Widener University Delaware Law School
From the SelectedWorks of David R. Hodas
September 16, 2014
Constitution and Pollution: Federalism at Work
David R. Hodas, Widener University - Delaware Campus
Available at: http://works.bepress.com/david_hodas/52/
THE NEWS JOURNAL delawareonline.com
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The Constitution and pollution: Federalism at work
DAVID HODAS
Our Constitution has proven to be a
remarkable document that has created
a durable, resilient governance structure for our vast nation of 50 states and
more than 310 million people.
Most people think of the Constitution
as the protector of important individual
rights from government deprivation.
These rights, such as freedom of
speech, freedom of religion, freedom
from unreasonable searches and seizures, privacy, equal protection of the
law, the right against self-incrimination
are essential protections of the individual against the power of government.
The Constitution also provides the
necessary structure for our democracy
so the nation and its citizens can cooperate and prosper. Our governmental
system divides power and responsibility between the national government
and the federal states.
The Founders created a powerful
national government composed of quasi-sovereign states. According to Supreme Court Justice Anthony Kennedy,
“[Federalism] was our Nation’s own
discovery. The Framers split the atom
of sovereignty.”
Under our federal system the Constitution, treaties, and federal statutes
are the supreme law of the land, preempting conflicting state laws.
Yet, some people argue that federal
law should not trample states; others
observe that national problems demand
national solutions. Of course, national
solutions generally require local imple-
mentation. Tensions arise when federal
law commands state legislatures or
officials to carry our federal mandates.
The Supreme Court has made clear that
the national government cannot command state government to fulfil the
federal mandate.
The federal government can ask
states to help – it cannot force them to
“volunteer.” This brings us to the concept of “cooperative federalism.” Let
us consider cooperative federalism in
the context of pollution. Rivers and
streams carrying pollution from one
state to another; air-pollution does not
stop at state boundaries.
The Constitution prohibits the federal government from ordering states to
clean up pollution with each state. Yet,
pollution comes from local activity. It
would be hard for federal regulators
sitting in Washington, D.C., or even
regional offices scattered about the
country to know about local pollution,
local conditions, and to oversee hundreds of thousands of polluters. But
many states do not have the resources
or the scientific capability to set standards necessary to protect human
health and the environment for a wide
array of pollutants, dischargers, and
local and regional ecologies.
Congress’ solution was to craft a
system of cooperative federalism. Congress set national goals and policies and
general nationwide standards, and
authorized Environmental Protection
Agency to use its scientific and technical expertise to establish pollutant
specific rules, and to implement and
enforce the law.
At the same time, in statutes such as
the Clean Water Act and the Clean Air
Act, Congress protected the States’
primary responsibility to control pollution and to plan the use of non-federal
land and water. To achieve this balance,
Congress allowed states to volunteer to
administer the law themselves, using
state laws that met the minimum federal requirements, state agencies, state
environmental staff and state lawyers.
If a state agreed to do this, then EPA
would step aside and give the state
primary responsibility to administer
the law its own way.
Since EPA would not need a major
presence in such a state, EPA would
send the state money that EPA would
otherwise have spent on permitting and
enforcement. Under this system of
cooperative federalism, the federal
government set national standards but
states could implement the law in a way
that best fit with the states unique circumstances.
EPA would only step in if a state
failed to meet its commitment to implement the law. If a state does not wish to
administer the federal law, it need not.
In that case the federal government
will. States were also given the power
to set standards more stringent than
the federal minimum. In other words, if
a state wanted to have more protection
of public health and its environment
than the federal law required, it could,
and that more protective law would, by
Congress’ command, trump the less
protective national standards.
This approach, with its own set of
issues, has proven to be remarkably
successful. Rivers no longer burn;
towns and cities no longer routinely
discharge raw sewage into our rivers,
streams and lakes; air no longer routinely burns our eyes and throats. When
hazardous wastes were discovered
leaching from old landfills across the
country in the mid-1970s, Congress
enacted federal hazardous waste and
clean-up laws using the cooperative
federalism model. Hazardous wastes
are now properly and safely disposed
of; old contaminated sites are being
cleaned-up and reused and new contaminated sites are rare.
