The ascension of Scott Pruitt as Administrator of the Environmental Protection Agency (EPA) ushers in a new chapter in the long story of cooperative federalism in the administration of U.S. environmental laws. Pruitt's words and actions as the Attorney General of Oklahoma suggest that, as much as any other issue, idea, or policy, federalism will be a recurring theme.
But are the cries about federalism really about finding the proper balance of state and federal roles in implementation of our environmental laws? Or is federalism merely a tool in the conservative toolbox used to achieve their real aim: dismantling environmental regulation?
To be sure, a focus on federalism has long been one of the core values of conservatives as they argue for devolution of power to state and local governments. Indeed, the U.S. Supreme Court has recognized federalism as one of the oldest and most uniquely American policy debates.
But federalism is merely the label or frame for debates over the balancing and sharing of power between the states and the federal government. If simply tipping that balance toward state authority and away from the federal government was really the true concern of Pruitt and other conservatives, then you would not expect to see it invoked by conservatives to enhance federal power. And yet, at times, it has been.
As thoroughly described by CPR's Robert Glicksman in a 2006 article, all three branches of the federal government have at various times invoked federalism to diminish environmental protections, but not necessarily always federal authority. The article explains that for most of the history of federal environmental protection – and certainly in the initial decades – efforts to rein in environmental regulations did indeed call for limits on federal power. But by the mid-2000s, with the extent of federal environmental protection waning after years of attack, states began to step into the void.
What happened when the locus of action shifted in limited cases from the federal government to certain progressive states desiring to expand environmental protection in the face of weak policies and enforcement at the federal level? Did conservatives stay true to their loudly articulated federalism values by trumpeting the right of states to protect the environment within their borders? Or did they abandon federalism principles and argue for shifting the costs of pollution from the polluters to the air-breathing and water-drinking public?
As explained by Professor Glicksman, when states "reacted to the shackles imposed on federal authority to protect the environment" by fulfilling "their potential as 'laboratories' of experimentation," those in charge at the federal level at that time abandoned their previous position. Rather than supporting states' rights to develop greater environmental protection, conservatives in power instead "imposed limitations on state and local authority."
Fast forward a few years to the election of President Barack Obama and the ascendancy of Democrats in Congress, and you'll see the whole story play out in reverse. When the EPA got active again, conservatives once again fell in love with states' rights.
It was in this environment that Scott Pruitt, as Oklahoma Attorney General, made a name for himself. As expected, he dusted off the old federalism shibboleth. The EPA's costly "overreach" became the talking point of the day for conservatives, and Pruitt one of the most outspoken proponents of this rallying cry.
It's pure hypocrisy to use the federalism excuse when it conveniently fits your aim to diminish corporate regulation and then flip your views when needed to curtail state authority to enact new environmental protections.
If you need any more evidence that the federalism argument is a red herring, look at Pruitt's record. When he took office, he didn't simply establish a "federalism unit" within the Oklahoma Office of the Attorney General. Rather, the establishment of this new unit happened to coincide with the elimination of the Environmental Protection Unit.
We have seen this story play out before, and it's not hard to see where we're headed now that Pruitt is in charge of the EPA. And the first test is coming: Soon, the EPA will have to pass judgment on whether to grant California a Clean Air Act waiver to allow it to set stricter vehicle emissions standards than EPA has established, which would continue a longstanding practice. Automakers are already in the habit of building cars to meet California's standards. So will Pruitt grant California's waiver in the name of states' rights? Or will he deny it as a defender of pollution and polluters? Ideological consistency would suggest the former. But Pruitt's history suggests the latter.
Top photo by the Natural Resources Defense Council, used under a Creative Commons license.