This summer, many Americans watched the skies turn orange. Wildfire smoke particulates, now endemic to the West Coast, were also felt on the East Coast with unprecedented severity. As American agencies attempt to mitigate the effects of the climate crisis and protect public health, environmental challenges such as air quality defy the rigidity of the federal-state hierarchy, originating in one locality but spreading dangerous externalities across state or country lines.
In the United States, air is not treated by the law as a natural resource, nor is safe, healthy air considered a right. Instead, the federal government is able to regulate this natural force because of its power through the Constitution’s Commerce Clause. By treating natural resources as cross-state market goods, the Commerce Clause serves as a disputed but indispensable constitutional impetus for federal environmental regulation.
The meta-tension regarding environmental legislation in America today appears to lie in a conservative skepticism about broad regulatory power. Many view independent agencies such as the Environmental Protection Agency (EPA) to be run amok, creating problems in market spaces that favor addressing the externalities of industry to the point that they burden industries’ abilities to function productively. On the contrary, many would argue that the role of government is to make sure that the marketplace is functioning in a way that corporations don’t pose undue and excess burdens on people via externalities such as air pollution.
The Commerce Clause, found in Article 1 Section 8 of the Constitution, gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”[1] The Commerce Clause has been widely interpreted to allow the federal government to regulate interstate commerce. Along these lines, a broad interpretation of the Commerce Clause permits a reading that the federal government can regulate activities that negatively affect the environment and poorly affect interstate commerce. The Commerce Clause is not the most well-tailored provision from which to infer federal environmental intervention; it only centers the market, which is but one factor to consider in a holistic redress to environmental woes.
State-federal constitutional doctrine, stemming from Commerce Clause authority, as it relates to environmental law attempts to address a natural and expansive problem through narrow and hierarchical means. This summer, we saw how air pollution knows no border or tiered government system. The EPA’s Clean Air Act proves a useful case study for examining instances that arise, via the complexities of federal delegation and regulation, of tension or collaboration between the federal government and states, and principles of preemption, federal supremacy, and cooperative federalism. Polar opposite state-federal relationships as they involve clean air exist, for example, in California and West Virginia.
The dispute over the Clean Air Act in the landmark 2021 Supreme Court Case West Virginia v. EPA is an example of state-federal tensions and a weakening sense of federal supremacy. The notion of federal supremacy, stemming back from Marbury v. Madison (1803), manifests in federal preemption, the doctrine that federal rules have to trump state rules if state rules conflict with federal ones. West Virginia v. EPA effectively neutered the ability of the federal government, particularly the EPA, to regulate environmental pollution, and gave a huge amount of this power instead to the states. The court held that the EPA did not have authority to regulate industry emissions. In their reasoning in West Virginia v. EPA the Justices introduced a new principle of statutory interpretation known as the Major Questions Doctrine. The Major Questions Doctrine is a limit on agencies’ regulatory power— if an agency is trying to regulate in a way that decides an issue of “major national significance,” the “action must be supported by clear congressional authorization.”[2] The Major Questions Doctrine signifies an increasingly strict, although somewhat arbitrary, evolution of federal delegation powers.
While the dispute over the Clean Air Act in West Virginia v. EPA is an example of state-federal tensions and a weakening sense of federal supremacy, the enforcement of the Clean Air Act in California, however, reveals a near-opposite relationship, one of cooperative federalism. Cooperative federalism is a principle that recognizes the sometimes confusing overlap between state and federal powers and builds upon this necessary interplay. Scholars believe cooperative federalism can be a springboard for regulatory inventiveness; Heather Gerken writes that “cooperative federal regimes do a better job of catalyzing state experimentation.[3]
Along these lines, the Clean Air Act sets minimum requirements for emission standards; the very same Act at question in West Virginia v. EPA can, in a different light, be seen as a prime opportunity for cooperative federalism. Under the Clean Air Act, California can enact a law that not only meets but far exceeds the federal agency’s standard for vehicle emissions, using federal legislation as a jumping off point to take bold climate action. In addition, the Clean Air Act allows other states to adopt California’s motor vehicle emission standards. States can either adhere to the lighter federal standards, or California’s more strict ones.
Such provisions are an example not only of cooperative vertical federalism, the relationship between the federal government and states, but of cooperative horizontal federalism as well, the relationship between states as shaped by the federal government. The EPA was established to regulate pollution “in concert with the states.”[4] California’s regulatory relationship with EPA is a prime and expansive example of such a concert; the relationship is not merely a duet between the state and federal government— other states are invited to harmonize as well.
While the Commerce Clause is far from the perfect constitutional principle from which to derive federal environmental regulation, it’s what we’ve got. There has been much doubt about the Commerce Clause’s continued capacity to enable environmental regulation. As of yet, however, it has largely held up. In their 1995 ruling in U.S. v. Lopez, the court established three factors for what Congress can regulate regarding commerce pursuant to the Commerce Clause—Congress can regulate only the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that substantially affect or relate to interstate commerce.[5] The court also noted that it is important to distinguish between economic and non-economic activity, as Congress can only regulate activity that is deemed economic.[6] Many scholars expressed fear that if this more scrutinizing view of congressional commerce power were applied, federal environmental laws regulating intrastate resources would be at risk. It’s been almost 20 years, and no such changes have been made. Additionally, the surprise ruling this year in Haaland v. Brackeen reveals a continued commitment to preserving the Commerce Clause.
The Commerce Clause remains a flawed but essential provision to enable federal regulations, particularly in an era of heightened dangers such as deteriorating air quality. To remediate the challenges in addressing borderless phenomena such as air quality within a state-federal hierarchy system it is essential that the Court, states, and federal agencies look to expand opportunities for cooperative federalism in addressing environmental hazards and the climate crisis.
[1] U.S. Constitution, art. 1, sec. 8, cl. 3
[2] Jaclyn Lopez, “The Major Questions Doctrine Post-West Virginia v. EPA,” American Bar (The American Bar Accosiation, January 3, 2023), https://www.americanbar.org/groups/environment_energy_resources/publicat…(link is external).
[3] Heather K. Gerken, “Federalism as the New Nationalism: An Overview,” The Yale Law Journal, April 2014, https://www.yalelawjournal.org/essay/federalism-as-the-new-nationalism-a…(link is external).
[4] “The Origins of EPA,” EPA (Environmental Protection Agency), accessed May 7, 2023, https://www.epa.gov/history/origins-epa(link is external).
[5] Sanford Levinson et al., Processes of Constitutional Decisionmaking: Cases and Materials (Frederick, MD: Aspen Publishing, 2022), 600-644.
[6] Ibid.