EPA’s 52nd Takeover of State Regulatory Program Provides Perfect Segue to New Paper on Cooperative Federalism in the Obama Age

EPA yesterday promulgated in the Federal Register the agency’s 52^nd Clean Air Act takeover of a state air quality program, known as a “Federal Implementation Plan” (“FIP”). This time, the target was Arizona’s visibility improvement program, known as Regional Haze.

The agency’s latest takeover provides an unfortunate segue to a report I authored that was published this week by the Competitive Enterprise Institute, titled “How the Obama Administration Is Undermining Cooperative Federalism under the Clean Air Act.” The paper, which is reposted at the bottom of this blog, includes the latest survey of EPA regulatory takeovers of state air quality programs, known as federal implementation plans (“FIPs”). As noted above, Obama’s EPA has imposed 52 Clean Air Act FIPs. By comparison, the previous three presidential administrations—George H.W. Bush, William Clinton, and George W. Bush—accounted for a grand total of…FIVE! Mind you, there are still two lame duck years left of the current administration.

This is not a welcome trend. As I explain in the paper, a FIP is the most aggressive action EPA can take against a State government. It’s a direct usurpation of a co-sovereign. This is why previous administrations have resorted to FIPs so sparingly. Moreover, the paper details how 98% of EPA’s Clean Air Act FIPs are of dubious legitimacy. Finally, the paper proposes a number of legislative solutions to reestablish Clean Air Act cooperative federalism as the Congress intended it. The most provocative of these solutions is for Congress to level the deference accorded by Article III courts to agency-decision making when State and Federal Governments disagree how to implement the Act, such that EPA’s factual determinations and textual interpretations are no longer controlling in this circumstance.