EPA’s primary enabling statutes, the Clean Air Act and the Clean Water Act, are founded on cooperative federalism. Simply put, Congress intended for EPA and States to serve as partners in the mitigation of environmental pollution attendant to economic development.
Of course, in the four decades since these foundational environmental laws were enacted, there have been disagreements between States and EPA as to how best to clean the air and water. Nonetheless, the system for the most part worked as intended: The two governmental entities cooperated.
This changed on or about January 20th, 2009.
Elsewhere, I’ve explained the means by which EPA has been usurping the States’ rightful authority. Follow the embedded link to learn the “how”; as for the “what,” see the chart below. It depicts the number of federal implementation plans imposed by EPA, broken down into presidential terms. A federal implementation plan, or FIP, is the most extreme action the EPA can take against a State under the cooperative federalism scheme created by Congress. A FIP entails a complete EPA takeover from the state of the regulatory regime in question. With this in mind, the chart below speaks volumes about cooperative federalism as practiced in the Obama era:
This chart is updated from an earlier post, in which I’d identified 19 FIPs imposed by EPA during President Obama’s first term. It turns out, I’d far undershot the mark. At the time, I’d not yet fully acquainted myself with the EPA’s July 2011 Cross State Air Pollution Rule; since then, I’ve learned that CSAPR imposed 28 federal implementation plans. Also, I added 3 to the FIP total, in order to represent the de facto FIP that is EPA’s Clean Water Act regime in Appalachia for conductivity. As I explain here, EPA circumvented procedural requirements to impose on Kentucky, Virginia, and West Virginia a new Clean Water Act standard for conductivity, which is EPA’s scary sounding term for harmless saline effluent from surface coal mining operations. The supposed offense is the extirpation of a short-lived insect immediately downstream of surface mines. While this regulatory regime isn’t a FIP, per se, it is one in practice.