[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]


 
                    CONSTITUTIONAL CONSIDERATIONS: STATE 
                      VERSUS FEDERAL ENVIRONMENTAL POLICY IM-
                      PLEMENTATION

=======================================================================

                                HEARING

                               BEFORE THE

              SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 11, 2014

                               __________

                           Serial No. 113-159
                           
                           
                           
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                           


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                    COMMITTEE ON ENERGY AND COMMERCE

                          FRED UPTON, Michigan
                                 Chairman

RALPH M. HALL, Texas                 HENRY A. WAXMAN, California
JOE BARTON, Texas                      Ranking Member
  Chairman Emeritus                  JOHN D. DINGELL, Michigan
ED WHITFIELD, Kentucky               FRANK PALLONE, Jr., New Jersey
JOHN SHIMKUS, Illinois               BOBBY L. RUSH, Illinois
JOSEPH R. PITTS, Pennsylvania        ANNA G. ESHOO, California
GREG WALDEN, Oregon                  ELIOT L. ENGEL, New York
LEE TERRY, Nebraska                  GENE GREEN, Texas
MIKE ROGERS, Michigan                DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania             LOIS CAPPS, California
MICHAEL C. BURGESS, Texas            MICHAEL F. DOYLE, Pennsylvania
MARSHA BLACKBURN, Tennessee          JANICE D. SCHAKOWSKY, Illinois
  Vice Chairman                      JIM MATHESON, Utah
PHIL GINGREY, Georgia                G.K. BUTTERFIELD, North Carolina
STEVE SCALISE, Louisiana             JOHN BARROW, Georgia
ROBERT E. LATTA, Ohio                DORIS O. MATSUI, California
CATHY McMORRIS RODGERS, Washington   DONNA M. CHRISTENSEN, Virgin 
GREGG HARPER, Mississippi            Islands
LEONARD LANCE, New Jersey            KATHY CASTOR, Florida
BILL CASSIDY, Louisiana              JOHN P. SARBANES, Maryland
BRETT GUTHRIE, Kentucky              JERRY McNERNEY, California
PETE OLSON, Texas                    BRUCE L. BRALEY, Iowa
DAVID B. McKINLEY, West Virginia     PETER WELCH, Vermont
CORY GARDNER, Colorado               BEN RAY LUJAN, New Mexico
MIKE POMPEO, Kansas                  PAUL TONKO, New York
ADAM KINZINGER, Illinois             JOHN A. YARMUTH, Kentucky
H. MORGAN GRIFFITH, Virginia
GUS M. BILIRAKIS, Florida
BILL JOHNSON, Ohio
BILLY LONG, Missouri
RENEE L. ELLMERS, North Carolina

                                 7_____

              Subcommittee on Environment and the Economy

                         JOHN SHIMKUS, Illinois
                                 Chairman
PHIL GINGREY, Georgia                PAUL TONKO, New York
  Vice Chairman                        Ranking Member
RALPH M. HALL, Texas                 FRANK PALLONE, Jr., New Jersey
ED WHITFIELD, Kentucky               GENE GREEN, Texas
JOSEPH R. PITTS, Pennsylvania        DIANA DeGETTE, Colorado
TIM MURPHY, Pennsylvania             LOIS CAPPS, California
ROBERT E. LATTA, Ohio                JERRY McNERNEY, California
GREGG HARPER, Mississippi            JOHN D. DINGELL, Michigan
BILL CASSIDY, Louisiana              JANICE D. SCHAKOWSKY, Illinois
DAVID B. McKINLEY, West Virginia     JOHN BARROW, Georgia
GUS M. BILIRAKIS, Florida            DORIS O. MATSUI, California
BILL JOHNSON, Ohio                   HENRY A. WAXMAN, California (ex 
JOE BARTON, Texas                        officio)
FRED UPTON, Michigan (ex officio)

                                  (ii)
                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. John Shimkus, a Representative in Congress from the State of 
  Illinois, opening statement....................................     1
    Prepared statement...........................................     3
Hon. Paul Tonko, a Representative in Congress from the State of 
  New York, opening statement....................................     4
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................     6

                               Witnesses

Robert Meltz, Legislative Attorney, Congressional Research 
  Service........................................................     8
    Prepared statement...........................................    10
Jonathan H. Adler, Johan Verheij Memorial Professor of Law and 
  Director, Center for Business Law and Regulation, Case Western 
  University School of Law.......................................    26
    Prepared statement...........................................    28
Richard Revesz, Lawrence King Professor of Law and Dean Emeritus, 
  New York University School of Law..............................    48
    Prepared statement...........................................    51
Rena Steinzor, Professor, University of Maryland School of Law, 
  and President, Center for Progressive Reform...................    59
    Prepared statement...........................................    61


   CONSTITUTIONAL CONSIDERATIONS: STATE VERSUS FEDERAL ENVIRONMENTAL 
                         POLICY IMPLEMENTATION

                              ----------                              


                         FRIDAY, JULY 11, 2014

                  House of Representatives,
       Subcommittee on Environment and the Economy,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 9:16 a.m., in 
room 2123, Rayburn House Office Building, Hon. John Shimkus 
(chairman of the subcommittee) presiding.
    Members present: Representatives Shimkus, Gingrey, 
Whitfield, Murphy, Latta, Harper, McKinley, Johnson, Tonko, 
Green, DeGette, McNerney, Barrow, and Waxman (ex officio).
    Staff present: Charlotte Baker, Deputy Communications 
Director; Sean Bonyun, Communications Director; Leighton Brown, 
Press Assistant; Allison Busbee, Policy Coordinator, Energy and 
Power; Jerry Couri, Senior Environmental Policy Advisor; 
Brittany Havens, Legislative Clerk; Kirby Howard, Legislative 
Clerk; David McCarthy, Chief Counsel, Environment and the 
Economy; Tina Richards, Counsel, Environment and the Economy; 
Chris Sarley, Policy Coordinator, Environment and the Economy; 
Jessica Wilkerson, Legislative Clerk; Jeff Baran, Democratic 
Staff Director, Energy and the Environment; Jacqueline Cohen, 
Democratic Senior Counsel; Caitlin Haberman, Democratic Policy 
Analyst; and Ryan Schmit, Democratic EPA Detailee.
    Mr. Shimkus. The subcommittee will now come to order.
    The Chair recognizes myself for 5 minutes for an opening 
statement.
    Before I want to start, I want to recognize Mike Pollock, 
who is our intern from American University. He is in the School 
of Law. Because when I make my opening statement, you will know 
that I didn't write it. I am reading it. So I appreciate his 
work.

  OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    Today's hearing gives us an opportunity to discuss some 
important questions we face as lawmakers. When we create 
policies to protect human health and the environment, when 
should we defer to the States? When should policy be set at the 
national level but implemented at the State level? When should 
it be implemented at the national level?
    At first, different provisions of the U.S. Constitution 
seem to offer different answers, but our job is to reconcile 
those provisions. That harmony will not come if we take the 
easy way out and say, on the one hand, that all these decisions 
are up to the States or, on the other hand, that what the 
Federal Government determines should rule, even right down to 
the most local level, thus making the States mere area offices 
of the Federal Government.
    The Commerce Clause confers enormous power on Congress. Our 
friend, Rob Meltz, a leading constitutional scholar, will tell 
us just how sweeping it is and just how broad our options are. 
But Rob will also help us remember that there is a 10th 
Amendment to our Constitution's Bill of Rights which reads, and 
I quote, ``The powers not delegated to the United States by the 
Constitution nor prohibited by it to the States are reserved to 
the States respectively or to the people.''
    Let's not forget the Bill of Rights was the States' price 
of ratification. In fact, the States themselves created the 
Federal Government, but, in doing so, the States did not 
dissolve themselves.
    So what did the States want from a national Government that 
the Articles of Confederation did not give them? For one, they 
wanted open interstate trade or, and I quote, ``regular 
commerce.'' Their vehicle for achieving this was Congress' 
power to regulate commerce with foreign nations among the 
several States and with Indian tribes.
    During the 1930s, this commerce power was read so broadly 
by the Supreme Court that it seemed to have no bounds. In fact, 
a loaf of bread baked and consumed by a farmer using his own 
wheat was said to be interstate commerce for purposes of 
Congress' power to regulate it.
    By the late 1990s, the Supreme Court began to rediscover 
some limits on the Commerce Clause. The Lopez decision, which 
we will ask Rob Meltz to explain, seemed to focus on Congress' 
power under the law more than on its reach. That case 
established that only economic activity may have a substantial 
effect on interstate commerce to be regulated by the Commerce 
Clause.
    So when we look at environmental policy and commerce 
regulation, we see an interesting mosaic. If someone tosses 
litter out his window, the punishment is entirely between him 
and the county sheriff applying State or local law. But when 
the sheriff records the time of the offense on the citation, he 
uses a time set by the Federal Government under the Standard 
Time Act of 1918, a law our committee amended in 2005 for 
daylight savings.
    Drugs and medical devices, among many others, are regulated 
at the national level, in part because they are important but 
also because, once approved, they need to flow freely in 
interstate commerce. Consumers and the whole economy benefit 
enormously from a single market for these and other products 
that are made in one State, sold in another, and used in still 
others.
    Professor Revesz described this as capturing economies of 
scale. Mass production, which makes so many of our everyday 
goods more economical, is pretty hard to do if each State 
demands its own custom batch.
    Free trade among States leads also to free trade with 
foreign countries. When we work out international trade 
agreements that give our products, such as corn growers, access 
to foreign markets, part of the deal sometimes includes 
allowing those countries access to our markets. That access is 
hollow if States have the option of closing off trade on their 
own. As a prior witness put it, the price of admission to the 
international trade negotiations is ``one country, one voice.''
    So, in my view, where Congress has the inherent capability 
to protect health and the environment, we in Congress should 
defer to them. We in Congress must also have a rationale to 
step in where a State is not constituted to take the steps it 
needs to achieve that protection. And I believe we have a basis 
to step in where impacts are multi-State and doing so will 
facilitate trade in goods and services among States and 
internationally.
    And then there is the middle ground, where either leaving 
the job entirely to the Federal or the State Government is not 
warranted. Sometimes Congress sets national standards to be 
fair among the States but leaves implementation of those 
national standards to the States.
    How stringent such Federal standards should be and whether 
benefits should outweigh the costs are all questions for 
another hearing. For today, we are only asking when should 
Congress consider acting and who should be the regulator. At 
our next hearing on July 23rd, we invite EPA, the States, and 
others to discuss steps to modernize State and Federal 
cooperation. Today, we will focus on the constitutional 
underpinnings of those basic decisions.
    We appreciate all our witnesses appearing today and look 
forward to your testimony.
    [The prepared statement of Mr. Shimkus follows:]

