U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

93–071PDF 2015

CONSTITUTIONAL CONSIDERATIONS: STATE 

VERSUS FEDERAL ENVIRONMENTAL POLICY IMPLEMENTATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

JULY 11, 2014 

Serial No. 113–159 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

RALPH M. HALL, Texas 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

BEN RAY LUJAN, New Mexico 

PAUL TONKO, New York 

JOHN A. YARMUTH, Kentucky 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

PHIL GINGREY, Georgia 

Vice Chairman 

RALPH M. HALL, Texas 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

TIM MURPHY, Pennsylvania 

ROBERT E. LATTA, Ohio 

GREGG HARPER, Mississippi 

BILL CASSIDY, Louisiana 

DAVID B. MCKINLEY, West Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Ohio 

JOE BARTON, Texas 

FRED UPTON, Michigan (ex officio) 

PAUL TONKO, New York 

Ranking Member 

FRANK PALLONE, JR., New Jersey 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JERRY MCNERNEY, California 

JOHN D. DINGELL, Michigan 

JANICE D. SCHAKOWSKY, Illinois 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

HENRY A. WAXMAN, California (ex officio) 

(II) 

(III) 

C O N T E N T S 

Page 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Paul Tonko, a Representative in Congress from the State of New York, 

opening statement ................................................................................................ 4 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, opening statement ............................................................................. 6 

WITNESSES

Robert Meltz, Legislative Attorney, Congressional Research Service ................. 8 

Prepared statement .......................................................................................... 10 

Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director, 

Center for Business Law and Regulation, Case Western University School 

of Law .................................................................................................................... 26 

Prepared statement .......................................................................................... 28 

Richard Revesz, Lawrence King Professor of Law and Dean Emeritus, New 

York University School of Law ........................................................................... 48 

Prepared statement .......................................................................................... 51 

Rena Steinzor, Professor, University of Maryland School of Law, and President, Center for Progressive Reform .................................................................. 59 

Prepared statement .......................................................................................... 61 

(1) 

CONSTITUTIONAL CONSIDERATIONS: STATE 

VERSUS FEDERAL ENVIRONMENTAL POLICY 

IMPLEMENTATION 

FRIDAY, JULY 11, 2014 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, 

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 9:16 a.m., in room 

2123, Rayburn House Office Building, Hon. John Shimkus (chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, Gingrey, Whitfield, 

Murphy, Latta, Harper, McKinley, Johnson, Tonko, Green, 

DeGette, McNerney, Barrow, and Waxman (ex officio). 

Staff present: Charlotte Baker, Deputy Communications Director; 

Sean Bonyun, Communications Director; Leighton Brown, Press 

Assistant; Allison Busbee, Policy Coordinator, Energy and Power; 

Jerry Couri, Senior Environmental Policy Advisor; Brittany Havens, Legislative Clerk; Kirby Howard, Legislative Clerk; David 

McCarthy, Chief Counsel, Environment and the Economy; Tina 

Richards, Counsel, Environment and the Economy; Chris Sarley, 

Policy Coordinator, Environment and the Economy; Jessica 

Wilkerson, Legislative Clerk; Jeff Baran, Democratic Staff Director, 

Energy and the Environment; Jacqueline Cohen, Democratic Senior 

Counsel; Caitlin Haberman, Democratic Policy Analyst; and Ryan 

Schmit, Democratic EPA Detailee. 

Mr. SHIMKUS. The subcommittee will now come to order. 

The Chair recognizes myself for 5 minutes for an opening statement. 

Before I want to start, I want to recognize Mike Pollock, who is 

our intern from American University. He is in the School of Law. 

Because when I make my opening statement, you will know that 

I didn’t write it. I am reading it. So I appreciate his work. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Today’s hearing gives us an opportunity to discuss some important questions we face as lawmakers. When we create policies to 

protect human health and the environment, when should we defer 

to the States? When should policy be set at the national level but 

implemented at the State level? When should it be implemented at 

the national level? 

2 

At first, different provisions of the U.S. Constitution seem to 

offer different answers, but our job is to reconcile those provisions. 

