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The D.C. Circuit and ‘Cooperative Federalism’



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If you are wondering why President Obama wishes to stack the D.C. Circuit, check out Senator Jeff Sessions’s recent report on EPA overreach, “Neglecting a Cornerstone Principle of the Clean Air Act: President Obama’s EPA Leaves States Behind.” President Obama knows that the best way to protect this agenda from high-profile losses on the D.C. Circuit — which have happened in the recent past — is to fill the courts with more favorable judges, hence his court-packing plan.

The Left’s modus operandi for responding to a report like this — which highlights their “fatal conceit,” here that the EPA can centrally plan our country’s environmental policy — is to accuse conservatives of protecting business interests at the expense of the environment. This report pushes back on these accusations.

The report argues that the EPA’s approach to the Clean Air Act is increasingly departing from a “cooperative federalism” approach. As Senator Sessions explained, the EPA has refused to take this approach, “which recognizes that achieving environmental goals in our constitutional republic requires mutual collaboration between the States and Federal Government,” even though it is a “cornerstone” of the Clean Air Act.  Instead, the report explains, the EPA “routinely tries to ignore or circumvent the States or . . . control them by heavy-handed actions.”

The report argues in detail why “cooperative federalism” is so important to environmental protection, and how the EPA has ignored this:

Cooperative federalism also has a pragmatic basis. States and localities are best suited to design and implement compliance strategies to protect human health and the environment in a manner that appropriately accounts for local needs and conditions.6 Some activities have interstate effects, and Congress has provided enhanced federal roles for those specific contexts; yet, many, if not most, environmental and land use issues are essentially intrastate matters more effectively and efficiently addressed at the State and local level. As a former chairman of the Texas Commission on Environmental Quality has explained in a recent Heritage Foundation report, “The state and local governments’ direct accountability to real people has catalyzed creative and cost-effective solutions to air quality problems in stark contrast to the heavy-handed control, bureaucratic red tape, and scientifically unjustified regulatory mandates characteristic of the EPA’s approach.”

While cooperative federalism is a foundation of many federal environmental statutes,9 this report focuses on the Clean Air Act (CAA) and, more specifically, concerns that the current Administration’s EPA too frequently ignores cooperative federalism principles and breaks faith with the States in the implementation of the CAA. For example, the Attorneys General of 17 States (and the senior environmental regulator of an additional State) wrote EPA Administrator Gina McCarthy on September 11, 2013, in response to “EPA’s aggressive proposal for GHG performance standards for new [electrical generating units (EGUs)] and indications of a similarly aggressive stance on existing EGUs,” noting EPA’s unwillingness to appropriately defer to State authority under the Clean Air Act in recent years.” State officials from every corner of the country are publicly expressing serious concerns with EPA’s recent CAA actions, such as: [Florida, Alaska, Alabama, Kansas, Montana, North Carolina, Ohio, Pennsylvania, and Texas].

The report also highlights the staggeringly high number of states that have complained about the EPA’s failure to follow cooperative federalism with the Clean Air Act:

You can expect that the D.C. Circuit will hear a number of challenges to the EPA, which is why it’s so important to stop President Obama’s court-packing plan. These lawsuits should be decided by judges who will neutrally evaluate these challenges, instead of judges who will rubber-stamp President Obama’s environmental agenda.



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