Is EPA head Pruitt a federalism hypocrite for criticizing California climate policy?

353px-Scott_Pruitt_by_Gage_Skidmore
Courtesy of Gage Skidmore

EPA Administrator Scott Pruitt has been an outspoken proponent of federalism, both at EPA and when he was Oklahoma’s Attorney General. As Oklahoma AG, he regularly challenged federal regulation, particularly environmental regulation, for exceeding the federal government’s role and trampling on the states.

He is so well known for his commitment that E&E News described his ascendency to EPA as riding “a wave of federalism.” Since arriving at EPA, he has continued to advocate for federalism, proclaiming that “federalism matters.”

“I seek to ensure that we engender the trust of those at the state level,” rather than approach them as “adversaries,” Pruitt said in his first address to agency staff.

There have been some early signs that this commitment is genuine. For instance, EPA’s reconsideration of the much maligned WOTUS rule began with consulting state and local government stakeholders.

All of this is to say that The Hill‘s recent attention-grabbing headline “EPA chief jabs California’s environment push” seems out of step with this stated commitment to federalism. Since President Trump was sworn in, California has vowed to pick up the slack in environmental regulation, by charging full speed ahead with the state’s ambitious climate policy. As the Governor recently explained:

“I want to do everything we can to keep America on track, keep the world on track, and lead in all the ways that California has,” he said. “We’re looking to do everything we can to advance our program, regardless of what happens in Washington.

That’s exactly how federalism is supposed to work. If the federal government gets out of the way, the states will each choose their own policies and, through experimentation, find better, smarter ways to protect what their citizens value. So how could Mr. Federalism (Pruitt) object?

The piece in The Hill cribs a quote from a N.Y. Times story. The full quote provides the necessary context to show that Pruitt’s objection to particular California policies is fully consistent with his federalism commitment.

Of Mr. Brown’s push to expand California’s environmental policies to the country and the world, Mr. Pruitt said, “That’s not federalism — that’s a political agenda hiding behind federalism. Is it federalism to impose your policy on other states?“ Mr. Pruitt asked in a recent interview in his office. “It seems to me that Mr. Brown is being the aggressor here,” he said. “But we expect the law will show this.”

This comment shows a refreshingly sophisticated understanding of federalism, which isn’t surprising from a lawyer who has worked on the issue so extensively. Federalism is not a facile “states-rights” theory that says that state governments should be able to do whatever they want.

Rather, federalism depends on reciprocal limitations on the federal and state governments. The federal government’s power must be limited to allow states to experiment with novel solutions to vexing public policy problems. But state power must also be limited to ensure that they do not obstruct competition among the states. Federalism’s success depends on states competing with each other for mobile citizens and industry, giving states incentives to innovate and respond to the wishes of those they govern.

State-level experimentation . . . is as essential for environmental policy as anywhere else. By pitting states against each other in competition for mobile citizens and businesses, federalism encourages states to innovate to solve difficult public policy problems, while also minimizing burdens. Unfortunately, states are increasingly attacking that system by extending their environmental regulations beyond their borders.

California is one of the states that has attacked federalism’s structure in an effort to shield itself from competition. Rather than trusting that its climate policy is better than other states and letting the chips fall where they may, California has attempted to prevent “leakage”—its code for people and businesses who disagree with the policy leaving the state—by regulating activity beyond its borders.

Pruitt is right to criticize California’s effort to impose its regulation on other states. That isn’t federalism, it’s an attack on federalism. If California can regulate activity in Idaho, how is Idaho supposed to experiment with its own policy solutions? Any novel approach it might choose would be redundant and costly regulation imposed on top of what California has done. By keeping state power constrained within state borders, federalism ensures that every state will have a chance to experiment and compete.

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