EPA, 0; Federalism, 1



Pollutants in the air of state 1 travel downwind and pollute the air of state 2.  How do we solve that problem?  The Clean Air Act sets up a federal system in which the federal government sets up national air-quality standards, with the states left to implement those standards.  In particular, “upwind” states – who generate the bulk of the nation’s power, have to be responsible for their own emissions, lest they pollute the “downwind” states unduly.  The EPA, that engine of a massive rules-emitting machine, believes it gets to have the final, and full, say.  But the DC Circuit disagreed.  The EPA issued rules that not only enforced upwind state’s federally-mandated standards, but the rules also would require upwind states to care of pollutants that came from other upwind states.  As Judge Kavanaugh stated,

“Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress statutory limits on that authority.”

A principle worth remembering, in areas well beyond environmental regulation.

The opinion can be found here:  http://www.cadc.uscourts.gov/internet/opinions.nsf/19346B280C78405C85257A61004DC0E5/$file/11-1302-1390314.pdf


  • There seem to be several sentences and some HTML code missing from this post.

  • sorry about that – seems to come through ok on my computer, though.

  • I don’t really get what this has to do with federalism. It’s more an issue of congressional delegation of power. The EPA was acting in its quasi-legislative role without a grant of authority by Congress. Congress could, within the principles of federalism, allow the EPA to issue these regulations, or could itself pass a statute containing those regulations.

  • There’s also a large blank spot at the top. There seem to be some words missing here: But the DC Circuit disagreed. The EPA issued rules that not only [something seems to be missing here] As Judge Kavanaugh stated,

  • blech, I used <a> instead of <i>

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