ENVIRONMENTAL CONTROLS Should Be Turned Over to the States

USA Today (Society for the Advancement of Education), May, 1999 by David Schoenbrod

Even when there is much cross-border pollution, as where two states border on the same lake, the states may deal with the issue through an interstate compact or less formal means of cooperation. Congress could encourage such cooperation by enacting the proposal of Thomas W. Merrill of the Northwestern University School of Law calling for a "golden rule of interstate pollution." Each state legally must protect citizens of other states as they protect their own. Disputes over interstate pollution that states do not prevent individually could be settled by negotiations between the states or, failing that, by Federal courts enforcing these general rules. Thus, the Federal government would provide general rules establishing the respective obligations of the states on cross-boundary pollution. The states then would regulate local sources within those parameters.

The states, acting alone or through interstate compacts, as well as general rules enforced by courts, should address most interstate pollution adequately. If unacceptable problems remain, they should not warrant Congress to control all interstate pollution. Rather, Congress should tailor its response to the problematic region or industry. Where, however, the Federal government is concerned about some Federal resource that needs special kinds of protection from pollution, such as the visibility in the national parks, and a state fails to provide that protection, there is reason for Congress to act.

Third, the EPA should propose rules of conduct to Congress for goods, such as new cars, when state-by-state regulation would erect significant barriers to interstate commerce. In no circumstance should the Federal government mandate state action. In the limited circumstances where there is a Federal job, the Federal government should do it. Otherwise, the temptation for Congress to play the mandate game would be too great.

Applying these rules would contract the Federal role radically. Take air pollution, for example. Federal control is pervasive, either through direct regulation or mandates to the states. Under this proposal, states would be under no Federal mandates and the Federal role would, in the first instance, be limited to new cars and enacting general rules of the sort recommended by Merrill. Instead of assuming that interstate pollution would not be controlled adequately, the Federal government should watch what is done by the states and courts and be prepared to step in if it appears that any unacceptable interstate harm might occur.

Water pollution--whether of rivers, lakes, or aquifers--could be handled analogously. There is no substantial interstate impact and no substantial risk of patchwork regulation resulting from state control of such issues as the safety of drinking water, pollution from underground storage tanks or abandoned hazardous waste sites, asbestos in schools or other buildings, radon in houses, or lead paint or plumbing in housing. These are important issues, but not Federal ones.