How states’ rights became a liberal environmentalist cause

Mike Blake/Reuters
Commuters make their way along a highway during morning rush hour in Los Angeles Feb. 22, 2019. What began as a skirmish over California’s right to set fuel emissions regulations has escalated into a broader battle over states’ rights.
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California, it seems, is at war with the Trump administration. 

What began as a battle over California’s right to impose fuel emissions regulations has escalated to include accusations that the state has failed to clean up its air and water and threats to withhold federal funds as a result. The latest blow came Friday when the Trump administration announced it was opening up 720,000 acres of federal land in California for oil and gas development. Anticipating that decision, state lawmakers had already crafted legislation to ban development of infrastructure that would be used for oil and gas extraction on protected federal lands. Democratic Gov. Gavin Newsom has yet to sign that bill.

Why We Wrote This

At the heart of the ongoing feud between California and the Trump administration lies a familiar tug of war over the role of states’ rights. But this time around, the players seem to have switched teams.

Beneath the tit for tat lies a familiar struggle in American politics over the role of states’ rights that many associate with particular partisan battle lines. But both liberals and conservatives have touted federalism when it suits them on some issues, and not on others.

Public policy professor Barry Rabe refers to it as “selective federalism.” “For the party out of power there’s often a kind of discovery of federalism because it gives a greater chance of getting what you want,” he says.

States’ rights are sacred for many conservatives in the United States.

So how did liberal California become a poster child for states’ rights in its escalating battle with the Trump administration on environmental regulation?

From fuel emissions to oil and gas drilling permits, California is at war with the Trump administration. And at the heart of the feud is the state’s desire to set its own environmental regulations – an issue of states’ rights, and also a continuation of the “cooperative federalist” model that has long been a backbone of American environmental policy. But in this case, as well as in environmental battles being fought in other states, it’s the Republican administration arguing for the supremacy of federal rule.

Why We Wrote This

At the heart of the ongoing feud between California and the Trump administration lies a familiar tug of war over the role of states’ rights. But this time around, the players seem to have switched teams.

“They’re exercising what the Western Governors’ Association executive director has called ‘fair-weather federalism,’” says David Hayes, executive director of the State Energy & Environmental Impact Center at New York University School of Law and deputy interior secretary under President Barack Obama. “As long as states do what they want them to do, it’s fine. If they exercise their rights in a way that the feds don’t like because it’s not consistent with their policy, then they’re against it.”

In California, as in some other liberal-leaning states, states’ rights has become a rallying cry. “To those who claim to support states’ rights – don’t trample on ours,” proclaimed California Attorney General Xavier Becerra last month, after the Trump administration revoked the state’s long-standing waiver that allowed it to set its own vehicle emissions. 

The idea of states’ rights as a conservative principle is somewhat more nuanced: For decades, both liberals and conservatives have touted federalism when it suits them on some issues, and not on others. 

“I often talk about selective federalism,” says Barry Rabe, a public policy professor at the University of Michigan. “For the party out of power there’s often a kind of discovery of federalism because it gives a greater chance of getting what you want.” 

But, he notes, in the absence of significant environmental legislation from Congress in the past 30 years, creative engagement between state, federal, and sometimes local authorities has allowed real advances to be made in cleaning up the nation’s air and water. What’s happening now, he says, seems to be dismantling that, and points to a starker division that’s emerged on climate, in particular.

Rich Pedroncelli/AP
Gov. Gavin Newsom discusses the Trump administration's pledge to revoke California's authority to set vehicle emissions standards that are different than the federal standards, during a news conference in Sacramento, California, Sept. 18, 2019.

When President Obama issued the Clean Power Plan, 24 state attorneys general immediately filed suit. When the Trump administration removed the Clean Power Plan, 22 states went to court to protest that move. “There is a pattern here, and it shows a real deep divide,” Professor Rabe says. This is “the next step in a process that’s been intensifying for some period of time.” 

And the lack of federal action on climate, says Mr. Hayes, has meant that some states have tried to step into the void. 

“Traditionally, states’ rights are considered a conservative principle, but it’s the more progressive states now that are showing the way to environmental protection in the climate area in particular, so it’s kind of flipped the script a little bit,” says Mr. Hayes.

