Environment Regulation

The state role in environmental regulation and enforcement varies significantly across the spectrum of environmental issues and programs. In some environmental programs, particularly those involving regulation of nationally marketed commodities, Congress has left the states no regulatory role: Federal statutes wholly preempt state regulation and enforcement, leaving policymaking, standard setting, and enforcement entirely in federal hands. More commonly, the states are junior partners in joint federal-state regulatory enterprises, where the federal government defines national environmental policy and sets standards (although it may allow the states to adopt stricter standards), and federally approved state agencies issue and enforce permits subject to federal oversight. Finally, in a few environmental programs, the federal government has permitted and even encouraged the states to adopt parallel regulatory programs. A few federal environmental programs, particularly those directly regulating nuclear waste and nationally marketed products often leave little or no room for state environmental policies and preferences. For example, under the Clean Air Act, the national government defines, monitors, and enforces the air pollution standards for new car; states have no regulatory role until the car is sold to a consumer. The reason is plain: It would be hugely inefficient to allow fifty states to set their own emission standards. Even here, however, Congress offers states a modest policy making role; states may adopt the "California standards," which are stricter than the national standards. A few Northeastern states (as well as California) have done so. Similarly, the federal statute governing the labeling of pesticides preempts most state tort claims based on a breach of the duty to warn. Congress deemed label uniformity an overriding concern (it would have been inefficient for each state to set its own labeling requirements for these nationally marketed commodities), and courts have diligently barred state tort claims that would effectively impose more stringent requirements. The statute, however, does not limit state or local regulation of pesticide use, and the Supreme Court declined an invitation to read such a limitation into the statute. Thus, although Congress certainly had the authority to preempt all state pesticide regulation, it tailored its preemption powers to address its felt need for uniformity in product labeling. These examples have a common theme in the environmental area: Congress sparingly uses its power to preempt all state authority. When it does preempt state regulation, Congress tends to tailor federal preemption to meet an important need, such as the need for national uniformity. In many environmental programs (particularly pollution control programs), the federal and state governments share regulatory power, although the states' preferences are generally subsidiary to the federal government's policy choices and standards. In these programs, the federal agency's role is threefold: to set substantive standards for environmental quality or pollution emissions; to review and approve state regulatory programs designed to implement and enforce those standards; and to oversee state implementation and enforcement (and to re-assume implementation and enforcement if state efforts fall below a minimum threshold). For example, under the Clean Air Act, EPA defines nationally uniform "air quality" standards for common pollutants (for example, ozone, particulates) that each state is expected to attain within statutory deadlines. In addition, EPA must review state air pollution programs to determine whether the states are qualified to implement and enforce the federal standards, that is, whether the state agency has sufficient personnel with adequate training, resources, and enforcement authority. After EPA approves a state regulatory program, the state agency issues all air pollution permits, monitors compliance, and enforces permit and other regulatory violations. EPA normally recedes into the background; its primary role is to assure itself that the state permit requirements meet minimum federal standards and that the state enforcement agency takes appropriate enforcement action and seeks sufficiently strict sanctions. The key point, however,