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Emerging Statutory and Constitutional Tools for States to Resist Federal Environmental Regulation

March 1998

Citation: ELR 10127

Author: Michael B. Gerrard

This is a time of high tensions between the federal government and the states over environmental regulation.1 The flashpoints include actions by the U.S. Environmental Protection Agency (EPA) against states that enact laws shielding environmental audit reports from discovery;2 the withdrawal of several states from certain regulatory reform programs and delegated programs;3 and EPA accusations that some states are ignoring many violations of the pollution control laws,4 and loud denials by state representatives.5

The Supremacy Clause of the U.S. Constitution and the complex of federal environmental statutes enacted in the 1970s and 1980s still give Washington the upper hand in most of these battles. However, several new tools are now emerging that enable the states—and, in some instances, municipalities and the private sector—to resist federal environmental directives and actions.

Michael B. Gerrard is a partnerin the New York office of Arnold & Porter, a member of the adjunct faculties of Columbia Law School and the Yale School of Forestry and Environmental Studies, chair of the Executive Committee of the Association of the Bar of the City of New York, and former chair of the Environmental Law Section of the New York State Bar Association. He is general editor of the six-volume Environmental Law Practice Guide (Matthew Bender). Portions of this Dialogue previously appeared in the New York Law Journal and are reprinted with permission.

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