Federal- state relations in
envimnmental protection Constitutional issues have surfaced in an era of environmental concern
William A. Campbell Unicersity of North Carolina af Chapel Hill Chapel Hill, N.C. 27514 In the past 10 years or so a s the federal government has taken the dominant role in efforts to protect environmental quality, a number of constitutional issues have surfaced concerning the relationship between the federal government and the states. These issues can be grouped under one of three headings: When has state regulation of a particular activity been preempted by federal regulation? Under what circumstances can 264
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and should the federal government compel states to take certain actions? When is state regulation of a particular activity prohibited under the Constitution even though there exists no competing or inconsistent federal regulation concerning that activity’? Before examining several instances in which these issues have been raised. it will be well to review briefly the relevant constitutional provisions. The powers given to Congress by the Constitution are limited powers; if the basis for a federal regulator) program cannot be found in one of the specific grants of authority in the Constitution, then the program is invalid ( I ) . T h e specific grant of authority most often
relied on a s the foundation for environmental programs is the power to “regulate commerce . , . among the states (2),” the power to enact legislation affecting interstate commerce. There is also a negative side to this power over interstate commerce where the states are concerned that has been developed in a long line of Supreme Court decisions. T h e negative side is that even though Congress has not acted to regulate or control a particular aspect of interstate commerce, the
0013-936X/80/0914-0264$01.00/0 @ 1980 American Chemical Society
states may not regulate in that area if the effect of such regulation would be to restrict unduly the movement of goods and services in interstate commerce or to “Balkanize” the country. With this limitation, states a r e generally free to regulate various activities a s they see fit through the use of general police power. This is made explicit in the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, a r e reserved to the states, respectively, or to the people (3).” Although the exact nature of the limitations imposed by the Tenth Amendment on the federal government in its dealings with the states is far from clear, these limitations ar.e a matter of considerable importance since the case of National League of Cities I ‘ . U s e r j ~( 4 ) was decided, about which there is more to follow. Finally, once the federal government has acted regarding a subject over which it has constitutional authority, the federal laws and regulations adopted pursuant thereto are, under Article VI of the Constitution, “the supreme law of the land,” and no state laws to the contrary will be brooked. Given these general considerations. we may turn to three specific areas of controversy involving federal-state relations. T h e first is the preemption by federal law of state regulations applicable to nuclear fission electric power generating plants. The opposing values a r e those represented by the Tenth Amendment on the one hand, and by the supremacy clause of Article V I on the other. Generally speaking, preemption, or invalidation, of state law by federal law may occur in one of several ways. O n e way, obviously, is for the federal statute to declare unequivocally that no state action of any sort shall be allowed in this particular area ( 5 ) . When this happens, few difficulties arise, but preemption may occur even though the federal statute does not address the matter u neq uivoca I l y . This gives rise to the other two ways in which preemption may occur. It may be physically impossible to comply with both state and federal regulatory schemes, thus there is preemption of the state scheme (6). The courts may infer preemption because, for example, the state law is a n obstacle to the accomplishment of “occupy the field” and thereby excludes any state regulation, whether it is directly in conflict with the federal law or not (7). In recent years. the Supreme Court. the final arbiter in these matters. has
been reluctant to draw a n inference of preemption unless the evidence is strong that this was the intent of Congress (8). T h e nub of the problem in the nuclear power plant cases is that although the Atomic Energy Act of 1954 ( 9 ) provides for a comprehensive federal regulator) and management program for the civilian use of nuclear power, it does not directly preclude certain state regulations, and in fact a 1959 amendment (10) to that act permits the delegation of certain programs to the states and provides that “nothing in this section shall be construed to affect the authority of any S t a t e or local agency to regulate activities other than protection against radiation hazards ( I 1 ).” Two cases have addressed the issue of the extent to which there is room for state regulation of nuclear power plants, and one case has dealt with the question of local regulation of a nuclear reactor for research purposes under t h e s a m e statute.
