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Today, as we face a climate emergency, our thinking about energy and environment is, of necessity, more integrated than ever. State programs-market-based and otherwise-to promote clean energy and reduce power sector greenhouse gas emissions have been very successful. Yet federal regulatory actions aimed at weakening greenhouse gas regulation and recent efforts to advance wholesale energy market changes that would favor carbon intensive fuel sources jeopardize states' rights to build on the success of their climate protection and clean energy policies.
The March 2017 Presidential Executive Order on Promoting Energy Independence and Economic Growth constituted a significant reset of U.S. energy and environmental policy. Section 2 ordered the immediate review of all "existing regulations, orders, guidance documents, policies, and any other similar agency actions . . . that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources." The Order was the first step in an aggressive deregulatory agenda that the current administration has often framed as an effort to reduce federal overreach and promote states' control over environmental policy.
But we have been down this road before. Many Americans recall the days before the federal Clean Air and Clean Water Acts were passed, before there was a Superfund law that required polluters to pay for the cost of cleaning up their pollution. Federal law was necessary to curb the pollution that threatened public health, ecosystems, and local economies. Pollution recognizes no state border; no matter how diligent a downstream or downwind state may be in controlling pollution from in-state sources, without a federal standard, there is not too much that can be done about out-of-state pollution. In our system of cooperative federalism, state and federal governments share power-often with the federal government setting minimum standards and the states taking a lead role in enforcement and implementation.
States, of course, are central to energy and environmental policy innovation, and truly are functioning as "laboratories of democracy," in the words of former U.S. Supreme Court Justice Brandeis. For example, in the absence of federal action on greenhouse gas emissions, Northeast and Mid-Atlantic states put in place the first regulated...