CPR President Rena Steinzor Testifies at House Hearing on Federal vs. State Environmental Policy and Constitutional Considerations

by Erin Kesler

July 11, 2014

Today, CPR President Rena Steinzor testifes at a House Energy and Commerce Subcommittee on the Environment and the Economy Hearing entitled, "Constitutional Considerations: States vs. Federal Environmental Implementation Policy."

According to her testimony:

As I understand the situation, the Subcommittee’s leadership called this hearing in part to explore the contradiction between the notion that legislation to reauthorize the Toxics Substances Control Act (TSCA) should preempt any state authority to regulate chemical products with the notion that the federal government should depend on the states to regulate coal ash and has no role to play in protecting the public from such threats. 

These positions are a dichotomy if there ever was one. The contradictory ideas that the federal government must dominate the field in one area but that the state government should be exclusively in control in another seems irreconcilable as a matter of principle. 

Of course, as a practical matter, these irreconcilable positions have consistent pragmatic outcomes: they help big business. The chemical industry feels much more confident about its ability to browbeat the Environmental Protection Agency (EPA) into quiescence under the weak provisions of the TSCA legislation under discussion, so long as proactive states like California are knocked out of the equation. The electric power industry is much happier submitting to state regulators, who, as the recent spill in North Carolina clearly illustrates, have done almost nothing to control the severe hazards of improper coal ash disposal than it would be dealing with EPA’s more stringent regulatory proposals. Or, in other words, states should prevail as long as they aren’t doing much to gore the ox of big business. Once they get started down the road to regulate more stringently, however, the federal government must step in to halt a “patchwork” of overly aggressive regulation. 

This debate has been going on, in one iteration or another, for decades. Congress has grappled with it, the Supreme Court has grappled with it, the states have participated in the debate, as has the Executive Branch, and out of all this intense debate have come two fundamental principles well-recognized by mainstream constitutional scholars: 

One. The wide range of federal programs dealing with health, safety, and the environment are grounded appropriately in the Commerce Clause. While the Supreme Court has imposed some limits on federal authority, they do not apply to the structure of the federal environmental law. 

Two. A coherent set of eminently reasonable principles defines the cooperative partnership that prevails in the health, safety, and environmental area, and I urge the subcommittee to return to these principles in allocating responsibility to federal and state governments. 

To read her testimony in full, click here.

Be the first to comment on this entry.
We ask for your email address so that we may follow up with you, ask you to clarify your comment in some way, or perhaps alert you to someone else's response. Only the name you supply and your comment will be displayed on the site to the public. Our blog is a forum for the exchange of ideas, and we hope to foster intelligent, interesting and respectful discussion. We do not apply an ideological screen, however, we reserve the right to remove blog posts we deem inappropriate for any reason, but particularly for language that we deem to be in the nature of a personal attack or otherwise offensive. If we remove a comment you've posted, and you want to know why, ask us (info@progressivereform.org) and we will tell you. If you see a post you regard as offensive, please let us know.

Also from Erin Kesler

Erin Kesler was a Communications Specialist for the Center for Progressive Reform.

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
info@progressivereform.org
202.747.0698

© Center for Progressive Reform, 2015