Battle over tailpipe emissions

In California, the biggest shot across the bow came last month when the Trump administration announced it was revoking California’s waiver that allows it to set its own auto emissions standards. The state has held this waiver since 1967, when Congress made the exception in recognition of the unusual pollution challenges that California faces. Since 2009, California’s waiver has expanded to include greenhouse gases in its list of pollutants, affecting Corporate Average Fuel Economy (CAFE) standards. That was a more unusual move (and was denied by the Bush administration when the state first made the request in 2007), but several automakers voluntarily joined with California, pledging to raise CAFE standards to nearly 50 mpg by 2026. And 13 other states have joined with California’s stricter tailpipe emissions.

It’s the impact those standards have on the rest of the country that acting Environmental Protection Agency Administrator Andrew Wheeler took issue with. 

“To borrow from Louisiana Attorney General Jeff Landry, CAFE does not stand for California Assumes Federal Empowerment,” Mr. Wheeler said in a September speech to the National Automobile Dealers Association. “We embrace federalism and the role of the states, but federalism does not mean that one state can dictate standards for the nation.”

A week later, Mr. Wheeler sent letters to California officials charging that the state was failing to take enough action to clean up its air and water, and threatening to withhold some federal funds as a result.

And on Friday, the Trump administration announced it was opening up 720,000 acres of federal land in California for oil and gas development. There had previously been a five-year moratorium on leases in the state, following a court ruling that there was insufficient analysis of the environmental impacts of fracking.

Anticipating that decision, state lawmakers have been fighting back. 

Assemblyman Al Muratsuchi, a Democrat who represents a Southern California district, authored legislation to ban building any new oil and gas infrastructure on state land that would be used to support oil and natural gas extraction on protected federal lands (which could impact some of the lands being opened for leasing). The bill passed last month, but has yet to be signed by Democratic Gov. Gavin Newsom.

“If there’s anything that brings bipartisan outrage in California, it’s when people start messing with our beaches and oceans,” Mr. Muratsuchi says. Last year, he initiated a bill that prohibited the construction of new infrastructure in state coastal waters that would aid federal oil and gas development.

The legislator casts his latest bill as an extension of the state’s ongoing efforts to be a world leader on climate change and renewable energy – even if that means bucking the Trump administration. “We’re not looking for a fight,” Mr. Muratsuchi says. “But if we need to stand up to protect our state, our people, and our beautiful lands, we will.”

A consistent pattern

While California – and the emissions waiver, in particular – is a major example of the federal government breaking with tradition and revoking a state’s power, it’s only one of several, says Mr. Hayes. Also under attack, he says, have been states’ right to approve or disapprove projects based on their water-quality standards, to petition the EPA to take action against upwind states that negatively impact their air quality, and to determine what kind of energy they want, as fossil fuels claim they’re being unfairly pushed out by states that want clean energy. 

It’s a consistent enough pattern that last month, the Environmental Council of the States, a nonpartisan association of state environmental agency leaders, sent a letter to Administrator Wheeler raising their concerns. The organization is “seriously concerned,” it stated, about unilateral actions “that run counter to the spirit of cooperative federalism and to the appropriate relationship between the federal government and the states who are delegated the authority to implement federal environmental statutes.”

In California, the threats to revoke federal funding over failing to meet clean air and water standards seemed to some critics like a declaration of war on the state.

“It strikes me as a really special kind of hypocrisy that [Administrator Wheeler] attacks California over its air quality and the problems it’s facing with air pollution a mere week before the administration opens three-quarters of a million acres for oil and gas drilling, which will invariably worsen the air pollution problems we have,” says Clare Lakewood, a senior attorney at the Center for Biological Diversity, one of the groups that sued to get a moratorium on drilling leases in 2013. 

And other Californians worry, primarily, about the effect that the federal actions will have on the state. 

Several studies in recent years have found that the agricultural region that stretches between San Francisco and Los Angeles has the country’s worst air quality, says Gustavo Aguirre Jr., a county director with the Central California Environmental Justice Network.

“We’re already dealing with bad air and bad water in our area,” he says. “With these policies, we risk making things even worse and undoing the small progress we’ve made in the last 20, 30, 40 years.”

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