South Dakota v. Dole


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More on EPA’s Coercion of the States

• 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.

NFIB v. Sebelius, Coercion, and the Unconstitutional Conditions Doctrine

• August 6, 2012 • 8:38 am

In NFIB v. Sebelius, the Supreme Court held that the Affordable Care Act would be unconstitutional if interpreted to condition the entirety of a state’s Medicaid funding on its decision whether to accept the Act’s expansion of Medicaid services.  The Court, through Chief Justice Roberts, explained that such a condition would impermissibly coerce the states and therefore exceed Congress’s power to spend the federal fisc on behalf of the general welfare.  In so holding, the Court distinguished its leading precedent in this area, South Dakota v. Dole, on the grounds that there the only funding at issue was a small percentage of federal highway funds, whereas here a substantial portion of the states’ budgets would be threatened.  The Court managed to uphold the Act by interpreting it as conditioning the receipt of new funds only on acquiescence to the Medicaid expansion.

Shortly after NFIB was decided, commentators noted that its coercion analysis might endanger other federal programs, such as the Clean Air Act.  Recently, attorneys for the State of Texas filed a notice of supplemental authority in a consolidated action in the D.C. Circuit Court of Appeals relying on NFIB to support its case.  The lawsuit challenges the Environmental Protection Agency’s decision to require the states to incorporate greenhouse gas limitations in their “state implementation plans.”  Under the Clean Air Act, a permit is required for the construction of, or significant improvements to, “major” emitting facilities, i.e., projects that will emit large amounts of air pollutants regulated under the Act.  Generally, these permits are issued by states pursuant to a state implementation plan that EPA has previously approved.  The trouble here is that EPA has required the states to update their plans to include permitting provisions for the reduction of greenhouse gas emissions, and several states, supported by industry, have balked.  Now, lawyers for Texas are arguing that NFIB’s coercion discussion supports Texas’s position that EPA cannot invalidate the state’s implementation plan and thereby preclude it from issuing permits.

I am not a Clean Air Act expert, but I see a significant problem with Texas’s use of NFIB(more…)