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States Voice Growing Concern Over Preemption of Environment Rules
November 26, 2004


Key state officials are raising concern over the growing number of congressional and Bush administration efforts to preempt state environmental and other rules, and are pushing a series of measures to raise awareness of the issue, state sources and other observers say.

The National Governors Association (NGA) has asked the National Academy of Public Administration (NAPA) to develop a report on recent and anticipated efforts in Congress to broaden federal authority by preempting state environmental and other regulations, state sources and environmentalists say.

"There has been a lot more activity in Congress lately, and NGA wanted a body like NAPA to look into this as a way to stem the tide of preemption," one environmentalist says. "Down the road, this report could be potentially influential in Congress."

In addition to NGA, the National Conference of State Legislatures (NCSL) is also highlighting the issue. Organizers of the group's fall meeting next month are convening a special briefing entitled "The Incredibly Shrinking State Authority: The Causes and Consequences of Preemption in the Federal System."

"I think this issue is getting bigger and bigger, especially with all the ongoing or proposed or expected rulemakings," an NCSL source says. "We are probably the ones who will make the most noise about preemption . . . and our guys are all over the place politically."

Sources say states are increasingly concerned about federal preemption of environmental rules following a 2003 amendment to the Clean Air Act barring states besides California from regulating emissions from small engines, a planned paint industry effort to preempt state ozone laws and Bush administration reforms to EPA's new source review (NSR) program that may bar states from adopting stricter requirements.

While many states have laws precluding them from adopting standards stricter than federal requirements, observers say that federal preemption is especially important in the environmental arena because states are increasingly enacting laws that are distinct from, and in some cases stricter than, federal standards.

"Significant environmental progress and leadership is being shown" at the state level, says a legal expert who has been consulted for the NAPA study.

According to a document obtained by Inside EPA, NAPA plans to pose questions to a stakeholder panel about what factors are leading Congress to favor preemption, the benefits and disadvantages of federal uniformity, and whether other options exist that would meet the need for consistency besides congressional preemption.

The document also asks whether mechanisms are available to states to create uniform standards without congressional action. The questions are available on

NAPA has not yet indicated when it will release the report, but sources involved in the assessment say the group is aiming for a quick turnaround. Officials who are working on the report could not be reached for comment.

NAPA is a non-partisan organization created by Congress to assist federal, state, and local governments in improving their effectiveness, efficiency and accountability, according to its website.

NGA officials could not be reached for comment.

In recent years, states' rights have generally been championed by Republicans. However, industry and other proponents of federal preemption say it may be necessary to avoid a patchwork of inconsistent state standards. In some cases, industry has successfully pushed GOP lawmakers to preempt state environment rules.

For example, Sen. Kit Bond (R-MO) inserted an amendment into omnibus spending legislation in 2003 that instructed EPA to develop a national rulemaking for new small nonroad spark ignition engines under 50 horsepower, while curbing state authority to craft separate rules. The amendment also gave EPA additional oversight over an ongoing California rulemaking on new lawn and garden equipment.

In recent weeks, the paint industry began signaling that it is seeking legislative help to amend the air law to preempt states from enacting limits on ozone precursors found in paint and coatings that are stricter than what federal ozone standards require (Inside EPA, Nov. 12, p3).

States are also concerned over Bush administration attempts to preempt state rules during administration reforms to EPA's NSR program, which states fear EPA may use to bar them from adopting stricter requirements.

But states run by both Republicans and Democrats are now seeking to push back against attempts by federal officials and many in industry to pursue policies states say undermine their sovereignty, sources say. "The Bond amendment surprised a lot of states. They weren't as prepared as they will be when it happens again," says one state air regulator.

The issue has also gained increasing prominence following a series of Supreme Court cases that have generally limited federal preemption of state disability, auto safety and health insurance rules. In the environmental arena, the high court overturned a local California rule imposing clean air requirements on government auto fleets.

A new book scheduled for publication by the Environmental Law Institute argues that some of the high court rulings may threaten states' rights, even though they limited federal preemption. The current Supreme Court has "stifled state experimentation even while professing a commitment to protecting the dignity and authority of the states in the name of constitutional federalism," Doug Kendall, the book's author, says in a recent newspaper editorial.

Kendall argues that states view federalism as a way to allocate power between states and the federal government, noting that states often support the need for some federal role. "This vision of federalism will not completely satisfy those who want the court to reduce federal power, nor those who urge the court to enforce every federal mandate. But the court's jurisprudence should not be about satisfying a political constituency; it should be about making our system work," Kendall wrote.

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