Last week the Environmental Protection Agency and other groups supporting EPA’s “comprehensive pollution diet” for the Chesapeake Bay watershed filed briefs with the Supreme Court to dissuade the Justices from granting the petition to hear the American Farm Bureau Federation’s legal challenge against EPA’s first-of-its-kind water pollution cleanup plan. The case is American Farm Bureau Federation v. EPA (15-599).
The Farm Bureau’s suit—which PLF filed a brief to support—argues that EPA’s master plan for the Bay usurps authority far beyond what the Clean Water Act authorizes, giving federal officials power over local land use and water quality decisions that the Clean Water Act explicitly reserves to state decision makers. More details on the case can be found here and here.
Among the other arguments EPA and its allies curiously keep offering up to justify their latest regulatory overreach is the following: the federal TMDL plan was created with the consent and participation of the affected state governments, how can it violate states’ authority?
The answer is easy: under our system of constitutional federalism, state officials’ participation in or consent to federal overreach is, at best, irrelevant.
This principle was unambiguously confirmed by the Supreme Court in the 1992 case New York v. United States. In that case, the Court struck down—as being unduly coercive on the states—part of a federal law that forced states to take ownership of nuclear waste as a penalty for not participating in a federal nuclear waste disposal program. While New York eventually came around and challenged the law once its people found out what its public servants had gotten them into, New York officials had initially consented to and even worked to assist the law’s enactment.
In that case, the following question was posed: “How can a federal statute be found an unconstitutional infringement of state sovereignty when state officials consented to the statute’s enactment?” Justice O’Connor answered directly: “The Constitution does not protect the sovereignty of States for the benefit of States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals.”
“State officials thus cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution. Indeed, the facts of these cases raise the possibility that powerful incentives might lead both federal and state officials to view departures from the federal structure to be in their personal interests. Most citizens recognize the need for radioactive waste disposal sites, but few want sites near their homes. As a result, while it would be well within the authority of either federal or state officials to choose where the disposal sites will be, it is likely to be in the political interest of each individual official to avoid being held accountable to the voters for the choice of location.”
Just as in the New York case, there are hard political decisions to be made if the Chesapeake Bay is going to be cleaned up—someone has to pollute less. The Clean Water Act reserves certain of those hard decisions to state governments because, among other reasons, they are more directly accountable to the people who will be forced to bear the burden of those decisions.
However, by letting EPA take charge of their responsibilities under the Clean Water Act, those state officials can then throw their hands up and tell their constituents to take it up with the feds. Then, of course, EPA can just point the finger back at the states. The result is that nobody will be held accountable, and without accountability there’s no incentive to allocate the burdens of pollution reduction sensitively or intelligently.
So no, of course it doesn’t matter that state officials participated in EPA’s takeover of implementation authority in violation of the Clean Water Act’s division of authority. If anything, that’s just one more reason the Court should be suspicious of, and strike down, EPA’s Chesapeake Bay TMDL.