                Prepared statement of Hon. John Shimkus

    Today's hearing gives us an opportunity to discuss some 
important questions we face as lawmakers. When we create 
policies to protect human health and the environment, when 
should we defer to States? When should policy be set at the 
national level but implemented at the State level? When should 
it be implemented at the national level?
    At first, different provisions of the U.S. Constitution 
seems to offer different answers. But our job is to reconcile 
those provisions.
    That harmony will not come if we take the easy way out and 
say, on the one hand, that all these decisions are up to the 
States or, on the other hand that what the Federal Government 
determines should rule, even right down to the most local 
level, thus making the States mere area offices of the Federal 
Government.
    The Commerce Clause confers enormous potential power on 
Congress. Our friend, Rob Meltz, a leading Constitutional 
scholar, will tell us just how sweeping it is and just how 
broad our options are. But Rob will also help us remember that 
there is a Tenth Amendment in our Constitution's Bill of Rights 
which reads:
    ``The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the People.''
    Let's not forget: the Bill of Rights was the States' price 
of ratification. In fact, the States themselves created the 
Federal Government, but in doing so, the States did not 
dissolve themselves.
    So what did the States want from a national Government that 
the Articles of Confederation did not give them? For one, they 
wanted open interstate trade or ``regular commerce.'' Their 
vehicle for achieving this was Congress' power ``to regulate 
commerce with foreign nations, among the several States, and 
with the Indian tribes.''
    During the 1930s this commerce power was read so broadly by 
the Supreme Court that it seemed to have no bounds. In fact, a 
loaf of bread baked and consumed by a farmer using his own 
wheat was said to be in interstate commerce for purposes of 
Congress' power to regulate it.
    But by the late 1990's the Supreme Court began to 
rediscover some limits on the Commerce Clause. The Lopez 
decision, which we'll ask Rob Meltz to explain, seemed to focus 
on Congress' purpose under the law more than on its reach. That 
case established that only economic activity may have a 
substantial effect on interstate commerce to be regulated by 
the Commerce Clause.
    So when we look at environmental policy and commerce 
regulation we see an interesting mosaic. If someone tosses 
litter out his window, the punishment is entirely between him 
and his county sheriff applying State or local law.
    But when the sheriff records the time of the offense on the 
citation he uses a time set by the Federal Government under the 
Standard Time Act of 1918--a law our Committee amended in 2005 
for daylight savings.
    Drugs and medical devices, among many other goods, are 
regulated at the national level, in part because they are 
important, but also because, once approved, they need to flow 
freely in interstate commerce. Consumers and the whole economy 
benefit enormously from a single market for these and other 
products that are made in one State, sold in another, and used 
in still others.
    Professor Revesz describes this as capturing economies of 
scale. Mass production, which makes so many of our everyday 
goods more economical, is pretty hard to do if each State 
demands its own custom batch.
    Free trade among States leads also to free trade with 
foreign countries. When we work out international trade 
agreements that give our producers, such as corn growers, 
access to foreign markets, part of the deal sometimes includes 
allowing those countries access to our markets. That access is 
hollow if States have the option of closing off trade on their 
own. As a prior witness put it, the price of admission to 
international trade negotiations is ``one country, one voice.''
    So, in my view, where States have the inherent capability 
to protect health and the environment, we in Congress should 
defer to them. We in Congress must also have a rationale to 
step in where a State is not constituted to take the steps it 
needs to achieve that protection. And I believe we have a basis 
to step in where impacts are multi-State or doing so will 
facilitate trade in goods and services among States and 
internationally.
    And then there is the middle ground where either leaving 
the job entirely to the Federal or State Government is not 
warranted: sometimes Congress sets national standards to be 
fair among the States, but leaves implementation of those 
national standards to the States.
    How stringent such Federal standards should be, and whether 
benefits should outweigh the costs, are all questions for 
another hearing. For today, we are only asking when should 
Congress consider acting and who should be the regulator?
    At our next hearing on July 23 we invite EPA, the States, 
and others to discuss steps to modernize State and Federal 
cooperation. Today, we will focus on the Constitutional 
underpinnings of those basic decisions.
    We appreciate all our witnesses appearing today and look 
forward to your testimony.

    Mr. Shimkus. With that, I yield back my time and recognize 
the gentlemen from New York, Mr. Tonko, for 5 minutes.

   OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF NEW YORK

    Mr. Tonko. Thank you, Mr. Chair, and good morning.
    Good morning to our witnesses.
    The first hearing held by our subcommittee last February 
was on the same topic that we are going to discuss today, the 
balance between Federal and State authority. As I pointed out 
at the start of that hearing, this issue has been part of our 
national debate since the first Continental Congress. I don't 
expect we are going to resolve that issue today, if ever.
    State and Federal involvement in environmental protection 
has been a part of our history for much longer than the past 70 
or 80 years. Congress established our first national park, 
Yellowstone, in 1872 to protect the unique and beautiful 
landscape and its resources.
    Federal involvement in environmental protection increased 
over the years when it became obvious to the public that 
individual State action was insufficient to protect essential 
common resources that were being severely damaged by pollution 
generated and disposed of by unregulated industrial and other 
human activities. Resources often are not contained within the 
border of a single State, especially air and water resources, 
and pollutants frequently do not respect State boundaries.
    Over the course of this Congress, our subcommittee has held 
hearings on two issues, in particular, that have involved 
questions of whether the States or the Federal Government 
should define the floor of environmental and public health 
protection for citizens: the disposal of coal ash for one, and 
the regulations of chemicals in Congress for another.
    In both cases, the current level of guaranteed Federal 
protection is very low. This is especially true in the case of 
coal-ash disposal, a practice that for all intents and purposes 
is regulated by individual States. The failures of coal-ash 
disposal facilities that communities have experienced in recent 
years and the risk to the air and water resources are a clear 
demonstration of the hazardous situation being created by 
insufficient monitoring and insufficient regulation.
    In the case of chemicals, the Federal law governing 
industrial chemicals has failed to generate basic information 
about hazards and exposure for the vast majority of chemicals 
that we are exposed to each and every day. In fact, we do not 
even have reliable information about how many chemicals are 
actually in use. Very few have been regulated or restricted 
through application of TSCA.
    In the absence of a credible Federal program and in the 
face of evidence of increased exposure and risk of chemicals, 
States have responded to their citizens' demands for action. We 
need Federal laws to set strong standards to ensure all of our 
citizens a basic level of health, safety, environmental 
quality, and opportunity.
    But that does not mean that individual States should be 
prevented from exercising their authority to act on behalf of 
and in response to the desires of their citizens. States should 
be able to go beyond Federal law and offer additional 
protections to address unique situations or to safeguard unique 
resources. And the model of Federal standards-setting with 
State-based implementation has worked well, giving States the 
flexibility to tailor requirements to their specific 
circumstances.
    Through State and Federal environmental programs, we have 
fostered a dynamic economy and a healthy and clean environment. 
We need to build on the progress we have made, and we can do 
that with a strong partnership amongst the Federal Government 
and our States.
    We have a very able and distinguished panel of witnesses, 
and I look forward to your testimony. And I want to thank all 
of you for participating in today's hearing, which will provide 
valuable direction and insight into the issues we address. 
Thank you so much.
    And, with that, Mr. Chairman, I yield back.
    Mr. Shimkus. The gentleman yields back his time.
    Does anyone on the majority side seek time?
    If not, the Chair recognizes the gentleman from California, 
the ranking member of the full committee, Mr. Waxman, for 5 
minutes.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Waxman. Thank you very much, Mr. Chairman.
    Two weeks ago, we marked a grim milestone. The House of 
Representatives took its 500th anti-environmental vote since 
the Republicans took control. With the Energy and Water 
Appropriations bill on the floor this week, the tally, I am 
sure, is now even higher.
    This hearing examines what the Constitution has to say 
about State and Federal authority to protect the environment. 
Unfortunately, House Republicans appear more interested in 
weakening existing environmental protections than in using our 
constitutional authority to ensure that all Americans, wherever 
they may live, can breathe the air, drink the water, and avoid 
exposure to toxic chemicals.
    In February of this year, a stormwater pipe under a retired 
coal-ash impoundment in North Carolina collapsed. It released 
up to 82,000 tons of coal ash and 27 million gallons of 
contaminated water. The effects of the spill were visible 
across 70 miles of the Dan River, crossing from North Carolina 
into Virginia, and affecting drinking-water sources for the 
citizens of Danville, Virginia, and Virginia Beach.
    This is just the latest coal-ash spill to pollute drinking-
water sources and damage resources across State lines. 
According to a recent estimate, the economic impacts of this 
spill could exceed $70 million. For the recreation industry 
around Danville, Virginia, the impact could even be more severe 
if the river loses its designation as a scenic river.
    There is no question that water pollution, air pollution, 
and toxic chemicals cause widespread economic harm. It is also 
clear that Congress has the authority under the Constitution 
and responsibility to address risks from pollution. Courts have 
repeatedly upheld environmental statutes as appropriate 
exercises of our commerce power.
    Over the years, Congress and States have developed and 
refined a proven model of cooperative federalism which has 
successfully reduced air and water pollution and ensured the 
public's access to safe drinking water. Under this model, 
Congress sets minimum national standards of environmental 
protection. States may take responsibility for implementing and 
enforcing these standards if their requirements are at least as 
protective as the Federal floor. EPA retains backstop 
enforcement authority, ensuring that every citizen in the 
United States receives a minimum level of protections from 
environmental risks. And States retain the authority to 
establish more protective standards and programs to meet their 
own individual circumstances.
    At a hearing in this subcommittee last year, stakeholders 
told us that protecting the environment through cooperative 
federalism is working. States are implementing over 96 percent 
of the environmental programs that can be delegated by the 
Federal Government to the States. These programs have an 
impressive track record of protecting Americans.
    Despite this record of success, the majority has continued 
to pursue proposals that would upend this proven model, 
although there is no consistency in their approach. A core 
Federal responsibility is protecting one State from pollution 
of another. Well, that makes sense; we have to deal with cross-
State boundaries, and pollution doesn't respect those 
boundaries. Yet this committee has voted over and over again to 
block EPA regulations that would do exactly this.
    EPA promulgated regulations to reduce power-plant emissions 
that pollute the air in downwind States. Well, that makes 
sense. But the House Republicans voted to block implementation 
of those standards. The States can't deal with it by themselves 
if they are subject to downwind pollution, so they have to look 
to the other State to cooperate.
    EPA issued standards to reduce mercury and other toxic air 
pollutants from power plants. That pollution crosses State 
boundaries and is a national problem. Our Republican majority 
voted to block those important public health standards, as 
well.
    This hearing should remind us again that protecting public 
health and the environment works best when both the Federal 
Government and State Governments contribute. If not, polluting 
industries will play one State off another so that every State 
is forced to reduce their pollution protection for their 
citizens for fear that they will lose the jobs and industry 
will locate elsewhere.
    Thank you, Mr. Chairman, for this opportunity to make this 
opening statement.
    Mr. Shimkus. The gentleman yields back his time, and I 
thank the gentleman.
    Now we are going to go right to our panel. I will do an 
introduction, and then I will turn to you for your opening 
statement. I will do an introduction of the whole panel.
    First of all, we have Robert Meltz. He is with the American 
Law Division of the Congressional Research Service, a service 
that we rely on a lot. And we appreciate you being here. Jon 
Adler, who is a professor of law at Case Western School of Law. 
We have Richard Revesz, who is from New York University School 
of Law. Thank you, sir. And Rena Steinzor, who is a professor 
at the University of Maryland School of Law. She has been here 
numerous times, and we thank her for coming back.
    The ranking member helped set this debate, and I appreciate 
his comments. Again, what we asked was, when should Congress 
consider acting, and who should be the regulators, the question 
we posed.
    With that, I will start with Mr. Meltz. Sir, your full 
statement is entered into the record, and you have 5 minutes.
    And hit the microphone, and then pull it close so that it 
can get to the transcriber.
    Mr. Meltz. Is it on now?
    Mr. Shimkus. Yes, but pull it close like you want to eat 
it.

STATEMENTS OF ROBERT MELTZ, LEGISLATIVE ATTORNEY, CONGRESSIONAL 
  RESEARCH SERVICE; JONATHAN H. ADLER, JOHAN VERHEIJ MEMORIAL 
  PROFESSOR OF LAW AND DIRECTOR, CENTER FOR BUSINESS LAW AND 
  REGULATION, CASE WESTERN UNIVERSITY SCHOOL OF LAW; RICHARD 
 REVESZ, LAWRENCE KING PROFESSOR OF LAW AND DEAN EMERITUS, NEW 
 YORK UNIVERSITY SCHOOL OF LAW; AND RENA STEINZOR, PROFESSOR, 
UNIVERSITY OF MARYLAND SCHOOL OF LAW, AND PRESIDENT, CENTER FOR 
                       PROGRESSIVE REFORM

                   STATEMENT OF ROBERT MELTZ

    Mr. Meltz. Mr. Chairman and members of the subcommittee, 
CRS is pleased to assist the subcommittee with its inquiry into 
the appropriate allocation of responsibilities in Federal 
environmental programs between Federal and State Governments.
    I am an attorney with the American Law Division of CRS, 
where I specialize in environmental law. I am going to 
summarize my formal statement, reviewing the constitutional 
constraints imposed on Congress by current Commerce Clause and 
10th Amendment jurisprudence in crafting environmental 
legislation.
    To cut to the chase, the Commerce Clause and the 10th 
Amendment, as currently construed by the Supreme Court, impose 
as a practical matter few significant constraints on Congress' 
legislating in the environmental area. I will start with 
Congress' power to regulate commerce among the several States, 
the basis of not only most Federal environmental laws but also 
much of the social and economic legislation enacted by 
Congress.
    Supreme Court decisions hold that Congress' commerce power 
allows it to regulate the channels and the instrumentalities of 
interstate commerce and, by far the most debated category, 
activities, even intrastate activities, that substantially 
affect interstate commerce either individually or in the 
aggregate.
    The Court has strongly suggested that only economic 
activity may be aggregated to show a substantial effect on 
interstate commerce, but what is economic is very broadly 
construed--not so broadly, however, as to have kept the Court 
from invalidating congressional enactments in 1995 and 2000, 
triggering speculation that certain Federal environmental laws 
might being on precarious constitutional footing, though in 
2005 the speculation subsided a bit when a Supreme Court 
decision stressed that even noneconomic intrastate activity can 
be regulated by Congress if failure to do so would undercut 
interstate regulation.
    Federal environmental laws, by and large, have fared well 
against Commerce Clause challenges. After the Supreme Court's 
decisions in 1995 and 2000, the vulnerabilities were suggested 
in the non-intrastate applications of several of these laws: 
the Clean Air Act, the Clean Water Act, the Safe Drinking Water 
Act, the Superfund Act, and the Endangered Species Act. Yet the 
overwhelming majority of Commerce Clause challenges to Federal 
environmental laws were rejected by the lower courts, six out 
of six in the case of the Endangered Species Act, all with cert 
denials by the Supreme Court.
    Some of these decisions arguably are hard to reconcile with 
the Supreme Court's Commerce Clause jurisprudence. To hazard a 
theory, it may be that the courts implicitly recognize the 
nationwide interconnectedness of environmental problems and the 
consequent need for broad Federal involvement. Or perhaps the 
courts simply are not ready to chip away at Federal 
environmental laws on the chance it would open to Commerce 
Clause attack other areas of Federal law, such as the civil 
rights laws and criminal laws.
    Turning to the 10th Amendment, that amendment says that the 
powers not delegated to the Federal Government are reserved to 
the States or to the people. During the same period when the 
Court was setting out Commerce Clause limits on Federal power, 
it came to see in the 10th Amendment a bulwark of State 
sovereignty. Supreme Court decisions during this time, the 
1990s, held that Congress can compel actions of State 
legislatures or actions of State executive branch officials in 
their sovereign capacity.
    At the same time, the Supreme Court has been explicit that 
Congress may constitutionally encourage, though not compel, 
States to participate in Federal environmental programs. 
Congress may attach conditions on States receiving Federal 
money, with some constraints. Congress may offer States a 
choice between regulating according to Federal standards or 
having State law preempted by Federal regulation or having a 
Federal plan imposed, as by EPA.
    Congress also may authorize sanctions triggered by State 
inaction but applying solely to private activity, such as the 
emission offset sanction in the Clean Air Act. And the 10th 
Amendment is not implicated when the State itself engages in an 
activity that Congress legitimately may regulate, as when a 
county operates a solid-waste landfill. As with the Commerce 
Clause, 10th Amendment challenges to Federal environmental laws 
have rarely succeeded.
    So, in sum, Federal environmental programs largely have 
withstood both Commerce Clause and 10th Amendment challenge. 
And, barring a shift in the jurisprudence, the key 
considerations in how to divide Federal and State 
responsibilities in a Federal environmental program are likely 
to fall in the policy realm rather than the constitutional one.
    Thank you for the opportunity to testify, and I look 
forward to your questions.
    [The prepared statement of Mr. Meltz follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] 
    
    Mr. Shimkus. Thank you, sir.
    The Chair now turns to Mr. Adler. Sir, you are recognized 
for 5 minutes.

