Delegation of EPA's CERCLA Enforcement Authorities to Qualified States Would Not Violate the U.S. Constitution

January 1999
Citation:
29
ELR 10018
Issue
1
Author
Victoria L. Peters

Editors' Summary: During congressional debate on CERCLA reauthorization, attention has focused on the role of states in executing the Act. Some observers of these debates have questioned the constitutionality of delegating EPA cleanup and enforcement authorities to states. In contrast, this Article argues that such delegation is permissible under the U.S. Constitution and constitutional jurisprudence. The author asserts that under the Appointments Clause, the delegation of CERCLA authorities to states would not usurp Executive Branch functions. Delegated states would not be considered federal officers and, therefore, could exercise significant authority pursuant to federal law. Similarly, delegation of CERCLA authorities to states would not violate the Take Care Clause by impermissibly interfering with the President's execution of the laws because EPA would retain sufficient authorities to ensure faithful execution. In addition, the author claims that contrary to the unitary executive theory, delegation of CERCLA authorities to states would not impermissibly diminish the power of the Executive Branch and, therefore, would not violate the separation-of-powers doctrine. The Executive Branch would retain audit power over the states, and actual implementation of CERCLA would be pursuant to federal policy and regulations. Likewise, delegation to states would not violate the principles of federalism because states would not be compelled to implement CERCLA. Rather, the decision to assume CERCLA authorities would be left to the state. Last, the author argues that as evidenced by state implementation of certain provisions of the CAA, Congress routinely delegates federal enforcement authorities to nonfederal officers.

Victoria Peters is a Senior Assistant Attorney General in the CERCLA Litigation Unit of the Colorado Attorney General's Office. She is the attorney for the Yak Tunnel-California Gulch Superfund Site, at which the state filed a natural resource damage claim in 1983. Ms. Peters also served as the Colorado attorney charged with review and oversight of remedial activities at the Rocky Mountain Arsenal, Colorado's other unresolved natural resource damage case. Ms. Peters was joint counsel on the eight-state appeal of the national contingency plan. Since 1983, she has been an active member of the National Association of Attorneys General's CERCLA Reauthorization Workgroup and Chairperson of the Federal Facilities Subcommittee of that workgroup. Ms. Peters is a Phi Beta Kappa graduate of George Washington University and attended the University of Denver College of Law. The author would like to thank her legal assistant. Thomas Bouec, and her former law clerk, Ashley Westbrook, for their help in preparing this Article.

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