Federalism and Environmental Law

• Author: Robert V. Percival
• Pages: 1009-1010

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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

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to enact and enforce a federal regulatory program. Few...