                 STATEMENT OF JONATHAN H. ADLER

    Mr. Adler. Thank you, Mr. Chairman and members of this 
committee. I appreciate the opportunity to address the 
constitutional constraints on environmental regulation, a 
subject which I have studied now for close to 2 decades.
    It is a fundamental principle of our constitutional order 
that the Federal Government is one of limited and enumerated 
powers, and those powers not delegated to the Federal 
Government are reserved to the States and to the people.
    All Federal laws, no matter their value or purpose, must be 
enacted pursuant to the Federal Government's enumerated powers 
and may not transgress other constitutional constraints. This 
is true whether we are talking about national security, health 
care, or environmental protection.
    While Federal power is broad--and it certainly is, 
especially as interpreted by the Court's precedents--it is not 
infinite. The Supreme Court has made clear, including in very 
recent cases such as NFIB v. Sebelius and in the unanimous 
judgment this spring in Bond v. United States, that it will 
enforce limits on Federal power, it will invalidate laws that 
exceed those constitutional limits, and it will also construe 
statutes narrowly if that is necessary to avoid difficult 
constitutional questions--something the Supreme Court has done 
twice with the Clean Water Act when regulations reaching 
wetlands and intrastate waters pushed the bounds of Federal 
authority to regulate commerce among the States.
    Several environmental statutes and regulations, both on the 
books and proposed, raise serious constitutional questions that 
courts will have to address in the wake of decisions like NFIB, 
and these are also questions that Congress should consider. 
Because whether a statute or a regulation is constitutional is 
not solely a question for the courts; it is also a question for 
the legislative branch and something the legislative branch 
should consider when evaluating proposals for legislation.
    Now, constitutional limits on Federal power need not come 
at the expense of environmental protection. The division of 
authority between the Federal and State Governments counsels 
that Congress think careful about the nature and scope of 
Federal environmental regulation. Fiscal constraints and the 
inherent limits of centralized regulatory structures reinforce 
the wisdom of focusing Federal efforts on those areas where the 
Federal Government may do the most good.
    The EPA cannot and should not try to address every 
environmental problem or concern that this Nation faces. It has 
neither the time nor the resources to do so. The Federal 
Government should instead concentrate its efforts in those 
areas where the Federal Government has a comparative advantage 
or where the separate States are unlikely to be able to address 
environmental concerns adequately.
    This is true in the case of interstate spillovers. This is 
true in cases where there are serious economies of scale in 
Federal interventions. It is not true in the context of 
localized environmental problems that have relatively localized 
causes and localized effects. And if one looks at the U.S. 
Code, that describes much of Federal environmental regulation.
    When it comes to developing and enforcing environmental 
standards for localized environmental concerns, the case for 
Federal intervention is comparatively weak. And if we want the 
Federal Government to do more to address things like interstate 
spillovers where there are economies of scale, we have to think 
seriously about what we might take off the EPA's plate so that 
it has the time and the resources to address these new and 
emerging problems.
    And it is not coincidental that the Constitution constrains 
Federal efforts to reach some localized environmental concerns. 
There are some environmental problems that are very real but 
that do not contain the necessary connection to commerce or to 
other nexuses of Federal power to justify the exercise of 
Federal regulatory authority.
    Again, however, constitutional constraints need not 
compromise environmental protection any more than 
constitutional constraints compromise our Nation's ability and 
efforts to protect our national security or advance other 
important goals.
    Insofar as the Constitution encourages policymakers to 
think carefully about the comparative strengths and weaknesses 
of Federal intervention, it may actually enhance this Nation's 
system of environmental protection, as it helps ensure that 
Federal resources are focused and targeted in those areas where 
Federal intervention can do the most good.
    Thank you again for your invitation today, and I look 
forward to any questions you might have.
    [The prepared statement of Mr. Adler follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
           
    Mr. Shimkus. Thank you.
    And the Chair now recognizes Mr. Revesz for 5 minutes.

                  STATEMENT OF RICHARD REVESZ

    Mr. Revesz. Thank you, Mr. Chairman and members of the 
subcommittee. I am Richard Revesz from the New York University 
School of Law. I also serve as the director of the American Law 
Institute.
    I have written extensively in the area of federalism and 
environmental regulation, mostly in the matter of the policy 
domain, when should Congress act when it has the power to do 
so. I have not written as extensively in the constitutional 
domain but generally share the views of Mr. Meltz that the 
constitutional limits, while they definitely exist, leave a 
great scope of--a great domain for action from Congress. So 
many of the important questions are questions of when Congress 
should decide to exercise that authority, rather than does 
Congress actually have that authority.
    Mr. Shimkus. Excuse me. Could you make sure your mike is on 
and that it is pulled close to you?
    Mr. Revesz. I am sorry.
    Mr. Shimkus. That is OK. We have some old guys up here, and 
I could hear you fine, but----
    Mr. Revesz. I will focus on three matters in this 
testimony.
    First, the presence of interstate externalities provides 
the most compelling argument for Federal regulation. A State 
that sends pollution to another State obtains the labor and 
fiscal benefits of the economic activity that generates that 
pollution but does not suffer the full cost of the activity 
because the adverse health and environmental consequences are 
suffered by other States. As a result, a suboptimally large 
amount of pollution crosses State lines.
    But the fact that some form of Federal regulation is 
necessary to properly control interstate externalities does not 
mean that any type of Federal regulation is well-suited for the 
task. The Clean Air Act provides a compelling example of this 
problem. Even though it has been in effect since 1970, we still 
have not properly succeeded at controlling interstate 
pollution.
    Let me give you two bookends. The first significant 
litigated case in this area was Air Pollution Control District 
of Jefferson County v. EPA and was decided by the Court of 
Appeals for the Sixth Circuit in 1984. Interestingly, at that 
time, Mitch McConnell, the current Senate minority leader, was 
the judge/executive for Jefferson County, Kentucky, which 
brought this action to try to compel Indiana to reduce its 
interstate externalities.
    Kentucky actually controlled its local power plant very 
stringently, and that power plant had at the time spent $138 
million in pollution control, which would be more than $300 
million in today's dollars. But Jefferson County, despite 
having done that, was not able to obtain the benefits of the 
regulation because prevailing winds from Indiana deposited in 
Jefferson County pollution from an Indiana plant that was 
essentially uncontrolled. The Kentucky plant emitted 1.2 pounds 
of sulphur dioxide per million BTU of heat input, and the 
Indiana plant emitted 6 pounds--five times as much.
    Jefferson County was actually unsuccessful in that case in 
its effort to compel the U.S. Environmental Protection Agency 
to order the reduction in the Indiana emissions. And, in fact, 
it wasn't until more than 30 years later, until this past 
April, when the U.S. Supreme Court, in EPA v. EME Homer City 
Generation, held that under the good-neighbor provision of the 
Clean Air Act the pollution control burden to upwind and 
downwind States could be allocated in a way that minimized the 
overall cost of meeting the Federal ambient standards.
    This cost-minimization formula strikes me as eminently 
rational, and the court decided this on a six-two vote. If this 
rule had been in effect in 1984, then-Judge/Executive Mitch 
McConnell's citizens would have gotten the Federal redress that 
they had sought and that they actually deserved.
    My second point: The issue of interstate externalities is 
now being raised by a more recent environmental problem arising 
from hydraulic fracturing, or fracking, which is a technique 
used to extract oil and natural gas from shale.
    Some of the environmental ills from fracking, such as 
increased seismic activity and groundwater contamination, are 
localized. But at least one significant consequence of 
fracking, the emission of fugitive methane, can wreak harm far 
from the wellhead. Fugitive methane's interstate and, indeed, 
international impacts make it particularly well-suited for 
Federal regulation.
    Methane, as you know, is a potent greenhouse gas with an 
estimated global-warming potential 21 to 25 times greater than 
that of carbon dioxide. Natural gas itself is composed of more 
than 80 percent methane, and, during the production and 
distribution processes, some portion of methane leaks or is 
vented into the atmosphere. While fugitive methane emissions 
can result from all drilling techniques, some studies suggest 
that fracking is associated with significantly higher leakage 
rates.
    Like carbon dioxide, methane emissions become well mixed in 
the upper atmosphere, making their harmful effects global 
rather than local.
    The U.S. Environmental Protection Agency recently began the 
process of regulating greenhouse gas emissions associated with 
the ultimate combustion of natural gas by proposing performance 
standards for new and existing power plants. Those standards, 
however, will do nothing to reduce pollution emitted at earlier 
stages in the gas' life cycle, including extraction, 
processing, storage, and delivery. Such upstream emissions can 
be quite significant, accounting for 20 to 30 percent of the 
natural gas life cycle emissions.
    My last point refers to a related question: When, if ever, 
should the Federal Government preempt more stringent State 
standards?
    So the most compelling argument for doing that is in the 
case of product standards where there are products that exhibit 
significant economies of scale in production. If these products 
were subjected to inconsistent State standards, those economies 
of scale would be lost.
    And the most compelling example of this case are 
automobiles. And, in fact, for the most part, we do have 
uniform auto standards. In fact, we have two in the country; we 
have the Federal standards, and we have the California 
standards, and States can opt for one or the other but can't 
choose anything in between.
    There are other products that exhibit significant economies 
of scale in production, but not all products do. And where 
products don't exhibit those economies of scale, the argument 
for Federal preemption of more stringent State standards is 
much weaker.
    The argument for Federal preemption of more stringent State 
standards is even weaker in the case of----
    Mr. Shimkus. We are going to have to get you to wrap up.
    Mr. Revesz. Yes, I----
    Mr. Shimkus. I know you are very close.
    Mr. Revesz. I am done, basically.
    In the case of process standards, because inconsistent 
process standards do not impede the proper trading of products 
in a national market.
    And, with that, my summary is done, and I am happy to at 
some point take your questions.
    [The prepared statement of Mr. Revesz follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
           
    Mr. Shimkus. Thank you, sir.
    Now we will turn to Rena Steinzor, a professor from the 
University of Maryland.
    Welcome back, and you are recognized for 5 minutes.

