The Firm Constitutional Foundation and Shaky Political Future of Environmental Cooperative Federalsim

Congress embarked on a new era of environmental protection in 1970, when it passed the federal Clean Air Act. Within a few years, it had adopted statutes protecting the nation’s other natural resources. Many of these laws were built on a foundation of cooperative federalism. They envisioned a partnership between the federal government and the states in the pursuit of federally declared environmental protection goals. The statutes delegated to each level of government authority to adopt, implement, and enforce different aspects of the environmental laws. Over the ensuing decades, litigants have attacked these cooperative federalism statutes, claiming that they are inconsistent with the Constitution’s federalism design. Most frequently, the challenges have focused on alleged abuses of the powers granted to Congress under the Commerce Clause, but litigants have also claimed that federal environmental legislation impermissibly intruded on state sovereignty in violation of the Tenth Amendment. With few exceptions, the courts have dismissed these challenges, finding the environmental statutes to fit comfortably within federalism structures and traditions. The Roberts Court may have opened the door to the next wave of challenges by recognizing limits on the federal Spending Clause, but even if these assaults succeed, which is by no means assured, they are unlikely to disrupt most aspects of the environmental protection laws. The most significant current challenge to the successful implementation of the environmental cooperative federalism statutes lurks not in the litigation arena, but in the implementation of those laws by the Executive Branch. The Trump Administration has made much of it commitment to federalism and to an enhanced state role in fashioning and pursuing environmental policies. The Administration’s actions, however, have not been consistent with promoting that agenda. It has begun an unprecedented retrenchment of federal regulatory authority. Instead of fostering state capacity to fill the resulting gaps, the Administration has sought to withdraw the federal financial support for state regulators that has long been forthcoming, and even raised the possibility of blocking implementation of state programs that are more protective than the federal government’s. The Administration’s devotion to devolution of environmental policymaking authority seems limited to policies that weaken environmental regulation