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