                   STATEMENT OF RENA STEINZOR

    Ms. Steinzor. Mr. Chairman, Ranking Member Tonko, and 
members of the subcommittee, I appreciate the opportunity to 
testify today on cooperative federalism, which is the term used 
to describe----
    Mr. Shimkus. Can you check your mike also or pull it 
closer?
    Ms. Steinzor [continuing]. The constitutional and the 
political policy and legal relationship between the Federal and 
State Governments with respect to environmental policies and 
law.
    As I understand the situation, the subcommittee's 
leadership called this hearing in part to explore the 
contradiction between the notion that legislation to 
reauthorize the Toxic Substances Control Act should preempt any 
State authority to regulate chemical products with the notion 
that the Federal Government should depend on the States to 
regulate coal ash and has no role to play in protecting the 
public from such threats.
    These positions are a dichotomy if there ever was one. The 
contradictory ideas that the Federal Government must dominate 
the field in one area but that State Government should be 
exclusively in control in another seems irreconcilable as a 
matter of principle.
    Of course, as a practical matter, these irreconcilable 
positions have consistent pragmatic outcomes: They help big 
business. The chemical industry feels much more confident about 
its ability to browbeat the EPA into quiescence under the weak 
provisions of the TSCA legislation under discussion so long as 
proactive States like California are knocked out of the 
equation. The electric power industry is much happier 
submitting to State regulators, who, as the recent spill in 
North Carolina clearly illustrates, have done almost nothing to 
control the severe hazards of improper coal-ash disposal. Or, 
in other words, States should prevail as long as they aren't 
doing much to gore the ox of big business.
    This debate has been going on in one iteration or another 
for decades. Congress has grappled with it. The Supreme Court 
has grappled with it. The States have participated in the 
debate, as has the executive branch. And out of all this 
intense debate have come two fundamental principles well-
recognized by mainstream constitutional scholars:
    One, the wide range of Federal programs dealing with 
health, safety, and the environment are grounded appropriately 
in the Commerce Clause. While the Supreme Court has imposed 
some limits on Federal authority, they do not apply to the 
structure of Federal environmental law.
    Two, a coherent set of eminently reasonable principles 
defines the cooperative partnership that prevails in the 
health, safety, and environmental areas.
    So what are those principles? As everyone has said, 
pollution does not stop at State lines, and, in many cases, 
strong Federal laws are the only way to control so-called 
transboundary pollution. My State, Maryland, suffers 
tremendously from transported pollution from Ohio. Coal-fired 
power plants is just one example. We actually send a plane up 
every time those emissions increase because the State agency is 
so anxious to demonstrate that it can't control this pollution.
    But there are other principles. A second one is that 
uniform national standards crafted by the Nation's best and 
brightest technical experts are efficient, avoiding the need to 
reinvent the wheel 50 times.
    A third and very important one is that all citizens should 
receive equal protection under the law. That is, everyone 
should be able to expect a minimal set of effective safeguards 
no matter what State they happen to live in.
    Businesses should compete on a level playing field. If they 
operate in States that choose strong protections, they should 
not be undercut by businesses operating in States that choose 
weak protections. And States should avoid a race to the bottom 
in competing for new industry.
    It is easy to write a law, as you know, and much harder to 
make sure it is implemented and enforced fairly and 
aggressively throughout our vast country. Governments at all 
levels struggle to be effective and efficient and must remain 
accountable to their citizens. In areas as important as 
protecting public health and the environment, everyone, no 
matter where they live, deserves equal protection. Making 
States responsible for delivering on this crucial goal is a key 
part of EPA's mission.
    Thank you.
    [The prepared statement of Ms. Steinzor follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
            
