Federalism and Environmental Law

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Environmental protection was viewed as a state or local responsibility until the post–world war ii era when pollution problems assumed national scope. Congress responded initially by providing financial assistance to encourage state and local governments to control pollution. Federal grants for construction of municipal sewage treatment plants were the most prominent of these programs. The perceived failure of state and local regulation led Congress during the 1970s and 1980s to establish comprehensive national regulatory programs to protect the environment.

Most of the federal laws employ a "cooperative" federalism approach in which a federal agency establishes minimum national standards that states may opt to implement or to leave implementation to federal authorities. The Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and federal hazardous waste legislation require the Environmental Protection Agency (EPA) to set minimum national standards, while authorizing delegation of authority to administer these programs to states. In states that fail to receive program delegation, the laws are administered by federal authorities.

Most federal environmental laws allow states to adopt more stringent standards than the federally mandated minimum. However, in a few instances Congress has chosen to preempt inconsistent state standards, usually when regulating products that are distributed nationally, such as chemicals regulated under the Toxic Substances Control Act and pesticide labels mandated under the Federal Insecticide, Fungicide, and Rodenticide Act.

The rise of the federal regulatory infrastructure has generated environmental policy conflicts between federal and state authorities. Four types of constitutional issues have arisen in conflicts over environmental federalism. First, states have argued that some federal environmental regulations impermissibly infringe on state sovereignty in violation of the tenth amendment. In new york v. united states (1992), the Supreme Court struck down a federal requirement that states "take title" to any low-level radioactive waste generated within their borders if they had not made arrangements by a certain date for access to a disposal site for such waste. The Court found that the requirement violated the Tenth Amendment by "commandeering" the states' legislative processes to compel states to enact and enforce a federal regulatory program. Few federal environmental laws are vulnerable to Tenth Amendment challenges because most offer states a choice between regulating an activity according to federal standards or having state law preempted by federal regulation.

This "cooperative federalism" approach is less intrusive on state sovereignty than direct preemption. Congress also may condition the receipt of federal funds on state participation in federal environmental programs, which is a proper use of Congress's spending power and consistent with the Tenth Amendment so long as the conditions bear some relationship to the purpose of the federal spending. Thus, the Clean Air Act's denial of federal highway funds to states that fail to meet national air quality standards is constitutional.

The Court's decision in united states v. lÓpez (1995) that Congress's regulatory authority under the commerce clause of Article I, section 8, extends to intrastate activities only when they substantially affect interstate commerce has spawned a second set of challenges to federal environmental regulations. Arguments that some federal environmental laws exceed Congress's authority by regulating noncommercial activity that is wholly intrastate have been rejected by most courts because of the potential cumulative impact of even localized environmental damage.

A third source of constitutional limitations on federal authority is the eleventh amendment, which makes states immune from suits for damages in federal court. In Seminole Tribe of Florida v. Florida (1996), the Court held that Congress cannot abrograte state sovereign immunity by exercising its authority under the commerce clause. This overruled the Court's prior decision in Pennsylvania v. Union Gas Co. (1989), which had held that a state could be liable for the costs of environmental remediation under the federal "Superfund" law.

In a fourth set of cases, beginning with philadelphia v. new jersey (1978), the Court has used the dormant commerce clause to strike down state laws that restrict the disposal of waste originating out-of-state or that seek to channel solid waste flows to local facilities, as in C&A Carbone, Inc. v. Town of Clarkstown (1994).

While federal regulations now dominate the field, states continue to play an important role in implementing and enforcing national environmental policy under a system of cooperative federalism.

Robert V. Percival

(see also: Environmental Regulation; Waste, Pollution, and Federalism.)


Dwyer, John P. 1995 The Practice of Federalism Under the Clean Air Act. Maryland Law Review 54:1183–1225.

Esty, Daniel C. 1996 Revitalizing Environmental Federalism. Michigan Law Review 95:570–653.

Percival, Robert V. 1995 Environmental Federalism: Historical Roots and Contemporary Models. Maryland Law Review 54:1141–1182.

Percival, Robert V.; Miller, Alan S.; Schroeder, Christopher H.; and Leape, James P. 1996 Environmental Regulation: Law, Science, and Policy, 2nd ed. Boston, Mass.: Little, Brown.

Steinzor, Rena I. 1996 Unfunded Environmental Mandates and the "New (New) Federalism": Devolution, Revolution, or Reform? Minnesota Law Review 81:101–227.

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Federalism and Environmental Law