Cooperative Federalism Requires Cooperation From Both Sides

In 2011, the National Parks Conservation Association sued EPA for failure to enforce the regional haze requirements of the Clean Air Act.  EPA and the NPCA settled in 2012, establishing a schedule by when SIPs or FIPs had to be promulgated.  The only state remaining is Texas.  After several extensions, EPA is required to approve a SIP or promulgate a FIP by September 9, 2017.  You can hear the clock ticking.

On August 18, EPA moved unilaterally to extend the deadline to December 31, 2018.  The basis for the motion?

“policy changes legitimately instituted by the new administration led to a breakthrough in the relationship between EPA and Texas,” and that, through that new relationship, the Governor of Texas has made a “firm commitment” to “bring the full weight and resources of the State of Texas to bear” on the development of an approvable state implementation plan.

Judge Amy Berman Jackson was having none of it.  Last week, she denied the government’s motion.  As she concisely put it:

This is not the sort of significant change in circumstance that would warrant relief.

In other words, the cooperative federalism tango requires two willing parties — the federal government and the state involved. As the Court noted, Texas’s statutory obligation was in effect in 2007 and EPA informed Texas of its failure to comply with the SIP requirements in 2009.  “Texas has had ample time to develop, submit, and negotiate a compliant” SIP.

It takes two to tango.

One thought on “Cooperative Federalism Requires Cooperation From Both Sides

  1. Lest we forget, the Regional Haze rule was one of those challenged in court by EPA Administrator Pruitt when he was Oklahoma AG. Anyone who has to tango with that elephant in the room will have to watch his toes!

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