The Environmental Protection Agency (EPA) is yet another example of federal government overreach into an area that was once and appropriately the realm of the states. Recently, the American Legislative Exchange Council (ALEC) released a report highlighting the six ways in which the EPA has upset the balance of power, each of which have been described below.

The Environmental Protection Agency (EPA) was created in 1970 with the purpose of consolidating nationwide knowledge and concerns regarding environmental degradation. Before the formation of this federal agency, environmental health was solely the concern of the states. Mindful of this, the EPA was designed to work with the states, practicing cooperative federalism and maintaining the balance of power. Thus, this system would allow the two entities to “effectively balance economic progress with environmental protection.” Despite this seemingly equitable setup, states are far from being ‘the first among equals’ as they were designed to be when it comes to their dealings with the EPA.

According to ALEC, as of 2009 the EPA has seized control, “replacing cooperative federalism with command and control,” greatly altering this delicate balance of power. While recent changes enacted by the EPA have sought to improve possible environmental issues, many of their decisions have been made at the expense of the states. ALEC recently released a new report, “The U.S. Environmental Protection Agency’s Assault on State Sovereignty,” that details 6 ways that the EPA is disrupting the balance of power between state and federal governments.

1. The EPA’s Power Grab. The EPA is willing to “‘disapprove’ a state’s strategy to meet national environmental goals.” Numbers collected by ALEC show that these ‘federal implementation plans’ (FIPs) have more than doubled since 2009. These FIPs suggest that the state governments care less about environmental protection than does the federal government, which ALEC feels simply isn’t true.

2.  The EPA’s new trend of Sue and Settle. Sue and Settle is a “a legal strategy by which the agency effectively replaces state participation with environmentalist groups.” This not only hinders state involvement in environmental issues, but can be seen as a direct refusal by federal government to allow state participation.

3. The pending Ozone Rule. An air quality regulation proposed by the EPA also has the potential to smother state decision-making with regard to industry. It’s enactment would be another example of enforcing unnecessary regulations. In addition, this federally mandated ozone standard will necessarily cause more issues for certain states (California, Texas, and Pennsylvania) than others, and, considering this, should be evaluated form a federalist perspective.

4.  The Clean Water Act. The EPA’s overly broad definition of navigable waters should raise the concern of the states. ALEC notes that the Clean Water Act could “significantly expand the EPA’s federal jurisdiction … at the expense of the states traditional land and resource management role.” What makes matters worse, “the federal government crafted the 2011 interpretation without consulting any state officials or their representatives.”

5.  The EPA’s Carbon Pollution Standard. If implemented, this standard “would ban the construction of new coal-fired power plants,” and possibly cause some preexisting plants to shut down. These limitations would hinder states ability to “tailor [programs] to local circumstances.” Moreover, the limits on greenhouse gas emissions would not noticeably benefit the health of the American people.

6. Regulation of fracking. Whether fracking (the hydraulic fracturing of rock) will continue to be regulated by the states or if it will be passed to the EPA is an unresolved question. The EPA’s stance revolves around the fact that fracking may pollute water sources, though there seems to be no substantial evidence of this, either for or against.  It is ALEC’s worry that the EPA’s concern that fracking leads to polluted drinking water is ‘needlessly alarmist.’

The balance between federal, state and local governments is important; therefore, it is necessary to encourage the states to prevent the EPA from overreaching and upsetting this balance. To do this, it is crucial that the states reform their legislation. ALEC encourages state reform, and includes model legislation for states to pass, which opposes much of the EPA’s regulation in order to keep control within the states.

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