Let’s posit that a lot of federal clean air and water legislation and/or enforcement is stifled by federal executive and/or legislative action over the next few years. What should the blue states do?

Background: the states and federal government share what is called concurrent jurisdiction over certain areas in clean air and water. When the federal government regulates in that area, as the senior political entity its laws and administrative activities are said to pre-empt state action rendering the state impotent in those areas to that extent.

However, where the federal government withdraws its powers of regulation, states, analyzing the resulting vacuum, could tailor laws, regulations and enforcement policies to fill that vacuum to the extent of their powers. State powers are not wholly congruent with federal powers in these areas, but in the absence of a federal presence, I think they could be very effective. They would also preserve federal expertise by transferring it to the states.

More to the point, I specifically propose that states promptly enact anticipatory legislation as standby powers to fill any vacuum created by any subsequent federal withdrawals from areas of concurrent environmental legislation, regulation or enforcement. This of itself may discourage federal withdrawal from these areas, and also preserve the skills of federal experts that would otherwise be displaced or lost.

Bill Appel

Friday Harbor