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Tuesday, September 13, 2005

Law - In the regulatory arena, states rush in where the feds fear to tread

"States Rush in Where the Feds Fear to Tread" is the headline to a really interesting article today by Cindy Skrzycki, who writes a regular column for the Washington Post titled "The Regulators." Some quotes:

Even before Hurricane Katrina brought into high relief the sometimes rocky relations between the federal government and the states, it has become increasingly routine for states and localities to go their own way on the regulatory front, either making their own rules or filing lawsuits to shape regulatory policy.

State legislatures, attorneys general and regulators are intervening in areas, especially affecting the environment, where they don't think federal standards are stringent enough. The activist stance taken by New York Attorney General Eliot L. Spitzer against securities and brokerage firms, for instance, resulted in Congress and regulators at the Securities and Exchange Commission being more interested in tuning up federal rules.

Does this recall for you the "no more stringent" arguments from some members of the Indiana General Assembly? More from the column:
Ironically, the regulatory activism on the local front grows, in part, from Republican-backed shifting of authority to the states and the deregulation of large industries. The result, because some of the state regulation is grounded in litigation, has been huge settlements involving large industries, most notably tobacco, as well as more localized control.

"You see spontaneous state cartels. It's a parallel national government," said Michael S. Greve , director of the Federalism Project at the American Enterprise Institute . In one of his writings, he calls it preempting the national government, or "federalism upside-down."

States like California and New York traditionally have been activist regulators, but now "model rules" developed by state associations and individual initiatives are being pursued throughout the country.

"We have a mantra. Where the federal government is unable or unwilling to address an important air pollution problem, the states and localities will step in and fill that gap," said S. William Becker , executive director of state and local air pollution associations.

Becker's group is working on a model rule to curb mercury emissions from power plants because it thinks the recently issued federal mercury rule is weak and takes too long to implement. It also developed a "menu" of alternatives that states can use to beef up changes the Environmental Protection Agency made to address how expanded industrial facilities must control their pollution. And it has a model rule -- which nine states have adopted -- for states to reduce truck diesel emissions.

In another initiative, nine Northeast and mid-Atlantic states have banded together to form the Regional Greenhouse Gas Initiative to address global warming by using a state trading system to control emissions. * * *

Business is uneasy with the states' "regulation by litigation."

"As much as people bash the federal agencies, we would rather have them set the standards and then determine where there should be more flexibility. Attorneys general are not necessarily the right people to set regulatory policy -- even in their own states," said Lawrence Fineran , vice president for regulatory and competition policy at the National Association of Manufacturers .

Paul Ferber , political science professor at the Rochester Institute of Technology , said no one should be surprised that activist states have grabbed the regulatory reins. "When you push authority onto the states, you shouldn't be shocked when they actually do something," he said.

Posted by Marcia Oddi on September 13, 2005 08:41 AM
Posted to Environment | General Law Related