Subcommittee Examines Role of States and Congress under the Constitution

July 11, 2014

WASHINGTON, DC – The Subcommittee on Environment and the Economy, chaired by Rep. John Shimkus (R-IL), today held a hearing on “Constitutional Considerations: States vs. Federal Environmental Policy Implementation.” The hearing focused on the authority the Constitution grants Congress to set uniform, national standards in certain aspects of environmental policy and the role of the states in taking the lead in crafting state-specific environment solutions.

Environmental federalism is a longstanding topic of interest to the subcommittee. The subcommittee’s first hearing this Congress featured representatives from state offices and their views on the role states play in protecting the environment. At today’s hearing, members heard from a panel of Constitutional law experts about the scope of Congress’ authority under the Commerce Clause, limitations on Congress’ power set by the Tenth Amendment, and other factors Congress should consider when evaluating policy implementation.

“Today’s hearing gives us an opportunity to discuss some important questions we face as lawmakers. When we create policies to protect human health and the environment, when should we defer to states? When should policy be set at the national level but implemented at the state level? When should it be implemented at the national level? At first, different provisions of the U.S. Constitution seems to offer different answers. But our job is to reconcile those provisions,” said Chairman Shimkus.

Jonathan Adler, Professor of Law at Case Western University, explained the importance of constitutional limitations on federal environmental polices, stating, “It is a fundamental principle of our constitutional order that the federal government is one of limited and enumerated powers, and that those powers not delegated to the federal government are reserved to the states and the people. All federal laws, no matter their value or purpose, must be enacted pursuant to the federal government’s enumerated powers and may not transgress other constitutional constraints. This is as true for environmental protection as it is for national security or health care.”

Adler went on to assert that the federal government should only intervene when necessary and beneficial, such as a need to eliminate burdens on interstate commerce. Adler stated, “Despite the environmental successes of the past three decades, the overlapping and contradictory state and federal rules do not lead to efficient or effective environmental protection. It is in some senses an historical accident that state leadership in environmental policy was supplanted by federal regulation, and environmental policy could be improved if states regained more of their historic role. The federal government did not come to dominate environmental policy because a more decentralized system was leading to environmental ruin, and much of the what the federal government does in environmental policy could be left to the states.”

Richard Revesz, Professor of Law and Dean Emeritus at New York University School of Law, described situations when, if ever, the federal government should preempt state standards. He explained, “In general, the federal government should act when a pathology, such as the presence of interstate externalities, would lead some states to set suboptimally lax standards if left to their own devices. But those standards should be viewed as minimum standards, allowing states to set more stringent limits if they wish to do so.” However, Revesz clarified exceptions should exist in cases such as “goods exhibiting significant economies of scale in production,” explaining, “In such cases, disparate state regulation would break up the national market for the product and be costly in terms of foregone economies of scale.”

Chairman Shimkus pledged to continue to examine this important topic and said, “At our next hearing on July 23 we invite EPA, the states, and others to discuss steps to modernize state and federal cooperation.”