Minnesota, the leading case T h e first case, and s&ll the leading one, is Northern States Power Co. c. Minnesota ( 1 2 ) . Northern States Power Company’s Monticello nuclear generating plant had received a n operating license from the A E C . T h e plant had also obtained a waste disposal permit from the Minnesota Pollution Control Agency, which regulated the level of radioactive liquid and gaseous discharges. T h e Minnesota permit covered the same areas a s the A E C license, but imposed more strinorthern States went to court, contending that the Minnesota permit requirements were preempted by the federal laws. T h e court found no express preemption of state laws in the Atomic Energy Act and its amendments, but did find a clear intent from which to infer preemption on t h e follon.ing grounds. First. it examined the 1959 amendments to the act that allowed the A E C to delegate some of its authority to the states and allowed states to regulate activities other than radiation hazards, and found that these amendments left the licensing and regulation of power plants entirely with the federal government, with no delegation in this area to t h e states. Second, the court found a pervasive federal regulatory scheme covering nuclear power plants, indicating a n intention to “occupy the field.“ Finally. it found that the nature of the nuclear power generating prog r a m is such that uniform. national
controls a r e called for. Despite the clear signal given by Northern States Power Co., several states in the mid- 1970s began to consider and enact legislation that would in one way or another impose a moratorium on the construction and operation of nuclear power plants (13). California was one of those states.
The California precedent In 1976, California enacted three statutes providing 1) that no new nuclear fission thermal power plant requiring the reprocessing of fuel rods shall be permitted in the state until the S t a t e Energy Commission finds that the responsible federal agency has approved a technology for the construction and operation of fuel rod reprocessing plants, and the state legislature approves this finding ( 1 4 ) ; 2) that no nuclear power plant may be certified by the energy commission until it finds that the responsible federal agency has approved a technology for disposal of high-level nuclear wastes, and the state legislature has approved this finding ( 1 5 ) : and 3) that the energy commission may not certify any nuclear power plant for which a notice of intent is filed after Jan. 1 . 1980 until the commission has completed a study of the necessity. effectiveness, and economic feasibility of berm containment and underground location of reactors. I n Pacific Legal Foundation c. State Energ?, Resources C‘onsercation and Deceloprnent Coniriiission ( I 7 ) , a federal district court held the California nuclear waste disposal statute-the only one a t issue in the case-to be preempted by the Atomic Energy Act. For the most part, the court covered the same ground that had been covered in Northern States and came to the same conclusion: it did, however, add two new twists. First, the court was willing to concede that the 1977 amendments to the Clean Air Act (18) overruled .Vorthern States insofar as state regulation of radioactive air pollution is concerned, but that the narrow overuling had no effect on the broad holding of the case that there is no room for state regulation of nuclear power plants. Second, California argued strenuously that it could show a purpose other than the control of radiation hazards for its statute and that therefore it should be preserved from preemption by the state savings clause contained in the 1959 amendments to the Atomic Energy Act. In answering this argument, the court said that if the state‘s contention Volume 14, Number 3, March 1980
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were accepted, it would permit the frustration of a national plan of rcgulation any time a state was skillful enough to characterize the purpose of its regulations as something other than the control of radiation hazards. As support for this part of its holding, the court relied on First Iowa HydroElectric Cooperatice c. Federal Power Commission ( 1 9 ) , a case that presented a strikingly similar situation in which a state attempted to oppose the construction of a hydroelectric facility that had received a n F P C license, and in which the Federal Power Act contained a similarly ambiguous savings clause for state authority. In that case, as in this one, the court said: “[Sltates cannot enact legislation which tends to frustrate national plans to develop resources for use in interstate commerce (20).”