    Mr. Shimkus. Thank you, Ms. Steinzor.
    I am going to start just by making a statement. You made 
some assumptions as to why or why we didn't call this hearing, 
but I don't remember you ever asking me, the chairman of the 
subcommittee, why I called it. So just in future times you come 
before us, if you want to know why, come ask me. Don't make an 
assumption and weave a story that may or may not be true.
    Mr. Meltz, for nonlawyers like me, could you please explain 
the difference between the Supremacy Clause and the Commerce 
Clause and how preemption in Federal environmental law is 
constitutionally based?
    Mr. Meltz. Well, the Supremacy Clause in Article 6 says 
that the Federal law is the supreme law of the land, so that 
when there is a conflict, either express or implied or in fact, 
the non-Federal law has to give way to the Federal 
prescription.
    Preemption considerations arise in just about every Federal 
environmental law I have ever encountered. In fact, I have a 
CRS report compiling all the preemption provisions in all the 
environmental statutes, and they run the gamut from total 
preemption--a State cannot act, and there is no waiver even--
all the way to the other extreme, where the State has complete 
freedom to do what it wishes, whether or not the Federal 
Government acts.
    So, depending on the circumstances, Congress has seen the 
full gamut of possibilities appropriate.
    Mr. Shimkus. Hence the dilemma and why we have you here 
today, to help us try to figure out that.
    Professor Adler, how is it that in some ways an historical 
accident--that is, leadership in environmental policy--was 
supplanted by Federal regulation?
    Mr. Adler. That is a long subject, and----
    Mr. Shimkus. Well, don't be too long.
    Mr. Adler. Yes. And given that I live in Cleveland, it is a 
somewhat of a, I guess, a personal subject given that an 
infamous fire on the Cuyahoga River is often credited with 
helping to drive the enactment of many Federal environmental 
statutes.
    And just to use as an example, that event in June of 1969 
was seen as evidence that most measures of environmental 
quality were getting much worse, that State and local 
governments were not acting, and that, therefore, Federal 
intervention was necessary.
    But when one looks at the historical record, that, in fact, 
isn't true. If one just looks at the case of river fires, river 
fires on the Cuyahoga River, in Michigan and Pennsylvania and 
Maryland, all throughout the country, had actually at one point 
been common throughout the late 19th and early 20th century. 
Rivers used for industrial purposes were often dumping grounds 
for various flammable and other wastes. And it was a problem 
that was easily identified and one that State and local 
governments readily addressed.
    If one looks at water pollution more generally, one sees 
that States in the 1960s were becoming very active in enacting 
water pollution control statutes. We see a similar pattern in 
air. California, in particular, was quite aggressive. And 
measures of things like ambient air quality for the pollutants 
with the greatest health effects that were understood at the 
time were actually declining before Federal environmental 
statutes were enacted.
    So whether we think these Federal environmental statutes 
are good or bad as a matter of policy, the general story that 
we tell, that they were necessary to stem a precipitous decline 
in environmental quality that was occurring in the late 20th 
century, just doesn't square with the actual historical record.
    Mr. Shimkus. So is it safe to say that it is under your 
opinion that the environmental policy might be improved if 
States regained a more historic role?
    Mr. Adler. Sure. I think that if both State Governments and 
the Federal Government are able to focus on those areas where 
they have comparative advantage, we would improve the overall 
levels of environmental protection. It would be both more 
efficient and more effective.
    In areas like interstate spillovers, as has already been 
discussed, the downwind State can't do anything about an upwind 
State's pollution. And as we look at the history of things like 
the Clean Air Act, those sorts of concerns have been the focus 
of a tiny fraction of EPA's time and effort and a tiny fraction 
of what is actually in the U.S. Code.
    And if we stood back and actually tried to rationalize 
where is Federal intervention truly necessary and where can 
State and local governments take the lead, I think we would 
have a more rational, more efficient, less costly, and more 
effective approach to environmental protection.
    Mr. Shimkus. Thank you.
    Professor Revesz, you noted at the end of your statement 
about the national fuel efficiency standard for cars, 
California differently from other States, but you did not seem 
to defend the decision with the policy on constitutional 
rationale. Do you have one?
    Mr. Revesz. The decision for California to have different 
standards than the Federal standards?
    Mr. Shimkus. Yes, sir.
    Mr. Revesz. It is a historical accident. I mean, clearly, 
Congress has the authority to allow States to do that. I don't 
think there is any serious constitutional argument that somehow 
or other once the Federal Government acts it needs to preempt 
more stringent State standards.
    The reason the California standards are more stringent is 
because in 1970, when the Clean Air Act was enacted, California 
already had State standards for automobiles, and Congress 
decided not to preempt those standards and did it as a matter 
of policy. And it was actually not----
    Mr. Shimkus. Yes, let me just jump in. Do you think it is 
fair for Congress to discriminate among States in its 
regulation of trade in the same articles?
    Mr. Revesz. Well, as a practical matter, Congress gave 
other States the choice to choose the California standards or 
the Federal standards. So, basically, every State could do 
something. It is true that they couldn't pick other standards.
    But I think Congress had good reason for doing that, and I 
think it is definitely constitutional for Congress to do it. I 
don't think there is a serious constitutional argument that 
would stand in the way of Congress making those distinctions if 
it thought that they were good as a matter of policy. They 
would need to think they are good as a matter of policy for 
this to actually be a good idea.
    I think in that particular case, given the history of that 
provision, it made sense for Congress in 1970 to do what it 
did. And it was not a controversial issue then; there was 
strong bipartisan support for that provision.
    Mr. Shimkus. Great. Thank you.
    The Chair now recognizes Mr. Tonko for 5 minutes.
    Mr. Tonko. Thank you, Mr. Chair.
    On many issues within this subcommittee's jurisdiction, the 
States have led the way. When risks are not adequately 
addressed at the Federal level, State protections are 
essential. My home State of New York has taken significant 
steps to protect its citizens and its resources from DDT, MTBE, 
flame retardants, risks posed by hydraulic fracturing, or 
fracking.
    I served in the New York State Assembly for some 25 years, 
so I have a strong appreciation for the work of State 
Governments to protect the environment. But there is also an 
important role for the Federal Government in environmental 
protection, ensuring a minimum level of protection for all 
citizens. A cooperative approach, where the Federal Government 
sets a floor and States remain free to set more stringent 
standards, has proven effective and successful.
    Ms. Steinzor, can you briefly describe the principles of 
cooperative federalism in environmental law, please?
    Ms. Steinzor. Yes.
    Environmental law has set up a system where the States can 
apply to be delegated to have authority to implement the law. 
As was mentioned earlier, 96 percent of the environmental 
programs covered by these laws have been delegated to the 
States.
    So EPA sets the Federal standards by which we operate, and 
then the States implement the law. Most of these laws say the 
States can enact more stringent provisions if they want to. And 
the States also receive financial support for implementing 
their programs.
    Because the States are volunteering to do this, there are 
no constitutional impediments. The main impediment, 
constitutionally, is that the Federal Government is not allowed 
to commandeer a State Government's resources. And we saw that 
in the New York v. United States case that I mentioned in my 
written testimony.
    Mr. Tonko. Uh-huh.
    Ms. Steinzor. So what we have is a situation where the 
States and the Federal Government have gotten married, and, 
like most marriages, there are points of friction and 
differences. I am not going to pretend that these partnerships 
are always happy, especially when there is money lacking. And I 
think that is a problem at both the Federal- and the State-
level resources.
    Mr. Tonko. Thank you.
    Have recent proposals from this committee comported with 
those principles?
    Ms. Steinzor. I actually do not think that the effort to 
preempt all State law under the Toxic Substances Control Act is 
consistent with those principles. The Toxic Substances Control 
Act is implemented primarily by EPA, but States are allowed to 
do more stringent laws, as you just mentioned.
    And the States resent become being preempted precisely 
because of what Professor Adler said, which is that they want 
to make sure that they are not following a one-size-fits-all, 
they want to tailor the requirements, and so they home in on 
problems that are specific to their State and take whatever 
action they think appropriate.
    And you have a letter from attorneys general in several 
States that is attached to my written testimony that explains 
these principles.
    Mr. Tonko. Uh-huh.
    Well, I was particularly concerned by the preemption 
provisions in the majority's draft bill to amend TSCA, as you 
focused on that issue. The draft bill could have had widespread 
impacts on State laws, including laws on fracking. More than 20 
States have new enacted laws or regulations requiring some 
level of public disclosure of the chemical contents of 
hydraulic fracturing fluids. Other States have successfully 
imposed requirements for groundwater testing and restrictions 
on disposal of flow-back water and even prohibitions on the use 
of certain chemicals.
    Ms. Steinzor, does the Commerce Clause require that 
preemption?
    Ms. Steinzor. Absolutely not.
    Mr. Tonko. Is there any constitutional provision that 
necessitates that preemption?
    Ms. Steinzor. Absolutely not.
    Mr. Tonko. Do you have concerns about the effects of broad 
preemption in TSCA reform on State fracking laws and other 
environmental protections?
    Ms. Steinzor. Yes, I do. I think that it would be extremely 
unwise to stifle the States in this way and that actually 
preempting them in such a harsh manner contradicts all the 
other discussion about letting them have a greater role in 
environmental protection. Right now, we have a cooperative 
partnership. This would make the partnership completely one-
sided and kick them out of the field.
    And fracking is just an example of an emerging problem 
where they have been able--as we have called them in the past, 
laboratories of democracy--they have been able to step forward 
and be creative and lead the way for the Federal Government.
    Mr. Tonko. Thank you very much.
    I yield back.
    Mr. Shimkus. The gentleman yields back his time.
    For the sake of keeping peace on my side, the Chair is to 
recognize Mr. Whitfield, but I am going to ask unanimous 
consent that the gentleman from West Virginia go out of order 
for his 5 minutes. Is there objection?
    OK. The Chair recognizes the gentleman from Kentucky.
    Mr. Whitfield. You all are so nice. Thank you very much.
    Well, I would like to thank the panel for being here today.
    And I am going to approach this a little differently. As 
you know, President Obama has been under a lot of criticism 
lately of deciding which laws he will try to prosecute and 
which laws he will not prosecute. And, as you know, the House 
of Representatives now is considering a lawsuit, but because of 
the standing issue, it is very difficult to bring those 
lawsuits on the behalf of Congress as an institution.
    But what made me think a little bit about this was Ms. 
Steinzor, in her opening statement, talked about the 
unreconcilable positions that Congress is in right now as it 
approaches reauthorization of TSCA, doing one thing, and 
