Cooperative Federalism under the Surface Mining Control and Reclamation Act: Is This Any Way to Run a Government

One of the hallmarks of the environmental legislation passed by Congress in the 1970s was its increased reliance on a regulatory framework that has come to be known as cooperative federalism. Under the cooperative federalism model, the states are given the opportunity to assume all or part of the responsibility for a regulatory program if they submit to the appropriate federal agency a program that satisfies certain standards set down by Congress or agency implementing regulations. As an incentive to encourage states to accept such responsibility, these statutes typically provide for partial federal funding of the program. States may, of course, refuse to accept responsibility, in which case the federal government assumes regulatory control in that state. To varying degrees, virtually all of the major regulatory laws in the environmental field employ this scheme. Under the Clean Air Act, for example, ambient air quality standards may be achieved through state implementation plans. The Clean Water Act authorizes point source discharges of dredge and fill materials and other pollutants to be regulated through a state program. The Resource Conservation and Recovery Act provides for state development of hazardous waste management plans. The Safe Drinking Water Act affords the states the opportunity to assume primary enforcement responsibility. While state participation or control has become commonplace in environmental legislation, the broad delegation of control to the states, mandated by the Surface Mining Control and Reclamation Act of 1977, is unparalleled.5 The Surface Mining Act thus offers an excellent tool for the study of the performance of the cooperative federalism model. This Article offers some insights into the successes and failures of cooperative federalism under the federal Surface Mining Act and compares that record with the results that might be expected from the most obvious alternative to cooperative federalism-direct federal regulation. It is the opinion of the author that cooperative federalism fails in its most important objective of achieving state and federal cooperation. Furthermore, direct federal regulation offers the more efficient and effective method of achieving regulatory goals, while at the same time affording the states an opportunity to perform a substantial role in assuring the integrity of the regulatory process