The Clean Power Plan: Achieving Clean Air Act Goals with Flexibility and Cleaner Energy
When Congress extensively amended the Clean Air Act in 1970 to form the air pollution laws that we know today, it spoke in no uncertain terms about the breadth of federal authority in this area while also centrally involving states in the effort to clean up the nation's air. Congress directed the EPA Administrator to list the pollutants "which in his judgment" have "an adverse effect on public health and welfare" and are generated from "numerous or diverse" sources – pollutants known as "criteria" pollutants that threaten public health and the environment.1
To protect our health and the nation's valuable crops, buildings, and ecosystems, the EPA is required to establish maximum acceptable concentrations of these criteria air pollutants, and states have to write plans to keep them below those concentrations.2 If the plans do not meet the requirements of the law, Congress provided that the federal government should write its own plan.3 Further, out of concern that state plans would not do enough to keep pollution below acceptable levels, Congress in the 1970 Amendments also directed the EPA to write national emissions standards ("new source performance standards") that limited the amount of pollutants that newly constructed …
In a merits opinion issued on June 21, 2016, the U.S. District Court for the District of Wyoming (Judge Skavdahl) held that the U.S. Bureau of Land Management--the agency tasked with protecting and preserving federal lands for multiple uses by the public--lacks the authority to regulate hydraulic fracturing ("fracking") on federally-owned and managed lands. Using a Chevron step 1 analysis (one standard used to review agencies' interpretation of the meaning of statutes that grant agencies authority), the court finds that "Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing," with the exception of fracturing that uses diesel fuels. The court bases this erroneous conclusion on the Safe Drinking Water Act (SDWA)--an Act that governs Environmental Protection Agency and state authority over underground water sources. Under the SDWA, entities that inject substances underground must first obtain a permit …
The Colorado Supreme Court's decisions last month holding that local governments in Colorado could not ban or place long-term moratoria on hydraulic fracturing ("fracking") added to the growing list of states that have preempted local control over this oil and gas production method. This is a troublesome trend and one that calls for closer scrutiny as more states follow this path.
Local governments are "merely" arms of the state, and, therefore, states do have the power to take back the broad land use authority they have historically delegated to local decision makers if they so choose. This is true even in states that have granted broad home rule authority to local governments through their constitutions, although the ability of a legislature or court to take back constitutionally granted home rule is somewhat more limited.
In Colorado, for example, the state constitution makes clear that local law …
