March 10, 2016


On February 23, 2016, the Chairman of the Senate Environment and Public Works Committee, Sen. James Inhofe (R-OK), joined by 204 other Members of Congress, filed an amici brief with the D.C. Circuit in opposition to EPA’s Clean Power Plan. The brief argues, among other things, that the Clean Power Plan violates the Clean Air Act’s foundational principle of cooperative federalism, explaining:

“EPA takes a coercive approach that commandeers the States to implement and enforce the agency’s policy choices. EPA does so by mandating CO2 reductions in most States that cannot be achieved by controls on power plants alone and, instead, would require the States to restructure their electricity sectors. In particular, the Final Rule requires States to, among other things, adopt measures that may include fundamentally altering generation, transmission, and consumption of electricity, enacting new state legislation, adopting emissions trading programs, pursuing energy efficiency and renewable energy mandates, and expending significant State and local governmental resources to achieve compliance.”

A copy of the congressional amici brief, which was joined by the Speaker of the House and the Senate Majority Leader, is available on the Senate EPW Committee website.

Yesterday, federalism concepts in environmental law and policy were, once again, front and center at a hearing before the Senate Environment and Public Works Committee. Entitled “Cooperative Federalism: State Perspectives on EPA Regulatory Actions and the Role of States as Co-Regulators,” the Committee heard from the directors of five different state environmental agencies about their experiences with the U.S. Environmental Protection Agency (EPA) in recent years. During the hearing, Chairman Inhofe described cooperative federalism as a core principle of most federal environmental statutes including the Clean Air Act and Clean Water Act, and he identified several, in his words, “troubling themes” at EPA that he has observed in recent years, such as:

  • EPA has neglected its responsibility to consult with states at early stages of regulatory decision-making.
  • EPA has given states inadequate opportunities for meaningful participation in the regulatory process.
  • EPA has allowed activist groups to set the agency’s regulatory agenda.
  • EPA has used regulatory guidance to circumvent the lawful rulemaking process.
  • EPA has imposed an unprecedented level of Federal Implementation Plans, essentially overriding the role of the states to implement air quality programs.
  • EPA has submitted budgets that call for increased cuts to state programs while seeking to increase funds for EPA programs.

The majority witnesses, including Secretary Randy Huffman (West Virginia Department of Environmental Protection), Secretary Steven Pirner (South Dakota Department of Environment and Natural Resources), and Director Becky Keogh (Arkansas Department of Environmental Quality), criticized EPA on a range of topics including the Clean Power Plan, the “Waters of the US” rulemaking, ozone standards, regional haze determinations, and recent EPA actions concerning “Startup, Shutdown, and Malfunction” provisions commonly found in state air quality regulations. For their part, minority witnesses, including the chief environmental executives from Vermont and Delaware, focused on interstate air quality concerns, climate change, and their support for recent EPA actions.

More information about the hearing (including witness testimony) is available on the Committee’s website. In advance of the hearing, Chairman Inhofe requested feedback from the environmental agencies of the states represented by members of the EPW Committee. Copies of the 17 response letters received by the Committee are available here.

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