NCPA - National Center for Policy Analysis

Environmental Protection Agency Regulation Intrudes on State Rights

July 11, 2013

Congress had a vision for national environmental policymaking when it created the U.S. Environmental Protection Agency (EPA). It is known as cooperative federalism. In practice, cooperative federalism meant that the EPA and states worked together in order to effectively balance economic progress with environmental protection, says William Yeatman, an energy policy analyst at the Competitive Enterprise Institute.

Since 2009, however, the EPA has radically altered this balance of power. To be precise, the agency has expanded its own prerogatives, at the expense of the states' rightful authority.

  • Since 2009, EPA regulatory disapprovals are up 190 percent relative to the average during the previous three presidential terms.
  • EPA takeovers of state programs are up 2,750 percent.
  • The EPA expanded its own jurisdiction under the Clean Water Act; by reinterpreting the phrase "navigable waters," the agency would seize jurisdiction over virtually every drop of water in America. The rule is a significant threat to states' traditional land and resource management role.
  • The EPA is expected to revise the National Ambient Air Quality Standard (NAAQS) for ozone. This unwarranted rule would plunge up to 96 percent of the country into a classification known as "NAAQS-nonattainment," one of the harshest possible regulatory programs.

The EPA has limited states' ability to choose which fuels they are allowed to use for electricity generation.

  • The EPA has proposed a regulation, known as the Carbon Pollution Standard, which would effectively ban the construction of new coal-fired power plants.
  • In addition, the EPA has issued a suite of pending or final regulations that are likely to lead to the retirement of 81,000 megawatts of coal-fired electricity generation.

In addition, the EPA has been attempting to regulate hydraulic fracturing ("fracking") -- the technological revolution in drilling that has led to a precipitous increase in American oil and gas production over the last five years. The EPA has reviewed environmental statutes looking for "loopholes" with which it could regulate the process. The agency has also made unwelcome intrusions into the fracking oversight process in a number of states.

Source: William Yeatman, "The U.S. Environmental Protection Agency's Assault on State Sovereignty," American Legislative Exchange Council, 2013.


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