In writing the Clean Air Act (CAA), Congress was careful to ensure that the responsibility for improving and protecting the nation’s ambient air is shared by the federal government and state, local, and tribal governments. While the EPA is the federal entity that sets standards and bears the responsibility for implementing and enforcing the CAA, the Act also allows the Agency to delegate important implementation and enforcement tasks to the other governments. Also, the EPA is prohibited from delegating other provisions.

One reason for the division of labor is the concept of federalism, which is ingrained in the U.S. Constitution. The nation’s founders stated that under the law of the land, state and other governments are allowed to legislate and implement powers that are not specifically assigned to the federal government. The intent of federalism is to build a system in which the federal government works cooperatively with its nonfederal counterparts. Congress also recognized that the EPA could never possess the resources necessary to single-handedly implement and enforce the CAA across 50 states. By delegating certain key authorities to the states, the EPA both shares the burden and provides states with the flexibility to customize certain aspects of federal environmental law and regulation to their individual circumstances.

States make the choice

Importantly, no state is required toimplement any part of federal law. The Supreme Court has made this clear in several opinions. For example in New York v. United States et al. (1992), Justice Sandra Day O’Connor wrote and also quoted a previous opinion:

“As an initial matter, Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’ [In Hodel v. Virginia Surface Mining & Reclamation,] the [Supreme] Court upheld the Surface Mining Control and Reclamation Act of 1977 precisely because it did not ‘commandeer’ the States into regulating mining. The Court found that ‘the States are not compelled to enforce the steep-slope standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government.’”

States that wish to implement CAA programs must demonstrate to the EPA that they have the legal authority and resources to accomplish the job. That job includes operating compliance assistance and enforcing individual programs, although the EPA often lends a hand in these efforts and will step in and take over if it believes a state is not fulfilling its CAA duties. States that chose not to operate CAA programs may save money, but they may also forfeit federal funding. Perhaps, more importantly, they leave implementation and enforcement to the EPA, which will rarely possess an understanding of the state’s environmental, social, and economic conditions equal to that of the state government.

NSPS and NESHAPs

Major programs the EPA may delegate to state, local, and tribal governments include:

• New Source Performance Standards (NSPS) (40 CFR Part 60) and National Emission Standards for Hazardous Air Pollutants (NESHAP) (40 CFR Parts 61 and 63). NSPS and NESHAPs are promulgated by the EPA, which may implement and enforce the requirements. State and local regulatory agencies often implement and enforce similar requirements by adopting analogous regulations under state or local authority. In addition, CAA sections 111 and 112 allow the EPA to transfer primary implementation and enforcement authority for most of the federal standards to state, local, or tribal regulatory agencies. Upon delegation of a standard, sources must send any required notifications or reports directly to the delegated agency.
• Emission Guidelines (40 CFR Part 60) and State/Federal Plans (40 CFR Part 62). Delegation of these provisions are similar to NSPS and NESHAP delegations. However, a primary difference is that once Emission Guidelines are promulgated, the EPA or state and local regulatory agencies need a Federal Plan or State Plan approved under Part 62 to implement and enforce the requirements. The EPA strongly encourages state and local agencies in states that do not submit approvable state plans to request delegation of the Federal Plan so that they can have primary responsibility.

“The delegated agency becomes the primary implementation and enforcement authority for the delegated standard,” says the EPA. “In addition, the NSPS and NESHAPs programs provide flexibility from the promulgated requirements in a number of ways, as specified in individual rules, General Provisions regulations, and the statute itself. Examples of authorities that may be delegated to state, local, or tribal agencies include the ability to issue or approve certain applicability determinations, compliance schedule extensions, or alternatives to testing or monitoring requirements.”

The Agency adds that it does not delegate authorities to make decisions that are likely to be nationally significant or that alter the stringency of the underlying statutes. Examples include alternatives to required performance tests, public access to information generated under specific rules, and compliance waivers.