The New York experience The third case, United States r . City of New York ( 2 1 ) , though perhaps less significant than the other two,, does serve to round out the perfect score of 0 for the states and 3 for the United States. In 1976, several months before Columbia University was to receive an operating license from the Nuclear Regulatory Commission for its nuclear reactor (an application process that had been underway since 1963), New York City amended its health code to require that any person seeking to operate a nuclear reactor must first obtain a certificate of health and safety from the city, notwithstanding the possession of federal licenses and permits. After Columbia obtained its N R C license in 1977, it applied to the city health commissioner for a city certificate, but its application was denied. Columbia brought suit in federal district court, claiming that the city ordinance was preempted by the federal regulatory scheme. T h e federal court, relying heavily ‘on Northern States Power Co., agreed and declared the city ordinance invalid. Federal-state tensions There a r e probably a number of reasons for this persistence by states to have a say in the regulation of nuclear power despite the holdings of the federal courts thus far that such attempts will be invalidated. One is the suspicion that the Nuclear Regulatory Commission, even though divorced from the development of nuclear power by the Energy Reorganization Act of 1974; is still not sufficiently concerned with health and safety measures. T h e incident a t Three Mile Island and the subsequent investigation and 266
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report of the incident buttress these suspicions. T h e question addressed in the California case, that of waste disposal from nuclear power plants, is still unsettled and grows more critical all the time. Some critics of federal inaction on this point niay have seen the California statute as a way of forcing the federal government‘s hand on this. Finally. there may be some who, while not opposed in principle to nuclear power, want all plants located away from population centers and see state or local rcgulation a s a way to accomplish this. Whatcvcr good and justifiable reasons therc niay be for these preempted regulations. the point made by the federal court in thc New York City case is pertinent: “[Tlhe local legislation is not insulated by its wisdom or nobility: for the purposes of the Supremacy Clause. the merit of the local enactment is irrclevant (22):’ Thus, it would appear that the remedy of those who want no nuclear power or more stringent regulation of that power lies not in the local but the national political arena (23). T h e second area of federal-state tension in environmental protection programs. rather than involving fcderal programs that prccnipt state controls, lies in federal efforts to compel state action. The Clean Air Act of 1970 and the Federal Water Pollution Control Act amendments of I972 both involve complex interrelationships between the federal and state governments a t almost every turn. Indeed, it is fair to say that without the full cooperation and enthusiastic support of the relevant stittc agencies, the objectives of those two pieces of legislation cannot be met. What happens, though, when states are reluctant to take the measures necessary to enforce national goals of environmental quality’?C a n the federal government. through t h e use of a carrot or a stick. or a combination of both, compel states to take the necessary measures? T h e constitutional values involved are the powers of Congress under thc Conimerce Clause and the protection given the states by the Tenth Amcndmcnt. N o better example of the difficulties posed by these questions exists than the history of transportation control plans undcr the Clean Air Act ( 2 4 ) . Under this act. the states were required to submit implementation plans to EPA demonstrating how they would achieve and maintain the national ambient air quality standards set by EPA ( 2 5 ) . I f required for the control of such t ra n s por t a t i on - re I a t ed po I I u tants a s carbon monoxide and photochemical oxidants (o7one). the ini-
plementation plans were to contain transportation control plans designed, essentially, to limit the use of private automobiles to the end of achieving the national standards (26). When several areas with intractable motor-vehicle-related pollution problems failed or refused to prepare and submit transportation control plans that EPA found adequate, EPA prepared plans that \bere to be enforced locally. Matters reached a stand-off in California, Baltimore. Md., and the District of Columbia and surrounding suburban areas; court suits were brought to resolve the issues. A look at what EPA was attempting to require of California gives the flavor of what was involved. The state was to: operate a n automobile exhaust emission inspection and maintenance program: limit the use of motorcycles: institute a n oxidizing catalyst retrofit program: impose surcharges on parking spaces; and establish preferential bus and carpool lanes (27). I f California refused to impose and enforce the plan. then EPA claimed that its enforccnient sanctions against the state included imposing a receivership on certain state functions, holding state officials in civil contempt, and requiring the state to allocate funds from one portion of its budget to another in order to finance the undertakings required by EPA (28). Two legal questions were involved in these suits: Does the Clean Air Act, as written, authorize EPA to compel the states to take these draconian measures? I f such action is authorized by the statute, does it then unconstitutionally infringe on state sovereignty contrary to the Tenth Amendment?
