More on EPA’s Coercion of the StatesDamien M. Schiff • August 8, 2012 • 9:13 am
An astute reader argues, contrary to my earlier position, that coercion of the states is always unconstitutional because it always amounts to an indirect “commandeering” of the state’s legislative or executive arm. With respect to Texas’s lawsuit against EPA challenging the agency’s command that the states incorporate greenhouse gas provisions into their state implementation plans, he argues a clear-cut case of commandeering. The states are told to change how they administer the Clean Air Act’s permitting program, and are threatened with a revocation of their entire permitting authority (as opposed to some smaller portion thereof) if they don’t act. A revocation of their permitting authority is no doubt coercive. And that coercive result EPA uses as leverage to get the states to amend their plans.
I fully agree with the reader that if EPA has no authority to require the states to amend their implementation plans, or to amend them on a very expedited basis, then EPA’s actions are unconstitutionally coercive. But of course this example doesn’t contradict my earlier position that coercion per se is not problematic, and only becomes so if the coercion is being used to achieve an end (amendment of the implementation plans) that EPA couldn’t achieve directly.
Yet I believe that the reader would go further to argue that even if EPA can under the statute require the states to amend their implementation plans to include greenhouse gases, and to do so on an expedited basis, the coercion and commandeering principles would forbid it because EPA is essentially forcing the states to act as federal surrogates. With the caveat that South Dakota and NFIB were Spending Clause, not Commerce Clause, cases, I see the reader’s point. Even if one assumes that EPA could legally and constitutionally impose a construction moratorium regardless of Texas’s implementation plan decision, the harm to federalism principles by conditioning that moratorium on Texas’s decision to administer the permitting program would still be considerable. Texas cannot tolerate a construction moratorium, but if it accedes to EPA’s demands, then the electorate may seek to hold Texas responsible for a policy decision that really is from EPA.