3
industrial polluters effectively. The stick of cooperative federalism, therefore, was a host
of command and control environmental requirements found in national laws such as the
Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and so on.
The prevailing national legislative pattern was to preempt state laws, then permit
devolution of responsibility back to state governments.
3
Under this partial-preemption
approach, Congress required the federal oversight agency to set national environmental
standards and then delegate day-to-day programmatic responsibilities back to states with
approved programs.
4
States have leeway to implement their laws and design their
enforcement strategies, provided these laws and regulations are at least as stringent as the
applicable federal statute. If approved state programs prove inadequate in enforcing
national standards, the federal government reserves the right to "preempt" state authority
and reassume primacy. Today, about three-fourths of all environmental programs are
delegated to the states, up from 41 percent in 1993.
5
The carrot of cooperative federalism was federal financial assistance. Since as a
practical matter, the federal government effectively could not run pollution control
programs on the ground (hence the need for a system of delegated authority), it would
provide grants-in-aid to facilitate implementation of these new rules by state and local
governments. The pattern was familiar: Congress attached one or more categorical grants
to most major environmental laws.
As the costs of environmental protection escalated, critics quickly began to argue
that federal-state relationships were less cooperative than coercive. Coercive federalism
occurs when the federal government reduces or holds constant intergovernmental fiscal
incentives while simultaneously increasing regulatory demands in an effort to achieve
Convention