How the Conflict Between States and the Federal Government is Hurting the Emerging Clean Energy Economy

Our nation’s environmental and energy laws have always acknowledged states’ special responsibility to look after the health and welfare of their citizens. Congress structured the Clean Air and Clean Water Acts, for example, around federally-imposed minimum standards for clean air and clean water, with states having explicit authority to impose stricter, state-based standards. Likewise, while the Federal Power Act looks to the federal government to oversee interstate wholesale electricity sales, it preserves state control over retail sales and gives a wide berth to states to shape a power mix of their choosing.

From the outset, the Trump administration has painted federal environmental regulations as constraints that “unduly burden” the promotion of domestic fossil fuels. President Trump’s earliest Executive Orders laid down that bias, and his administration’s manic (and mostly unsuccessful) efforts to remove key environmental protections has since reinforced it.

But to the dismay of traditional supporters of states’ rights, the administration also has consistently bashed state actions that, in its view, impede President Trump’s polluter-friendly “energy dominance” agenda. Federalism principles apparently mean little to this administration, at least when states elevate their citizens’ health and environmental welfare over unbridled domestic energy production and increased pollution.

Section 401 of the Clean Water Act, which authorizes states to object to projects that impair state water quality standards, provides a case in point. President Trump recently asserted that states are exercising their rights to protect water quality under Section 401 in a manner that is “hindering the development of energy infrastructure.” His April 10, 2019 Executive Order calls on the Environmental Protection Agency (EPA) to overhaul Section 401 procedures. This, despite an earlier warning from the Western Governors Association that the administration should not interfere with state authority under Section 401, calling it “vital to the Clean Water Act’s system of cooperative federalism,” and recently-filed objections by a coalition of 14 state attorneys general to an Army Corps of Engineers Directive that would limit state review under Section 401.

The administration also has been aggressively dismissive of states’ rights under the Clean Air Act. In particular, in connection with its attempted rollback of automotive emissions standards, the EPA is seeking to take the unprecedentedstep of revoking California’s long-recognized statutory rights to impose stricter tailpipe standards under the Clean Air Act, along with the rights of more than a dozen additional states to follow California’s lead under Section 177 of the Act. And in another affront to states’ rights under the Clean Air Act, the EPA has shirked its statutory responsibility to curtail upwind air pollution by turning away state petitions and refusing to enforce the Clean Air Act’s “good neighbor” and interstate transport provisions that protect downwind states’ air quality rights. Plus, in an apparent effort to sidestep state objections to offshore drilling activity, the administration is proposing to weaken states’ rights under the Coastal Zone Management Act, triggering strong objections from state attorneys general.

A similar pattern is emerging under the Federal Power Act, where the Federal Energy Regulatory Commission and the organized wholesale markets it oversees are supporting policies that undercut states’ rights to promote the increased use of clean energy in their states. As explained in the op-ed published in Utility Divethis week by my colleague Jessica Bell, it is particularly important that the federal government respect states’ rights to shape their own energy policies, given the key leadership role that states are taking in fighting climate change and transitioning to a clean energy economy.

While the administration’s failure to respect states’ rights is disappointing, we can rest assured that state attorneys general will continue to diligently defend states’ rights to protect their citizens’ interests in a clean and safe environment, including their rights to transition to a clean energy future.