addressing the coal-ash-regulation issue by doing another 
thing. And she said that the only--to read her language here, 
``They have consistent pragmatic outcomes. These are 
unreconcilable positions, and the only outcome is that they 
help big business.'' So the assumption here is that the 
Republican Congress is doing this because it helps big 
business.
    Well, it raised an issue with me, in that she is talking 
about two laws here, that we have not reauthorized TSCA yet, 
and we have not been able to pass legislation the way we would 
like to on coal ash yet by the Congress.
    But the Migratory Bird Act, for example, is a Federal law, 
and there is a Federal law that protects golden eagles and bald 
eagles. And yet this administration, with the spill in the Gulf 
in the latter part of the Bush administration, the Federal 
Government instituted a fine of $100 million against British 
Petroleum for killing migratory birds in that spill. And yet 
this administration has granted an exemption from the Migratory 
Bird Act and the Golden and Bald Eagle Protection Act to 
windmills.
    So it appears that this administration, rather than just 
being in favor of big business in general, it is determined 
upon whether or not they like the big business. And, for 
example, Google is a large company that is taking advantage of 
some Federal tax codes to invest in the wind industry.
    And so, for this administration to basically say we are not 
going to enforce, we are going to grant exemptions to certain 
big businesses from the Migratory Bird Act and the Golden and 
Bald Eagle Protection Act--I would ask if any of you would like 
to make a comment on that, how this administration has--we have 
two Federal laws, and this administration has affirmatively 
said we are going to grant exemptions from these Federal laws 
for certain industries that we agree with what they are doing.
    You don't have to comment.
    Mr. Shimkus. You can offer to answer it, or you can pass.
    Mr. Adler. I will just say briefly that, as a general 
matter, if the executive branch believes that certain 
industries or activities should be exempt from Federal 
regulation, as it is currently written, they should either, if 
it is legal, redraft the existing regulations and repromulgate 
them or they should ask Congress to amend the law, and that 
disparate application of existing laws and regulations to 
different industries based on their political or other 
characteristics is not the sort of thing any executive branch 
should engage in.
    Mr. Shimkus. The gentleman from Kentucky?
    Mr. Whitfield. I yield back.
    Mr. Shimkus. The gentleman yields back the time.
    The Chair now recognizes the gentleman from Texas, Mr. 
Green, for 5 minutes.
    Mr. Green. Thank you, Mr. Chairman, for holding the hearing 
today on this important issue.
    I would like to also thank our distinguished panelists for 
joining us this morning.
    States play an essential role in environmental regulation, 
creating specific requirements to reflect the reality of 
circumstances in each State. But there is an important role for 
the Federal Government as a partner.
    Like my colleague from New York, I served 20 years in the 
State legislature in Texas and am familiar with our 
relationship with EPA and TCEQ. I used to joke, it must be in 
Texas' DNA to complain about the EPA literally from my first 
term in 1973. But this issue, it has been cooperative.
    In fact, one of my frustrations 2 years ago, that the State 
of Texas decided not to issue carbon-based permits because of 
politics, and so we ended up having them issued through EPA, 
which delayed those permits months, if not years. We are 
working through that backlog. The most recent legislative 
session corrected that. And so now our Texas Environmental 
Quality Commission is actually doing what they should be doing, 
because it is a cooperative basis.
    Mr. Meltz, do you agree that, generally, environmental 
regulation is done in a partnership with States and the Federal 
Government?
    Mr. Meltz. I agree that that has been the pattern of 
Federal enactments, and----
    Mr. Green. OK. Yes, generally, EPA sets some standards, and 
the State then negotiates with the EPA on how they can reach 
those standards.
    Mr. Meltz. With many of the statutes, not all, yes.
    Mr. Green. Is there anything in the Constitution or caselaw 
that says regulation can't be done that way, as a partnership?
    Mr. Meltz. Nothing in the Constitution, no.
    Mr. Green. OK.
    I would like to turn a minute to the Superfund statute, 
which has played an important role in our district in cleaning 
up the San Jacinto Waste Pits. Our office has worked with both 
the State of Texas and Harris County and EPA to get that site 
listed on the national priority list. And, most recently, we 
sent a letter to EPA calling for more environmental protective 
remediation to be taken at the site. This is a clear example of 
local and Federal officials working together to protect a local 
community and ensure that taxpayers don't bear that cleanup 
cost.
    Mr. Meltz, in your testimony, you mentioned that challenges 
have been brought alleging that Superfund and other 
environmental statutes were not authorized by the Commerce 
Clause. Is that correct?
    Mr. Meltz. Yes. That has been--yes. Several statutes.
    Mr. Green. OK. And courts have found these statutes, 
including Superfund, are constitutional, correct?
    Mr. Meltz. Yes. The one exception has been the challenges 
to the Corps and EPA, expansive definition of waters of the 
United States under the Clean Water Act to include isolated 
waters and remote adjacent wetlands, yes.
    Mr. Green. OK.
    You know, again, my experience, both as a State legislator 
and in Congress, when there was a need for a Superfund site, I 
was actually first approached by the State of Texas. And I know 
there were some issues a few months ago in Congress about, you 
know, the States not being a part of it. Believe me, we have a 
dioxin facility that was there before we had an EPA. And our 
States are typically the ones that are more proactive, at least 
in Texas.
    Now turning to Ms. Steinzor, do you agree that the 
constitutional footing of the Superfund is strong?
    Ms. Steinzor. The--I am sorry, sir.
    Mr. Green. The constitutional footing of the Superfund----
    Ms. Steinzor. Yes.
    Mr. Green [continuing]. Is strong.
    Ms. Steinzor. I do agree to that.
    Mr. Green. OK. I have a few questions for Mr. Revesz.
    Mr. Revesz, in your testimony, you agreed that it is 
prudent policy of the Federal Government to preempt State 
regulation on goods that exhibit significant economies of scale 
and production, such as cars and pesticides.
    Mr. Revesz. That is right.
    Mr. Green. OK. Do you believe that industrial chemicals 
such as those that are regulated under the Toxic Substance 
Control Act also exhibit significant economies of scale and 
production?
    Mr. Revesz. It is an empirical question. Many probably 
don't. Some might.
    And I think to justify preemption and to display State 
autonomy, to display the State's ability to protect their 
citizens at a level that is more stringent than what the 
Federal Government can do nationwide is a big decision and 
should only be done if the empirical evidence is very 
compelling.
    I believe, in the case of cars, it is quite compelling, and 
Congress has acted accordingly since 1970. I don't think it is 
compelling in the case of every product.
    I don't think it is compelling in the case of every product 
that is regulated under the Toxic Substance Control Act. So I 
don't think that across-the-board preemptions without empirical 
justification would be justified.
    Mr. Green. Well, do you believe that industrial chemicals 
such as under the Toxic Control Act--would you agree that the 
argument for Federal preemption in a State regulation is 
strongest when its Federal standards are regulating the 
consequences of these products themselves?
    Mr. Revesz. Well, I think we are talking about a situation 
where there is Federal regulation--Federal substantive 
regulation and where the States are trying to regulate the same 
product in a more stringent way.
    Clearly, less stringent State regulations would be 
preempted. So if the States are trying to regulate the same 
product in a more stringent way, the propriety of Federal 
preemption would depend on the strength of these economies of 
scale.
    And it is--as a result, it is not a question that can 
really be answered across the board. It would have to be 
examined, basically, industry by industry or compound by 
compound.
    Mr. Green. Mr. Chairman, I appreciate your patience. 
Although, if we are going to do cars, then why shouldn't we do 
bleaches and other things that have some national standard?
    I yield back.
    Mr. Shimkus. The gentleman yields back his time.
    The Chair now recognizes the gentleman from Ohio, Mr. 
Latta, for 5 minutes.
    Does the gentleman from Ohio want to go?
    Mr. Latta. Mr. Chairman, I thought you said you were 
recognizing the----
    Mr. Shimkus. No. Let's go. We are running out of time.
    Mr. Latta. Thank you very much, Mr. Chairman.
    Professor Adler, if I could start the question with you.
    In your testimony, you discussed a proposed policy of 
ecological forbearance under which States could petition 
Federal agencies for waivers from Federal requirements where 
there are no compelling reasons to enforce the Federal rule.
    Can you think of a current example where this would be 
applicable in the State of Ohio or elsewhere?
    Mr. Adler. Well, I think there are lots of areas where 
State regulators have complained that they are forced, as part 
of the existing regulatory structure, to devote time and 
resources to meeting standards or fulfilling requirements that 
aren't of particular importance in that State.
    One of the most obvious areas where this occurs is under 
the Safe Drinking Water Act where you have requirements to test 
for certain substances or to bring levels of certain 
contaminants below Federally approved levels. That may or may 
not be the greatest concern in particular local areas.
    And sometimes this has led to some States even challenging 
the listing of such substances. The State of Nebraska, for 
example, challenged the tightening of Federal standards for 
arsenic, arguing both that this was not a serious health 
concern for people in Nebraska, but, secondly, insofar as this 
would increase the costs of providing water through regulated 
water systems, this would drive many consumers, particularly 
those in lower incomes, to opt out of using water systems and 
use unregulated well water, which in many cases would actually 
be more risk--more dangerous to public health.
    Nebraska, therefore, sued, arguing--and it failed in its 
lawsuit, but I think that is an example of where States will 
sometimes have very good reasons for wanting to devote their 
resources to a different set of environmental priorities than 
what is specified under Federal law.
    And it would be good if there is a mechanism whereby States 
could seek relief from Federal requirements so that they may 
devote their resources in ways--or to problems that are of 
greater concern to their citizens and are in alignment with 
what the demands of local citizens are.
    We don't now really have a mechanism that is very effective 
at doing that. And so, in my testimony, I suggest an idea that 
has also been suggested by Professor Farber at the University 
of California at Berkeley of one way of giving States the 
opportunity for that kind of flexibility.
    Mr. Latta. Let me follow up.
    Also, is there empirical evidence to support the assertion 
that leaving environmental regulation to the States will 
precipitate a race to the bottom?
    Mr. Adler. No. There actually really isn't such evidence. 
There is one study that relies upon survey data that shows that 
State regulators are responsive to competitive concerns, but 
that is not sufficient to show there is race to the bottom.
    Professor Revesz has written what is probably the seminal 
article on the theoretical arguments related to race to the 
bottom, I think showing quite compellingly that, as an 
analytical matter, the ``race to the bottom'' theory rests on a 
lot of a assumptions that are hard to justify.
    As an empirical matter, I have done work in the area of 
wetlands, showing that the pattern of State wetland regulation 
prior to Federal regulation is the exact opposite of what the 
``race to the bottom theory'' would predict.
    There is a significant amount of literature in both the 