Some answers The cases answered these questions differently. T h e Fourth Circuit Court of Appeals in Marjsland r . E P A ( 2 9 ) and the Ninth Circuit in Brown 1:. E P A ( 3 0 ) ,held that the Clean Air Act did not give E P A the power it claimed to compel states to enforce transportation control plans. The court in Brown also expressed doubts about the constitutionality of what E P A was attempting to do. T h e Court of Appeals for the District of Columbia, in District of Columbia r . Train ( 3 l ) ,held that EPA did have the statutory authority it was attempting to exercise and that such authority was constitutional insofar as EPA could require states to control pollution from state-owned bus systems and to exclude from state highivays vehicles not complying with
federal emission controls, but unconstitutional insofar a s E P A was attempting to require states to institute motor vehicle exhaust emission inspection a n d maintenance programs. All three cases were appealed to the Supreme Court, which vacated the appeal and remanded the cases when E P A conceded that it did not have statutory authority to require states to impose regulations ( 3 2 ) .And there, in 1977. the matter rested. T w o developments subsequent to the Supreme Court’s action in the Broh,n case must now be taken into account. T h e first was enactment of the 1977 amendments to the Clean Air Act, which, generally, postponed the deadlines for attainment of the national a i r quality standards. and made more specific EPA’s authority reg a r d i n g transportation control plans. In the provisions of t h e it in end men t s dca I i ng 1% it h n on a t t a i n men t areas, that is, areas that have not met one or more of the nation a 1 stand a r ds, there is a requirement t h a t revised implementation plans be prepared that will attain the standards by no later than Dec. 31, 1982 (33). I f it is not possible for a n area to attain the national primary standards for photochemical oxidants and carbon monoxide by that data, a n extension may be granted until Dec. 31. 1987. but in order to obtain the extension. a motor vehicle exhaust emission inspection and maintenance program must be established for the area ( 3 4 ) . Moreover, in areas where the national primary standards for carbon monoxide or photochemical oxidants are not a t tained by July 1 , 1979, and transportation control plans a r e necessary for the attainment ol’those standards, such transportation plans must be prepared and submitted to E P A ( 3 5 ) . As a n enforcement device, the amendments provide that if a state does not submit a revised plan containing transportation control measures where those measures a r e required, no EPA grants under the Clean Air Act will be made to the area and
no highway grants will be made b> the Secretary of Transportation except under limited conditions ( 3 6 ) . T h e 1977 amendments also curtailed EPA‘s authorit) to prepare transportation control plans for the states and to require their implementation, a s was attempted in the California, Baltimore, and District of Columbia cases. EPA cannot require a n implementation plan to contain provisions for the review of indirect sources of air pollution (airports, highways, stadiums, shopping centers, etc.) except that review may be required of federally assisted indirect sources ( 3 7 ) . EPA cannot require the adoption of parking surcharge regulations ( 3 8 ) or
impose a plan requiring the nianagement of parking supply or preferential bus and carpool lanes without first holding a t least one public hearing in the area to be affected by the plan ( 3 9 ) .With these limitations, EPA still has whatever legal authority it either had or did not have to impose transportation controls, as was attempted in the California, Baltimore, and District of Columbia cases. T h e second important development was the Supreme Court’s decision in National League of Cities c. Userj. ( 4 0 ) that a 1974 amendment to the Fair Labor Standards Act which had extended federal minimum wage and maximum hour provisions to most state and local employees was uncon-
stitutional a s infringing on state sovereignty contrary to t h e T e n t h Amendment. This case, the full reach of which is still uncertain, thus made real the concerns of the Ninth Circuit in Brown that what E P A was attempting to d o with regard to transportation control measures was likely contrary to the Tenth Amendment. An uncertain future Where d o these developments leave EPA‘s authority to compel state action to achieve n a t ion a 1 e 11vir on m en t a I goals? In a state of uncertainty, to be sure, but some speculations can be ventured. I t would appear that EPA‘s power to compel state action through the withholding of grants under the Clean Air Act itself is unaffected ( 4 1 ) . T h u s , the Withholding of Clean Air Act grants to states or regions that have not submitted the necessary transportation