That harmony will not come if we take the easy way out and say, 

on the one hand, that all these decisions are up to the States or, 

on the other hand, that what the Federal Government determines 

should rule, even right down to the most local level, thus making 

the States mere area offices of the Federal Government. 

The Commerce Clause confers enormous power on Congress. Our 

friend, Rob Meltz, a leading constitutional scholar, will tell us just 

how sweeping it is and just how broad our options are. But Rob 

will also help us remember that there is a 10th Amendment to our 

Constitution’s Bill of Rights which reads, and I quote, ‘‘The powers 

not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or 

to the people.’’ 

Let’s not forget the Bill of Rights was the States’ price of ratification. In fact, the States themselves created the Federal Government, but, in doing so, the States did not dissolve themselves. 

So what did the States want from a national Government that 

the Articles of Confederation did not give them? For one, they 

wanted open interstate trade or, and I quote, ‘‘regular commerce.’’ 

Their vehicle for achieving this was Congress’ power to regulate 

commerce with foreign nations among the several States and with 

Indian tribes. 

During the 1930s, this commerce power was read so broadly by 

the Supreme Court that it seemed to have no bounds. In fact, a loaf 

of bread baked and consumed by a farmer using his own wheat was 

said to be interstate commerce for purposes of Congress’ power to 

regulate it. 

By the late 1990s, the Supreme Court began to rediscover some 

limits on the Commerce Clause. The Lopez decision, which we will 

ask Rob Meltz to explain, seemed to focus on Congress’ power 

under the law more than on its reach. That case established that 

only economic activity may have a substantial effect on interstate 

commerce to be regulated by the Commerce Clause. 

So when we look at environmental policy and commerce regulation, we see an interesting mosaic. If someone tosses litter out his 

window, the punishment is entirely between him and the county 

sheriff applying State or local law. But when the sheriff records the 

time of the offense on the citation, he uses a time set by the Federal Government under the Standard Time Act of 1918, a law our 

committee amended in 2005 for daylight savings. 

Drugs and medical devices, among many others, are regulated at 

the national level, in part because they are important but also because, once approved, they need to flow freely in interstate commerce. Consumers and the whole economy benefit enormously from 

a single market for these and other products that are made in one 

State, sold in another, and used in still others. 

Professor Revesz described this as capturing economies of scale. 

Mass production, which makes so many of our everyday goods more 

economical, is pretty hard to do if each State demands its own custom batch. 

Free trade among States leads also to free trade with foreign 

countries. When we work out international trade agreements that 

3 

give our products, such as corn growers, access to foreign markets, 

part of the deal sometimes includes allowing those countries access 

to our markets. That access is hollow if States have the option of 

closing off trade on their own. As a prior witness put it, the price 

of admission to the international trade negotiations is ‘‘one country, 

one voice.’’ 

So, in my view, where Congress has the inherent capability to 

protect health and the environment, we in Congress should defer 

to them. We in Congress must also have a rationale to step in 

where a State is not constituted to take the steps it needs to 

achieve that protection. And I believe we have a basis to step in 

where impacts are multi-State and doing so will facilitate trade in 

goods and services among States and internationally. 

And then there is the middle ground, where either leaving the 

job entirely to the Federal or the State Government is not warranted. Sometimes Congress sets national standards to be fair 

among the States but leaves implementation of those national 

standards to the States. 

How stringent such Federal standards should be and whether 

benefits should outweigh the costs are all questions for another 

hearing. For today, we are only asking when should Congress consider acting and who should be the regulator. At our next hearing 

on July 23rd, we invite EPA, the States, and others to discuss steps 

to modernize State and Federal cooperation. Today, we will focus 

on the constitutional underpinnings of those basic decisions. 

We appreciate all our witnesses appearing today and look forward to your testimony. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

Today’s hearing gives us an opportunity to discuss some important questions we 

face as lawmakers. When we create policies to protect human health and the environment, when should we defer to States? When should policy be set at the national 

level but implemented at the State level? When should it be implemented at the 

national level? 

At first, different provisions of the U.S. Constitution seems to offer different answers. But our job is to reconcile those provisions. 

