Driving States' Rights

I recently took my car in for a vehicle emissions test at a Virginia auto repair station. I was done within an hour. But if former Environmental Protection Agency (EPA) administrator Carol Browner had had her way, I would have likely waited hours at one of a dozen or so government-run centralized testing stations.

In 1994, Browner tried to force Virginia to implement centralized testing. If she had succeeded there, she would have forced that policy on the rest of the 49 states.

State lawmakers have grown accustomed to such federal intrusions, and they usually just relent. But as Becky Norton Dunlop shows in her recently released book, Clearing the Air, it doesn't have to be that way. State officials can challenge the federal bureaucracy and win.

As former Secretary of Natural Resources under Virginia Governor George Allen (1994-1998), Dunlop stood firm against EPA-mandated centralized emission testing, even when that meant risking federal highway funds. Browner backed down when the newly elected Republican Congress threatened to amend the Clean Air Act.

Challenging EPA

States have many tools if they wish to challenge federal bureaucracies--particularly EPA.

The most critical challenge Dunlop details was EPA's attempt to mandate electric cars in 12 Northeastern states. The standards would have mandated that car manufacturers produce, and dealers sell, the "California car." The term comes from a 1990 California law that required 10 percent of the state's fleet to be "zero-emission" vehicles (which amounted to a mandate for electric cars).

As one of her first responsibilities, Dunlop found herself debating the issue with other state officials at an interstate commission created by the federal Clean Air Act. Eight of the12 Northeastern states voted for the California car.

Dunlop knew, though, that a "zero emission" mandate would not serve the interests of Virginia residents or the environment. Electric cars don't completely eliminate emissions; electricity production simply creates emissions elsewhere. And electric cars produce more of other pollutants (e.g., carbon monoxide), while disposal of lead acid batteries presents other problems. Moreover, "California cars" travel only 70 miles before needing hours of recharging, and they cost tens of thousands more than conventional cars.

Yet Browner followed the commission's recommendation and mandated the California car. The Allen administration sued EPA, and the court overturned the agency's rule, holding that "EPA's rule does not respect states' independent authority; it removes it."

That ruling was a substantial victory for federalism. While only Virginia challenged the rule in court, none of the other states involved--not even one of the eight that voted for the standard--chose to implement the policy on their own.

It should be no surprise that Virginia could prevail. Systematic research indicates that challenges to EPA rules have high chances of succeeding. In a recent analysis, Jonathan Adler found the agency loses the majority of legal battles against its rules, and it only wins about a third (the rest are thrown out for reasons not related to the substance of the case).

Clearly, state officials have opportunities to take back some of their rights . . . but they must pursue them.

Federalism Contains Damage

By choosing to assert the case for federalism, the Allen administration was able to stave off a policy that has proven a disaster elsewhere. The California standards, due to be implemented in 2003, may not actually go into effect, due to problems associated with the costs of these cars.

Arizona chose to voluntarily pursue a similar policy, with terrible results. The Arizona law attempted to promote "alternative fuels" vehicles. But because they were so expensive, the law subsidized the purchase of those cars, with Arizona paying as much as $20,000 per car. Within just four months, hoards of opportunists took advantage of the program and effectively raided the state treasury--absorbing 10 percent of the entire state budget. The legislature quickly placed a moratorium on the law, and now must consider delaying tax cuts to pay off the costs of this failed experiment.

As the Arizona case proves, even state governments will pass awful laws. But the beauty of federalism is that Arizona's mistake remains Arizona's alone. If the Allen administration had not stepped in and defended its right to not go down that road, we might have seen that mistake sweep all the states in the Northeast. State officials everywhere should take note.

Angela Logomasini is director of risk and environmental policy at the Competitive Enterprise Institute.

For more information ...

EPA's Record in Federal Courts. EPA can often be beaten in court. Jonathan Adler examines the record. (Reason Public Policy Institute, May 2000).

Request PolicyBot documents #2330413 (summary, 3pp.) and #2330301 (study, 21pp.)