control plans is valid. The next step is the withholding of other grants, such as transportation funds, t o compel compliance with the Clean Air Act. This, too, is probably valid, though if the g r a n t s a r e completely unrelated to air quality control, a question may be raised whether such use of the federal spending power does not come within the ban of ,l;ational League of Cities. T h e final step is a n attempt to require a state to enforce a n implementation plan prepared by EPA that calls for the enactment of certain state regulatory measures. Here, the full force of National League of Cities comes into play, and may well render such attempts unconstitutional. While the protection of state sovereignty is clearly a n important value in our system of federalism, if EPA’s power to compel state action is substantially impaired, the almost inevitable consequence is that progress toward the meeting of national environmental objectives will be seriously hampered. E P A simply does not have the resources to undertake all of the monitoring and enforcement activities required, and the states. if left to their Volume 14, Number 3, March 1980
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own devices, a r e quite unlikely to be vigorous in their pursuit of national goals. After all, the ineffectiveness of state environmental protection programs was one of the major reasons for the federal government’s assuming a dominant role in the Clean Air Act and the F W P C A . T h e third area in which federalstate tension has arisen is akin to the situation in which federal preemption of state laws occurs, except in this case there is no congressionally enacted regulatory program in conflict with the state law. Rather, the state law impermissably burdens or restrains interstate commerce and is held invalid on that ground alone. T h e invalidation of state or local legislation on grounds that it unduly burdens or restricts interstate commerce has a long tradition, and has been used, for example, to strike down state taxes that burden interstate commerce ( 4 2 ) and statutes that discriminate against interstate commerce (43). T h e two most recent cases in which this doctrine has been employed in an environmental protection context to invalidate state laws a r e City ofPhiladelphia u. New Jersey ( 4 4 ) and Hughes u. Oklahoma ( 4 5 ) . New Jersey had prohibited the importation into the state of any liquid or solid-waste that originated or was collected outside the territorial limits of the state. Several cities in other states and New Jersey private landfill operators sued to have the Iaw declared invalid. The Supreme Court first found that the statute was not preempted by the federal Solid Waste Disposal Act and the Resource Conservation and Recovery Act, so that if it was to be declared invalid it would have to be on Commerce Clause principles. T h e Court rather summarily brushed aside New Jersey’s contention that the wastes could not be classified as “commerce.” I t found that although the state may have had legitimate health and economic reasons for enacting the statute, it was requiring interstate commerce to bear the cost of meeting those concerns. In so doing, the state was discriminating against interstate commerce by using protectionism in a way that the Court has consistently declared invalid. As Professor Laurence Tribe says in his comment on this case, the Court apparently viewed the problem of waste disposal as one the nation must solve as a unit: “[Tlhe peoples of the several states must sink or swim together . . . even in their collective garbage ( 4 6 ).” 268
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In the Hughes case, Oklahoma, by criminal statute, prohibited shipment out of state for purposes of sale, minnows taken in state waters. T h e defendant, Hughes, was convicted under the statute and appealed on the ground that the statute was invalid under the Commerce Clause. T h e S u p r e m e Court agreed, reversing Geer c. Connecticut ( 4 7 ) , which for many years had required special deference to state laws protecting fish and wildlife. Henceforth, such Gws will be measured by the same Commerce Clause tests as other laws. The Court said that a state may protect its natural resources, but not through so discriminatory a measure as was enacted by Oklahoma. The lesson of these two cases is that while the Supreme Court, in its role of umpire under the Commerce Clause, recognizes states’ concerns for the protection of their natural resources and the health and welfare of their citizens, measures implementing those protections must be taken in the context of a national economy. A state may not isolate itself from the general run of environmental hazards or set aside its resources for special treatment by discriminating against interstate commerce or by attempting to close its borders to transactions it regards as undesirable.