Cooperative federalism harnesses
the respective strengths of the federal
government and the states. Indeed, the
Constitution has proven to be a remarkable document. As John Marshall held
in McCulloch v. Maryland (1819), the
Constitution was “intended to endure
for ages to come, and consequently, to
be adapted to the various crises of human affairs.” (emphasis original).
David Hodas is professor of Llaw and H. Albert Young
Fellow in Constitutional Law, Widener University School
of Law.
Partisan politics hurt state’s environmental efforts
TOM KOVACH
es; created a critical
harmful legislation.
courage in the form of a
mongering based on
burden on landfills
Also during my tenure mass of recycled materirational and balanced
anecdotal evidence and
(which are already overals; provided a mechaThree opposing forces balance actual environas a Republican legislaapproach to environburdened) and increased
nism for voluntary recyaffect the implementator, I defied Republican
mental protection from
mental impact with the
the cost to dispose of
cling; and helped the
tion of an appropriate
caucus leadership to
your elected officials.
societal benefits of prossuch materials. Moreenvironment. As a result
approach to environrally Republican support
The environment and the
perous employers.
over, the bill would have
of limited Republican
mental protection and
for Gov. Markell’s 2010
economy are counting on
Unintended and seristymied innovation that
support, the bill passed –
preservation. These
recycling legislation. I
it!
ously harmful consewould allow the cona bill that simultaneously
three forces can be genquences result from
version of waste biomass did so because I put raTom Kovach serves as special counsel
helped small businesses
erally categorized as:
tionality above partisan
elected officials acting
into locally produced
at the law firm of A.M. Saccullo
and preserved the envienvironmentalists, antipolitics and, looking past
without a rational and
energy, creating permaronment.
regulatory interests and
Legal and as an adjunct professor at
party lines, focused on
informed perspective.
nent local jobs and elimThere are real danthe government. ResponWilmington University. He is the
the significant merits of
For example, a bill
inating thousands of
gers to the environment
sible government must
founder of the nonprofit Assist and
the legislation that rewas introduced from the
pounds of pollutants
and to our economy in
provide a rational balInspire Delaware, is the immediate
duced and “sunset” the
floor of the Delaware
from our airstream
caused by older, out-ofcontinuing with an overly past president of New Castle County
ance to the polar opposite State House (without an
bottle tax; removed the
state electric generating
partisan approach to the
perspectives of environCouncil, served one term as a state
significant burden of
environmental commitsites.
environment. So, what
mentalists and anti-regurepresentative and was the 2012
bottle collection for huntee hearing) at the end of
In this case, rationalican you do? Demand
latory forces – a balancRepublican candidate for Congress.
dreds of small businessthe legislative session in
ty prevailed. Serving as a
ing act that is exceedingJune 2010. This DemoRepublican legislator at
ly difficult given the
crat-sponsored legislathe time, I understood
political nature of govtion attempted to expand
the unintended but harmernment.
the scope of Delaware’s
ful consequences and
Government and
“incinerator ban” by
objected to this bill. Even
elected officials are, of
banning scrap or recywith just my one discourse, heavily influcled biomass. This legissenting vote, Collin O’Menced by the views of the lation was well-intended,
ara, the former secretary
two major political parbut it was not well
of the state Department
ties: one extreme inthought out. The bill
of Natural Resources and
sisting on the absolute
would have prevented an
Environmental Control,
need to protect the envialternative to landfilling
recognized that the legisronment, and the other
biomass materials and
, QHYHU WKRXJKW RXU RZQ EDWKURRP ZRXOG EHFRPH WKH
lation was not only uninsisting on the absolute
killed a potential market
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necessary, but potentially
need to promote jobs and for reclaiming such maOLIWLQJKLVOHJVRYHUWKHVLGHVRIWKHWXEDQG,ZDVDIUDLG
harmful, and prevailed
the economy. Stereotypiterials.
upon Gov. Markell to act
cally, Democrats support
At its essence, the bill
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