessity, more integrated than ever. State programs—market-based and otherwise—to promote clean energy and reduce power sector greenhouse gas emissions have been very successful. Yet federal regulatory actions aimed at weakening greenhouse gas regulation and recent efforts to advance wholesale energy market changes that would favor carbon intensive fuel sources jeopardize states’ rights to build on the success of their climate protection and clean energy policies.

The March 2017 Presidential Executive Order on Promoting Energy Independence and Economic Growth constituted a significant reset of U.S. energy and environmental policy. Section 2 ordered the immediate review of all “existing regulations, orders, guidance documents, policies, and any other similar agency actions  . . . that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources.” The Order was the first step in an aggressive deregulatory agenda that the current administration has often framed as an effort to reduce federal overreach and promote states’ control over environmental policy.

But we have been down this road before. Many Americans recall the days before the federal Clean Air and Clean Water Acts were passed, before there was a Superfund law that required polluters to pay for the cost of cleaning up their pollution. Federal law was necessary to curb the pollution that threatened public health, ecosystems, and local economies. Pollution recognizes no state border; no matter how diligent a downstream or downwind state may be in controlling pollution from in-state sources, without a federal standard, there is not too much that can be done about out-of-state pollution. In our system of cooperative federalism, state and federal governments share power—often with the federal government setting minimum standards and the states taking a lead role in enforcement and implementation.

States, of course, are central to energy and environmental policy innovation, and truly are functioning as “laboratories of democracy,” in the words of former U.S. Supreme Court Justice Brandeis. For example, in the absence of federal action on greenhouse gas emissions, Northeast and Mid-Atlantic states put in place the first regulated power sector cap and trade program, the Regional Greenhouse Gas Initiative, or RGGI. Now, those states are planning to tackle transportation sector emissions through the regional Transportation and Climate Initiative. As well, under statutory and regulatory mandates, Massachusetts has added or is in the process of adding approximately 26,000,000 megawatt-hours per year of renewable and clean energy projects for its electricity customers, which is equivalent to more than 50 percent of the Commonwealth’s annual electric load.

Curbing mercury pollution

But while individual states, and even groups of states, can make substantial contributions, strong federal leadership is crucial to securing uniform policy implementation. The role of the federal government is to set minimum national standards to protect the interests of all Americans—clean drinking water, healthy air, a safe climate. Indeed, states find themselves not infrequently in the position of arguing that a federal standard is necessary. Prior to the federal Mercury and Air Toxics Standards (MATS), several states had their own mercury air pollution reduction mandates and Clean Water Act Total Maximum Daily Loads (TMDLs) to reduce mercury pollution in waterbodies. But state requirements alone could not, and did not, address the problem of hazardous air pollution crossing state borders, and mercury pollution remained a problem nationwide. Indeed, as of 2011, all 50 states had fishing advisories in place, particularly to protect young children and pregnant or nursing mothers, due to persistent mercury contamination.

The Northeast Regional Mercury TMDL (2007) concluded that a significant portion of the mercury in the region’s rivers, lakes, and streams was due to atmospheric deposition from out-of-region sources that would not be controlled absent a federal standard. And Michigan—the lead plaintiff in Michigan v. EPA, challenging MATS on the ground that the U.S. Environmental Protection Agency (EPA) had failed to consider costs for purposes of its appropriate and necessary determination—had a strict state power plant mercury pollution standard set to sunset upon passage of a federal rule. These state rules demonstrated to the White Stallion and Michigan courts that, as a practical matter, mercury emissions could be controlled cost effectively by existing technology, since states were already doing it.

It was nearly 20 years ago, at the end of 2000, that EPA first determined that it was “appropriate and necessary” to regulate coal- and oil-fired power plants under section 112(n)(1)(A) of the Clean Air Act—a provision established as part of the 1990 Clean Air Act Amendments. EPA affirmed that determination in 2012, and again in 2016 when it issued its Supplemental Finding that, taking costs into account as instructed by the Supreme Court in Michigan v. EPA, it remained appropriate and necessary for EPA to regulate power-plant hazardous air pollution. MATS has been in effect since 2015, delivering public health benefits by reducing power plant mercury and other hazardous air pollutant emissions, and, as an unavoidable collateral benefit of the technologies used to remove hazardous air pollution, reducing particulate matter pollution, which poses a substantial health hazard. MATS has imposed no undue costs to ratepayers and no adverse impacts on electric system reliability. Yet, despite many states’ long call for action on mercury pollution to protect the health of children, in particular, EPA has now proposed to reverse the appropriate and necessary finding, while leaving the standards in place—a move that would render MATS vulnerable to legal challenge or administrative rescission, and one that has been opposed nearly unanimously by members of the regulated industry and trade groups.

Critically, and at the very least, federal policy should not undermine states’ efforts or usurp state authority to protect their residents and natural resources from pollution and grow their clean energy economies.

Encouraging clean energy development and restoring climate stability

For example, the administration repealed the Clean Power Plan, informed by the principle, subscribed to by then-Oklahoma Attorney General Pruitt, that states should take the lead in addressing power plant carbon dioxide emissions, and not be commandeered by the federal government to comply with a coercive national program that might be inconsistent with their own energy goals. An August 2018 National Public Radio headline captures well this theme in the federal government’s messaging when the proposed Affordable Clean Energy rule came out: Trump Moves to Let States Regulate Coal Plant Emissions.

Set aside for a moment the fact that, under Clean Air Act section 111(d), states are already in the driver’s seat and must develop their own plans establishing a standard of performance for existing sources in accordance with the federal emissions guideline. But the administration’s stated goal of respecting states’ rights to pursue their own energy policies would seem to have been contradicted by the administration’s positions with respect to other key policy proposals.

The U.S. Department of Energy’s Grid Reliability and Resilience Notice of Proposed Rulemaking (NOPR) provides a case in point. The NOPR, had it not been summarily rejected by the Federal Energy Regulatory Commission, would have provided cost-recovery (effectively a subsidy) to so-called “fuel secure” plants, like coal plants, providing a market advantage to the most polluting, uneconomic resources and creating an unlevel playing field for cleaner resources—the very resources many states have actively encouraged as a means to combat climate change. In contrast to the administration’s stated goal of limiting federal interference in state environmental and energy policymaking, the NOPR would have thwarted state clean energy policy.

A similar dynamic can be seen in the fight over the clean car standards currently underway. Since 1970, California has had authority to set its own more stringent vehicle emissions standards under section 209 of the Clean Air Act, and other states may adopt those identical standards under section 177 or apply the national standard.

The administration’s proposal would freeze the Obama-era standards at 2021 levels, and revoke California’s authority—again, imposing a lower federal standard on California and more than a dozen section 177 states, and undermining their public health and clean transportation goals, despite rhetoric about the primacy of state leadership.

This significant tension in the administration’s position on state authority in the realm of energy and environment is revealing: the administration’s allegiance to federalism does not appear to be a bedrock principle, but rather is hostile to many states’ energy and environmental policies, under the guise of championing states’ rights. States now find themselves on the frontlines of climate disruption, and many are building for resilience while mitigating emissions and doing their part to advance the clean energy transition. States’ rights and authority under our federal system ensure that states can continue to lead.