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The federal Clean Air Act initiated Congress's venture into cooperative environmental federalism in 1970. Forty-five years later, misconceptions about the nature of that venture (and similar examples of cooperative federalism under other federal environmental statutes) persist. In particular, some recent judicial decisions characterize environmental cooperative federalism as an equal partnership between the federal Environmental Protection Agency and the states. They also take umbrage at efforts by EPA to override state policies and initiatives that fail to conform to the minimum responsibilities that the statutes impose on the states, characterizing them as unlawful affronts to state sovereignty.

This chapter argues that the CAA was never designed to be an equal partnership. The Act's text, structure, and legislative history demonstrate clearly that Congress chose to put EPA at the helm, and that it did so out of concern that collective action problems such as transboundary externalities, diseconomies of scale, and the race to the bottom could only be overcome if the federal government held the upper hand in the regulatory partnership created to promote air quality improvement. It argues that an accurate application of the cooperative federalism model actually established under the CAA is imperative for the successful implementation and enforcement of the statute’s programs and goals for both criteria air pollutants and greenhouse gases.

GW Paper Series

GWU Law School Public Law Research Paper No. 2015-42; GWU Legal Studies Research Paper No. 2015-42

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