Hazardous Materials Transportation in an Age of Devolution

• Author: J. Michael Martinez,Alex W. Thrower
• DOI: 10.1177/02750749922064337
• Published date: 01 June 1999
• Date: 01 June 1999
• Subject Matter: Articles

ARPA/June1999Thrower,Martinez/HAZARDOUSMATERIALSTRANSPORTATION

HAZARDOUS MATERIALS

TRANSPORTATION IN AN AGE

OF DEVOLUTION

ALEX W. THROWER

Urban Energy & Transportation Corporation

J. MICHAEL MARTINEZ

Kennesaw State University

The United States has entered an age of devolution. As political responsibility has begunto shift

fromthe federalgovernment backtothe states,many questionsconcerning an appropriateintergov-

ernmental relationshipremain unclear. In the areaof environmental law, for example,the D.C. Cir-

cuit Court of Appeals decided a case, Massachusetts v. U.S. Department of Transportation(DOT)

(1996), that restrictedDOT’s authority to preempt state bonding requirements for hazardousmate-

rialstransporters.The court’sruling ignoredmany precedentsindicating thatCongress intendedto

provide broad preemptionauthority to DOT under the Hazardous Materials Transportation Uni-

formSafetyAct andarguably underminedstandards articulatedby theU.S.SupremeCourt in Chev-

ron U.S.A. v.Natural Resources Defense Council (1984). This article explores the court’s opinion

and asks whether the Massachusettscase represents a deliberate change in federalism principles or

whether the holding is an example of a de facto devolution of power.

Few areas of American law and public policy raise as manyfederalism ques-

tions as environmental law, owing to the character of natural resource degrada-

tionandthe existence ofnegativeexternalitiesthat must beregulated (if theyare

regulated at all) by the public sector (Hamilton, 1990; Tobin, 1992; Wise &

O’Leary,1997).1Because land, air,and water contaminationandtoxic chemical

releases respect no political boundaries and because many environmental

disputes are governed by federal administrative regulations that share

authoritywithstates and, byextension,municipalities, itishardly surprising

that recent arguments in the never ending debate on the appropriate balance

of power in the American regime shouldfocus, to some extent, on the environ-

mental realm (Moya & Fono, 1997). The National Environmental Policy

Act (NEPA), one ofthe earliest statutes enacted during the post-1969 “modern

AUTHORS’NOTE: The authors wish to thank the anonymous peer reviewers for their insightful

comments and helpful suggestions, all of which improved the quality of the finalmanuscript.

AMERICAN REVIEW OF PUBLIC ADMINISTRATION,Vol. 29 No. 2, June 1999 167-189

© 1999 Sage Publications, Inc.

167

era” of environmentalism, clearly envisioned an integral role (although not an

absolute one) for the federal government in ensuring “for all Americans safe,

healthful, productive, and aesthetically and culturally pleasing surroundings”

(1970, § 101; see also Buck, 1996, p. 18).2

Environmental issues are especially important because they highlight two

contrary impulses in federalism—in this case, the push to decentralize federal

authority while simultaneously promulgating national standards for clean air,

water,and land. These impulses form the central paradox of the American expe-

rience, namely the presence of a strong strain of individualism coupled with a

contradictory desire for government control over individual decisions that

adversely affect the collectivity. Such tension between individual and collective

interestsisendemic to federalism.Thelate Martin Diamond,a leading commen-

tator on the Founding Fathers and the origins of the American republic, suc-

cinctly summarized the challenges inherent in a federal system:

The natural tendency of any political community, whether large or small, is to

completeness, to the perfection of its autonomy. Federalism is the effort deliber-

atelytomodify thattendency.Hence any givenfederal structureis always theinsti-

tutional expression of the contradiction or tension between the particular reasons

the member units have for remaining small and autonomous but not wholly, and

large and consolidated but not quite. (1973, p. 130)

In the face of this tension, federal authority to regulate environmental issues

has been based primarily on the interpretation of two constitutional provisions

that generally herald the supremacy of federal law. Under most interpretations

of Article I, § 8, Clause 3, of the U.S. Constitution, Congress possesses the

authority to govern activities that affect interstate commerce. Although the

Tenth Amendment to the Constitution reserves powerto the states and the peo-

ple,generallycourts have heldthat congressional authority toregulate interstate

commerce supersedes states’ exercise of police powers when the two conflict

over matters involving more than intrastate activities.Over time, the definition

of interstate commerce has expanded significantly, allowing the national gov-

ernment to regulate almost everyactivity through the Commerce clause as inter-

preted by the federal courts.3Recognizing the propensity of courts to decide vir-

tually every major issue in American life, Alexisde Tocqueville wryly observed

in the 1830s that “scarcely any political question arises in the United States

that is not resolved, sooner or later, into a judicial question” (Tocqueville,

1945, p. 288). Perhaps nowhere is the prescience of Tocqueville’s remark more

evident than in the context of Commerce clause disputes.

Congressional authority extends beyond the power to regulate interstate

commerce, however. Under the Supremacy clause, Article VI, Clause 2, of the

U.S. Constitution, Congress can preempt state and local laws in the interest of

ensuring national uniformity in areas where the federal government is vestedwith

constitutional authority. Despite the ascendancyof bureaucratic government and

168 ARPA / June 1999