That harmony will not come if we take the easy way out and say, on the one 

hand, that all these decisions are up to the States or, on the other hand that what 

the Federal Government determines should rule, even right down to the most local 

level, thus making the States mere area offices of the Federal Government. 

The Commerce Clause confers enormous potential power on Congress. Our friend, 

Rob Meltz, a leading Constitutional scholar, will tell us just how sweeping it is and 

just how broad our options are. But Rob will also help us remember that there is 

a Tenth Amendment in our Constitution’s Bill of Rights which reads: 

‘‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.’’ 

Let’s not forget: the Bill of Rights was the States’ price of ratification. In fact, the 

States themselves created the Federal Government, but in doing so, the States did 

not dissolve themselves. 

So what did the States want from a national Government that the Articles of Confederation did not give them? For one, they wanted open interstate trade or ‘‘regular 

commerce.’’ Their vehicle for achieving this was Congress’ power ‘‘to regulate commerce with foreign nations, among the several States, and with the Indian tribes.’’ 

During the 1930s this commerce power was read so broadly by the Supreme Court 

that it seemed to have no bounds. In fact, a loaf of bread baked and consumed by 

a farmer using his own wheat was said to be in interstate commerce for purposes 

of Congress’ power to regulate it. 

4 

But by the late 1990’s the Supreme Court began to rediscover some limits on the 

Commerce Clause. The Lopez decision, which we’ll ask Rob Meltz to explain, seemed 

to focus on Congress’ purpose under the law more than on its reach. That case established that only economic activity may have a substantial effect on interstate 

commerce to be regulated by the Commerce Clause. 

So when we look at environmental policy and commerce regulation we see an interesting mosaic. If someone tosses litter out his window, the punishment is entirely 

between him and his county sheriff applying State or local law. 

But when the sheriff records the time of the offense on the citation he uses a time 

set by the Federal Government under the Standard Time Act of 1918—a law our 

Committee amended in 2005 for daylight savings. 

Drugs and medical devices, among many other goods, are regulated at the national level, in part because they are important, but also because, once approved, 

they need to flow freely in interstate commerce. Consumers and the whole economy 

benefit enormously from a single market for these and other products that are made 

in one State, sold in another, and used in still others. 

Professor Revesz describes this as capturing economies of scale. Mass production, 

which makes so many of our everyday goods more economical, is pretty hard to do 

if each State demands its own custom batch. 

Free trade among States leads also to free trade with foreign countries. When we 

work out international trade agreements that give our producers, such as corn growers, access to foreign markets, part of the deal sometimes includes allowing those 

countries access to our markets. That access is hollow if States have the option of 

closing off trade on their own. As a prior witness put it, the price of admission to 

international trade negotiations is ‘‘one country, one voice.’’ 

So, in my view, where States have the inherent capability to protect health and 

the environment, we in Congress should defer to them. We in Congress must also 

have a rationale to step in where a State is not constituted to take the steps it 

needs to achieve that protection. And I believe we have a basis to step in where 

impacts are multi-State or doing so will facilitate trade in goods and services among 

States and internationally. 

And then there is the middle ground where either leaving the job entirely to the 

Federal or State Government is not warranted: sometimes Congress sets national 

standards to be fair among the States, but leaves implementation of those national 

standards to the States. 

How stringent such Federal standards should be, and whether benefits should 

outweigh the costs, are all questions for another hearing. For today, we are only 

asking when should Congress consider acting and who should be the regulator? 

At our next hearing on July 23 we invite EPA, the States, and others to discuss 

steps to modernize State and Federal cooperation. Today, we will focus on the Constitutional underpinnings of those basic decisions. 

We appreciate all our witnesses appearing today and look forward to your testimony. 

Mr. SHIMKUS. With that, I yield back my time and recognize the 

gentlemen from New York, Mr. Tonko, for 5 minutes. 

OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK 

Mr. TONKO. Thank you, Mr. Chair, and good morning. 

Good morning to our witnesses. 