References (1) See L. Tribe, American Constitutional Law 225 (1978). (2) U. S. CONST. art. I, S: 8, cl. 3., and see Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policv. 86 Yale L.J. 1196. 1222-1223 (1977”: (3) U S . CONST.amend. X. (4) 426 U.S. 833 (1976). (5) See L. Tribe, supra note 1 at 376-389. (6) Id. (9) 68 Stat. 919, codified as 42 U.S.C. $9: 2011-2296. (10) 73 Stat. 688. codified as 42 U.S.C. 6 2021. (11) 42 U.S.C. 9: 2021(k). (12) 447 F.2d 1143 (8th Cir. 1971), affirmed mem., 405 U.S. 1035 (1972). (13) See Murphy and La Pierre, Nuclear “Moratorium” Legislation in the States and the Supremacy Clause: A Case of Express Preemption, 76 Colum. L. Rev. 392 (1976). (14) CAL. PUB. RES. CODE $ 25524.1. (15) CAL. P U B . RES. CODE $ 25524.2. (16) CAL. PUB. RES. CODE 25524.3. (17) 9 ELR 20149 (S.D. Cal. March 6, 1979). (18) Specifically, 42 U.S.C. $ 7422, which transfers from the NRC to the EPA and the states authority to set air quality standards and emission limitations for radioactive air pollutants for purposes of protecting the public health.
(191 328 U.S. 152 (1946). (20) 9 ELR 20149,20153. (21) 463 F. S u m . 604 (S.D.N.Y. 1978). (22) 463 F. Suppl. 604,608. (23) For a thorough treatment of the issues involved in federal preemption of state laws attempting to regulate nuclear power plants, see Murphy and La Pierre, supra note 13, and Tribe, California Declines the Nuclear Gamble: Is Such a State Choice Preempted? 7 Ecology L. Q. 670 (1979). (24) For a perceptive discussion of this general topic, see Stewart, supra note 2, and Henderson and Pearson, Implementing Federal Environmental Policies: The Limits of Aspirational Commands, 78 Colum. L. Rev. 1429 (1978). (25) 42. U.S.C. 6 7410. (26) Id. at $ 7410(a)(2)(B). (27) Brown v. EPA 521 F.2d 827.830 (9th cir. 1975) vacated and remanded per curiam, 431 U S . 99 (1977). (28) 521 F.2d 827,831. (291 530 F.2d 215 (4th cir. 1975). (30) Supra note 27. (31) 521 F.2d 971 (D.C. Cir. 1975) 1321 431 U.S. 99 (1977). (33) 42 U.S.C. I; f502(a)(l). (34)‘Id. at $5 7502 (a)(2) and 7502(b)(11)(B). (35) See id. at $ 7504. (36) Id. at 4 7506. (37) Id. at 9: 7410(a)(5). (38) Id. at 9: 7410(c)(2)(B). (39) Id. a t $ 7410(c)(2)(E). (40) Supra note 4. (41) See North Carolina v. Califano. 445 F. Supp. 532 (E.D.N.C. 1977), affirmed mem., 435 US.962 (1978). (42) See Memphis Steam Laundry Cleaner, Inc., v. Stone, 342 U S . 389 (1952). (43) See Toomer v. Witsell. 334 U.S. 385 (1948). (44) 437 U.S. 617 (1978). (45) 60 L.Ed.2d 250 (19791. (46) L. Tribe, supra note 1, 1979 Supp. 39-30. (47) 161 U.S. 519 (1896)
William A. Campbell is professor ofpublic law and gocernment at the Institute o f Gouernment at the Unicersity o f North Carolina at Chapel Hill. In addition t o teaching, Professor Canipbell is incolced in consulting actiuities. H e was counsel t o the Eticironniental Studies Committee of the N.C. Legislatice Research Commission; the conimittee’s report on soil and sedimentation pollution, which he drafted, was enacted into law by the 1913 General Assembly. H e is presently a consultant to the N.C. Department of Administration on designing and implenienting computerized land records recording and indexing systems pursuant t o a grant f r o m the U.S. Department o f Housing and Urban Decelopment.
