Yes, Gov. Whitman, states may choose which federal laws to implement

|The Volokh Conspiracy |

ADNODE: ;; AVCREDIT: Video by Ian Saleh, Elizabeth Tenety and Andrea Useem ;; BLURB: On Leadership: Christine Todd Whitman, former EPA administrator, on 'giving the facts' about nuclear power to environmentalists and what it means to be a moderate Republican. ;; EDITOR: ;; HEADLINE: On Leadership: Fighting a radioactive reputation ;; HEIGHT: 270 ;; HIDDENCOM: Christine Todd Whitman, On Leadership, nuclear power, environmentalists, solar power, oil spill, EPA, Tea Party, GOP moderate, CASEnergy ;; KEYWORDS: Christine Todd Whitman, On Leadership, nuclear power, environmentalists, solar power, oil spill, EPA, Tea Party, GOP moderate, CASEnergy ;; LENGTH: 4:38 ;; LKSET: LI2009102302860 ;; MEDIAPLAYER: Ninja ;; ORBITID: VI2010051900812 ;; PLAYLIST: LI2009102302738 ;; PNAVSEC: /media/opinion ;; PUBLISH: YES ;; SEARCH: YES ;; SHOOTDATE: 2010-05-17 15:06:59 ;; SLUG: 05172010-20v ;; SMEDIAURL: http://static.washingtonpost.com/wp/swf/OmniPlayer.swf?id=05172010-20v&flvURL=/media/2010/05172010-20v&playAds=true&adZone=wpni.video.opinion/onleadership&canShare=true&jsonURL=http%3A%2F%2Fmedia.washingtonpost.com%2Fmedia%2Fmeta%2F2010%2F05%2F17%2F05172010-20v.jsn ;; SOURCE: ;; WIDTH: 480 ;;
Christine Todd Whitman, former EPA administrator, file photo , May 17, 2010. (Ian Saleh/The Washington Post)

Christine Todd Whitman served as the governor of New Jersey and administrator of the Environmental Protection Agency. She is now an energy and environmental policy consultant. Given Whitman's experience, you might think she is an expert in environmental law and the relationship between the federal and state governments. Judging by Whitman's latest op-ed in Politico, if you thought that, you would be wrong.

The subject of Whitman's op-ed is Senate Majority Leader Mitch McConnell's suggestion (in an op-ed of his own) that states refuse to cooperate with the EPA's new plan to control greenhouse gas emissions from power plants. Specifically, McConnell is urging states not to develop their own state plans to implement the EPA's regulations, citing the costs such regulations will impose on electricity consumers and questions about the legal basis for the EPA's plans. According to McConnell, states should refuse to go along with the EPA in the hope that Congress or the courts will trim the EPA's sails.

According to Whitman, McConnell's suggestion "undermine[s] our nation's entire rule of law." She writes:

I was brought up to believe that following the law isn't optional. If you do not like one of those laws, you work to change it. This is why public service is so important—we have to trust our leaders to make the right laws, and if we feel they are not meeting that goal, we have to be willing to engage in the civic process. To have one of our country's leaders call on states to flout EPA's appropriate regulation is in direct contradiction to the oath of office that he took.

Far more significant than the senator's ongoing battle with the EPA, this has the potential to open Pandora's box when it comes to legislation and our rule of law. This recommendation on behalf of a sitting senator and Senate leader crosses a line that could easily lead to people or states simply choosing which laws they follow. In such a culture, how do you teach children right from wrong, ensuring the next generation doesn't view all laws as discretionary? This behavior undermines our government as a whole, as well as our deeply held conviction that the rule of law is the foundation of any stable society.

Coming from a former governor and EPA administrator who now holds herself out as an expert with "unparalleled insight and perspective" on environmental regulation, this is embarrassing stuff. Whether or not Sen. McConnell's suggestion is a good idea (and here's an argument it's not), there is nothing lawless about his suggestion, and certainly nothing that "undermines our government as a whole" or threatens the rule of law.

Under the Clean Air Act, the EPA adopts air pollution control regulations and plans, but lacks the authority to force states to comply. Rather, the CAA provides states with a choice. States may adopt State Implementation Plans (SIPs) implementing EPA rules at the state level, and are encouraged to do so. Should states refuse, however, the CAA directs the EPA to adopt Federal Implementation Plans (FIPs) and regulate in place of the states. In some cases, the CAA authorizes sanctions against uncooperative states as an added inducement. In all cases, however, the CAA leaves states with a choice. When states refuse to cooperate with the EPA, they are not undermining the law; they are following it.

Even if the CAA purported to authorize the EPA to adopt regulations telling states what to do, states would still be under no obligation to comply. It is well established that the federal government may not direct states to implement federal programs. As the Supreme Court has held repeatedly, any such effort by federal officials to "commandeer" state governments would be unconstitutional. This should not be news to a former EPA administrator, as the EPA tried (and failed) to force state governments to cooperate with the CAA in the 1970s.

Sen. McConnell's op-ed did not suggest that states engage in lawless behavior. Rather, he is encouraging states to make a choice for which the CAA expressly provides, and which the Constitution guarantees, albeit one with which Whitman disagrees. The EPA would like to enlist state cooperation to regulate greenhouse gases from power plants, and promises that state-level implementation will increase the flexibility and reduce the cost of meeting the EPA's emission reduction goals. The EPA is likely correct on this score, but states are still not required to go along.

Whitman may not know it, but there's a serious argument the EPA's entire plan is unlawful. Several states and energy companies have taken the EPA to Court. Their arguments are anything-but-frivolous and are supported by none other than Harvard law professor Laurence Tribe. Given the legal uncertainty, and the costs of implementing the EPA's plans, it is understandable that some states may wish to postpone cooperating until the legal questions are sorted out. Whitman may disagree with McConnell's suggestion that states hold off cooperating with the EPA in the meantime, but her suggestion that such a course undermines the rule of law is ludicrous.

[Postscript: Given all the discussion of federalism questions related to King v. Burwell, it's worth noting that the choice states face under the EPA's "clean power" plan is quite similar to that which the states face under the King plaintiffs' interpretation of the PPACA: Cooperate or face greater regulatory burdens. Under the EPA's plan, if states fail to cooperate with federal government, there will be a federal fallback (a FIP) and in-state firms will face substantially higher regulatory burdens. By some estimates, the costs in non-cooperating states could be as much as 75 percent greater than in cooperating states. Moreover, should a sufficient number of states refuse to cooperate, the EPA's entire plan would collapse, as the agency lacks the resources to adopt FIPs for more than a few states (as the agency's recent budget request makes clear). Thus if plaintiffs' interpretation of the PPACA is constitutionally problematic, it's hard not to conclude that the EPA's plans are even worse.]