The first hearing held by our subcommittee last February was on 

the same topic that we are going to discuss today, the balance between Federal and State authority. As I pointed out at the start 

of that hearing, this issue has been part of our national debate 

since the first Continental Congress. I don’t expect we are going to 

resolve that issue today, if ever. 

State and Federal involvement in environmental protection has 

been a part of our history for much longer than the past 70 or 80 

years. Congress established our first national park, Yellowstone, in 

1872 to protect the unique and beautiful landscape and its resources. 

5 

Federal involvement in environmental protection increased over 

the years when it became obvious to the public that individual 

State action was insufficient to protect essential common resources 

that were being severely damaged by pollution generated and disposed of by unregulated industrial and other human activities. Resources often are not contained within the border of a single State, 

especially air and water resources, and pollutants frequently do not 

respect State boundaries. 

Over the course of this Congress, our subcommittee has held 

hearings on two issues, in particular, that have involved questions 

of whether the States or the Federal Government should define the 

floor of environmental and public health protection for citizens: the 

disposal of coal ash for one, and the regulations of chemicals in 

Congress for another. 

In both cases, the current level of guaranteed Federal protection 

is very low. This is especially true in the case of coal-ash disposal, 

a practice that for all intents and purposes is regulated by individual States. The failures of coal-ash disposal facilities that communities have experienced in recent years and the risk to the air 

and water resources are a clear demonstration of the hazardous situation being created by insufficient monitoring and insufficient regulation. 

In the case of chemicals, the Federal law governing industrial 

chemicals has failed to generate basic information about hazards 

and exposure for the vast majority of chemicals that we are exposed to each and every day. In fact, we do not even have reliable 

information about how many chemicals are actually in use. Very 

few have been regulated or restricted through application of TSCA. 

In the absence of a credible Federal program and in the face of 

evidence of increased exposure and risk of chemicals, States have 

responded to their citizens’ demands for action. We need Federal 

laws to set strong standards to ensure all of our citizens a basic 

level of health, safety, environmental quality, and opportunity. 

But that does not mean that individual States should be prevented from exercising their authority to act on behalf of and in response to the desires of their citizens. States should be able to go 

beyond Federal law and offer additional protections to address 

unique situations or to safeguard unique resources. And the model 

of Federal standards-setting with State-based implementation has 

worked well, giving States the flexibility to tailor requirements to 

their specific circumstances. 

Through State and Federal environmental programs, we have 

fostered a dynamic economy and a healthy and clean environment. 

We need to build on the progress we have made, and we can do 

that with a strong partnership amongst the Federal Government 

and our States. 

We have a very able and distinguished panel of witnesses, and 

I look forward to your testimony. And I want to thank all of you 

for participating in today’s hearing, which will provide valuable direction and insight into the issues we address. Thank you so much. 

And, with that, Mr. Chairman, I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. 

Does anyone on the majority side seek time? 

6 

If not, the Chair recognizes the gentleman from California, the 

ranking member of the full committee, Mr. Waxman, for 5 minutes. 

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Mr. WAXMAN. Thank you very much, Mr. Chairman. 

Two weeks ago, we marked a grim milestone. The House of Representatives took its 500th anti-environmental vote since the Republicans took control. With the Energy and Water Appropriations 

bill on the floor this week, the tally, I am sure, is now even higher. 

This hearing examines what the Constitution has to say about 

State and Federal authority to protect the environment. Unfortunately, House Republicans appear more interested in weakening 

existing environmental protections than in using our constitutional 

authority to ensure that all Americans, wherever they may live, 

can breathe the air, drink the water, and avoid exposure to toxic 

chemicals. 

In February of this year, a stormwater pipe under a retired coalash impoundment in North Carolina collapsed. It released up to 

82,000 tons of coal ash and 27 million gallons of contaminated 

water. The effects of the spill were visible across 70 miles of the 

Dan River, crossing from North Carolina into Virginia, and affecting drinking-water sources for the citizens of Danville, Virginia, 

and Virginia Beach. 