economic literature and the political science literature 
looking empirically at patterns of State regulation, again 
showing that the patterns of State regulation are not 
consistent with the idea of a race to the bottom.
    And, in fact, there is some scholarship that suggests that 
States, in fact, learn from each other and that, when one 
State, whether it is California or New York or what have you, 
regulates more stringently or to enhance environmental 
protection, that neighboring States become more likely to 
follow suit and more likely to increase their levels of 
environmental protection as well as they learn from the 
positive experience of their neighbors.
    And then there is also some work--I have done some work and 
others have done work about suggesting that even non-preemptive 
Federal regulation alters the incentives that State regulators 
face and, in some cases, will discourage States from being 
innovative and being more aggressive and experimental in trying 
to address environmental problems because of the way it alters 
the political and other incentives for State action.
    So even non-preemptive Federal regulation can discourage 
States from being the laboratories of democracy that we would 
like them to be.
    Mr. Latta. Thank you very much, Mr. Chairman. I yield back.
    Mr. Shimkus. The gentleman yields back.
    The Chair now recognizes the gentleman from California, Mr. 
McNerney.
    Mr. McNerney. Thank you, Mr. Chairman.
    Mr. Shimkus. You are welcome.
    Mr. McNerney. Ms. Steinzor, have you ever heard of the word 
``chemical trespass''--the term?
    Ms. Steinzor. I am actually not familiar with that.
    Mr. McNerney. OK. Professor Revesz, you discussed fracking 
and the fugitive emissions of methane.
    Is the commerce clause broad enough, in your opinion, to 
permit the EPA--or the Federal Government to regulate fugitive 
emissions of methane?
    Mr. Revesz. Oh, definitely. The--I mean, fugitive emissions 
of methane are an interstate problem. They are actually a 
global problem. They would affect the negotiating posture of 
the United States in climate change negotiations.
    I don't think there is any plausible argument that would 
stand in the way of Congress choosing to act to regulate those 
emissions, should Congress choose to do that.
    And, moreover, I think that, because of the significant 
interjurisdiction externalities posed by fugitive emissions of 
methane as a matter of policy, there is a very compelling 
reason for congressional action.
    Mr. McNerney. Thank you.
    Professor Steinzor, could you describe how the States and 
the Federal Government work together to implement Federal 
environmental programs.
    Ms. Steinzor. Yes. The States have delegated authority to 
implement the programs so they work closely with EPA. EPA will 
set the minimum standards of what kind of protection is 
offered.
    And then the States write permits or otherwise take 
enforcement action against regulated entities to make sure they 
comply with those standards.
    And most of them are based on the protection of public 
health or the environment, and many have a cost-effectiveness 
requirement.
    Mr. McNerney. Thank you.
    Mr. Meltz, regarding this model that was just described, in 
your opinion, does the case law call into question this model 
of environmental cooperation?
    Mr. Meltz. Absolutely not. It is well established. It has 
been going on at least since 1970. And States, of course, have 
their own inherent police power to deal with these 
environmental problems. It is not that they get their authority 
to do so from the Federal Government.
    It is just that the Federal Government can set preemptive 
standards and then allow States to come in with their own 
programs and run the program within the State, if they would 
rather. But States have their own inherent authority, if not 
preempted.
    Ms. Steinzor. That was a great clarification.
    Mr. McNerney. I will yield the rest of my time to the 
gentlewoman from Colorado.
    Ms. DeGette. Thank you very much in the effort of 
efficiency.
    Mr. Chairman, first of all, I apologize for being late. We 
had a hearing upstairs on 21st Century Cures, which, as you 
know, I am the cochair with Chairman Upton.
    But I do want to take a minute to welcome Dean Revesz here. 
He is the dean of my alma mater--the dean emeritus of my alma 
mater, NYU law school, and he did a wonderful job when he was 
dean.
    Mr. Shimkus. That might make me reconsider a next 
invitation. So I am not sure that is helpful.
    Ms. DeGette. I knew that that would be, and that will save 
him a trip down here. So it is all good.
    Dean Revesz, I just wanted to ask a follow-up question to 
what you were talking to Mr. Green about, which is, really, the 
propriety of the Federal Government preempting State laws. What 
you were saying is oftentimes it is an economy of scale issue 
and what is the specific State concern.
    I am wondering how we, as Congress, can take that sort of 
general principle into consideration as we really look at 
fracking legislation or Tosca or all of the other issues we 
have been talking about this morning. How do we weigh those 
equities?
    Mr. Revesz. Well, it is a hard question, and you have a 
hard job.
    But there are some important guidelines. I mean, first, 
there is a significant distinction between product standards 
and process standards.
    The economies of scale argument really doesn't apply to 
process standards. You know, process standards can be very 
different across the country and products can still trade in 
national markets.
    So tracking the process standards, you don't have to worry 
about that. You know, whether its action is good or bad will 
have to be decided on other reasons, but you don't have to 
worry about the economy of scale.
    For products, you might have to. I mean, generally, bigger 
isn't always better. And, you know, we know that in all kinds 
of contexts.
    So I think some categorical boxes are fairly clear to draw. 
And you can learn about the manufacture of cars. It probably 
won't take that long to figure out that there are significant 
economies of scales.
    For most products--you know, products are produced in the 
centralized way across the country, product economies of scale 
are less.
    And you can also give some flexibility to the Federal 
regulator. Often these standards are going to be set by Federal 
regulators and there can be some flexible mechanisms, including 
some cooperative flexible mechanisms where they can work with 
the States.
    So I think you can make some broad generalizations, 
delegate some authority to do the Federal regulators, and then 
have them work cooperatively with the States. You will probably 
end up with an outcome that is pretty good.
    Ms. DeGette. Thank you very much.
    Mr. Shimkus. I want to thank my colleague.
    There is 11 minutes left before the vote is called.
    I want to recognize the gentleman from West Virginia for 5 
minutes.
    Mr. McKinley. Thank you, Mr. Chairman.
    I will try to be brief. I have many more questions here to 
ask with this, but given the time frame with it--Mr. Chairman, 
with all due respect to your expectations at this hearing, I 
really would like to ask Ms. Steinzor some other questions, 
especially after your testimony that you said that industry is 
browbeating the EPA.
    Is that a fair statement of what you said?
    Ms. Steinzor. Yes. I believe that is a fair statement.
    Mr. McKinley. Do you think that Congress is also pushing 
back against the EPA in a browbeating way?
    Ms. Steinzor. Yes.
    Mr. McKinley. I find that pretty incredible.
    That is why I like these discussions. We get off game here 
a little bit because I know he had intention, but here is a 
chance for us to have a dialogue about that because, quite 
frankly, many of us think that the EPA is a bully in the 
playground.
    It is imposing things on small individuals, small farmers, 
individuals, and we are trying to be their voice. We are trying 
to raise the awareness around the country that the EPA is 
overextending its bounds.
    So I am glad that you think that we are because it helps me 
understand a little bit better where you are coming from, 
whatever adjective we want to add to that.
    Do you think the EPA wage garnishment is fair, is right?
    Ms. Steinzor. I am not familiar with the circumstances 
where that happened.
    Mr. McKinley. Do you think the navigable waterways on our 
agricultural farms--do you think that is fair, their ruling?
    Ms. Steinzor. I actually think----
    Mr. McKinley. Just a ``yes'' or ``no,'' given the time.
    Do you think it is ``yes''? I am hearing a ``yes.''
    I heard that--on coal ash, did you even read the bill?
    Ms. Steinzor. I am sorry?
    Mr. McKinley. We passed it four times, by the way. The 
Senate is not taking the coal ash bill up. We could have 
resolved this issue, and the North Carolina situation probably 
would not have happened if the Senate had taken that bill up.
    So we are trying to work with that--the Congress has 
actually--the House is actually working a way to try to address 
this problem, and the Senate, because of an ideology, is 
preventing that from going forth.
    So, apparently, you are not aware.
    Ms. Steinzor. I am very familiar with the coal ash bill. I 
don't think it would have solved the problem in North Carolina.
    Mr. McKinley. Oh. You don't think the collapse of the dam--
--
    Ms. Steinzor. I don't think so, because you would have left 
it to North Carolina at the State level.
    Mr. McKinley. Well, you are not an engineer. So I can't 
image you would understand that.
    What about Spruce Mine? Do you think it was appropriate 
that the EPA has the ability to withdraw--retroactively 
withdraw a permit?
    Ms. Steinzor. I am not familiar with that situation.
    Mr. McKinley. What I am pointing out--and this is what 
America needs to understand--that is why we are pushing back 
against this bully in the playground.
    These are just examples of things that the EPA is doing to 
our community, our businesses, our farms, all across America, 
and someone has to stand up to them.
    Because individuals like the Alts over in eastern panhandle 
or the Sacketts out in Idaho, they don't have the resources. 
They need somebody here in Congress to stand up and push back 
against this bully.
    Have you ever experienced a bully?
    Ms. Steinzor. Yes, I have.
    Mr. McKinley. Then, you understand. You ought to be able to 
relate to that, about someone in the power----
    Ms. Steinzor. I disagree that EPA is a bully.
    Mr. McKinley. You do you agree that EPA is a bully?
    Ms. Steinzor. I do not agree that EPA is a bully.
    Mr. McKinley. Oh. OK. Well, I guess that is why we are just 
going to disagree with that.
    But, nevertheless, many of us perceive that, when we see 
them attacking industries, attacking families and their farms, 
we are talk--individuals trying to--in Idaho--I could go on and 
on with examples of that.
    I do hope you do get another chance to read the Fly Ash 
Bill because we passed it four times and we think it will 
address that.
    Actually, the EPA supports this legislation. They've 
indicated that they find it a workable document. If you are not 
aware of that, you might want to check into that a little bit.
    And the President did not issue a veto threat with that. So 
this was a document that could have gone to save that problem--
prevent that problem. But because of the ideology of people in 
the other body, apparently, they didn't want to do that.
    So I am sorry. In deference to time, let me not waste any 
more. And I yield back the balance of my time.
    Mr. Shimkus. The gentleman yields back his time.
    We want to thank the panel. There is still about 6 minutes 
left before we need to get to the floor. We talked about the 
time frame beforehand. So we are going to adjourn this in a 
minute. We are not going to call you back.
    Be prepared for some folks to follow up with questions. And 
if you would respond. You know, we try to primarily focus on 
the questions when should Congress consider acting and who 
should be the regulator.
    You got some very good questions. I was hoping for clarity. 
I think I got more confusion. But I guess that is what you guys 
live with and ladies live with when you deal with 
constitutional law and States' rights and the like.
    This was helpful to me. I appreciate your attendance.
    With that, I am going to call the hearing as adjourned.
    [Whereupon, at 10:32 a.m., the subcommittee was adjourned.]

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