The recent court decision voiding the efforts of the Bush administration to allow utilities to upgrade their plants — partially, rather than fully, as the law requires — signals the start of a redefinition of federal-state relations.
The plaintiff in this litigation was not an aggrieved individual or company but a dozen states acting in concert to battle the Bush rules.
On the merits of the lawsuit, I agree with the administration. The all-or-nothing requirement on upgrading utility plants has served to freeze the current dirty technologies in place and prevent any improvements at all. Half a loaf, in this case, is better and cleaner than none. But apart from the merits of the case, its true significance is that the states had acted together to challenge federal action.
The last three years of the Bush administration will be marked increasingly by just this sort of united state action, designed to fill the void left by a federal government that either refuses to act or doesn’t believe that action is necessary. The initiative will pass increasingly to the states on issues like consumer protection, global climate change, energy alternatives and conservation, fuel-efficiency standards, and environmental regulation. The large states led by activist governors will act where Washington won’t tread.
This pattern represents a total change from the traditional concept of states’ rights, a doctrine usually used to justify inaction or a conservative bent. But now states’ rights will be redesigned as a rubric for bold action by states acting in concert to do the things that Washington should do but won’t.
The early pattern was set when the nation’s attorneys general banded together to sue the tobacco companies, even as Congress, in the grip of tobacco lobbyists, failed to pass legislation to protect children from ads for smoking. By acting together, the states had the same force and effect as if Washington itself had acted. And so it will go in other areas as well.
As the nation moves away from its oil dependency, look to states to develop hydrogen and ethanol plants and to require certain percentages of vehicles sold within their borders to be powered by these new fuels.
The national consensus around advances on stem-cell research and the rejection by public opinion of the religious right’s concern for the fate of discarded embryos will lead to other states’ replicating the funding for stem-cell research that California voted for.
While Washington won’t move to tighten fuel-efficiency requirements for automakers, the states will probably band together to enact more draconian requirements for vehicles sold within their borders.
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