This is just the latest coal-ash spill to pollute drinking-water 

sources and damage resources across State lines. According to a recent estimate, the economic impacts of this spill could exceed $70 

million. For the recreation industry around Danville, Virginia, the 

impact could even be more severe if the river loses its designation 

as a scenic river. 

There is no question that water pollution, air pollution, and toxic 

chemicals cause widespread economic harm. It is also clear that 

Congress has the authority under the Constitution and responsibility to address risks from pollution. Courts have repeatedly 

upheld environmental statutes as appropriate exercises of our commerce power. 

Over the years, Congress and States have developed and refined 

a proven model of cooperative federalism which has successfully reduced air and water pollution and ensured the public’s access to 

safe drinking water. Under this model, Congress sets minimum national standards of environmental protection. States may take responsibility for implementing and enforcing these standards if their 

requirements are at least as protective as the Federal floor. EPA 

retains backstop enforcement authority, ensuring that every citizen 

in the United States receives a minimum level of protections from 

environmental risks. And States retain the authority to establish 

more protective standards and programs to meet their own individual circumstances. 

At a hearing in this subcommittee last year, stakeholders told us 

that protecting the environment through cooperative federalism is 

working. States are implementing over 96 percent of the environmental programs that can be delegated by the Federal Government 

7 

to the States. These programs have an impressive track record of 

protecting Americans. 

Despite this record of success, the majority has continued to pursue proposals that would upend this proven model, although there 

is no consistency in their approach. A core Federal responsibility is 

protecting one State from pollution of another. Well, that makes 

sense; we have to deal with cross-State boundaries, and pollution 

doesn’t respect those boundaries. Yet this committee has voted over 

and over again to block EPA regulations that would do exactly this. 

EPA promulgated regulations to reduce power-plant emissions 

that pollute the air in downwind States. Well, that makes sense. 

But the House Republicans voted to block implementation of those 

standards. The States can’t deal with it by themselves if they are 

subject to downwind pollution, so they have to look to the other 

State to cooperate. 

EPA issued standards to reduce mercury and other toxic air pollutants from power plants. That pollution crosses State boundaries 

and is a national problem. Our Republican majority voted to block 

those important public health standards, as well. 

This hearing should remind us again that protecting public 

health and the environment works best when both the Federal 

Government and State Governments contribute. If not, polluting 

industries will play one State off another so that every State is 

forced to reduce their pollution protection for their citizens for fear 

that they will lose the jobs and industry will locate elsewhere. 

Thank you, Mr. Chairman, for this opportunity to make this 

opening statement. 

Mr. SHIMKUS. The gentleman yields back his time, and I thank 

the gentleman. 

Now we are going to go right to our panel. I will do an introduction, and then I will turn to you for your opening statement. I will 

do an introduction of the whole panel. 

First of all, we have Robert Meltz. He is with the American Law 

Division of the Congressional Research Service, a service that we 

rely on a lot. And we appreciate you being here. Jon Adler, who is 

a professor of law at Case Western School of Law. We have Richard 

Revesz, who is from New York University School of Law. Thank 

you, sir. And Rena Steinzor, who is a professor at the University 

of Maryland School of Law. She has been here numerous times, 

and we thank her for coming back. 

The ranking member helped set this debate, and I appreciate his 

comments. Again, what we asked was, when should Congress consider acting, and who should be the regulators, the question we 

posed. 

With that, I will start with Mr. Meltz. Sir, your full statement 

is entered into the record, and you have 5 minutes. 

And hit the microphone, and then pull it close so that it can get 

to the transcriber. 

Mr. MELTZ. Is it on now? 

Mr. SHIMKUS. Yes, but pull it close like you want to eat it. 

8 

STATEMENTS OF ROBERT MELTZ, LEGISLATIVE ATTORNEY, 

CONGRESSIONAL RESEARCH SERVICE; JONATHAN H. 

ADLER, JOHAN VERHEIJ MEMORIAL PROFESSOR OF LAW 

AND DIRECTOR, CENTER FOR BUSINESS LAW AND REGULATION, CASE WESTERN UNIVERSITY SCHOOL OF LAW; RICHARD REVESZ, LAWRENCE KING PROFESSOR OF LAW AND 

DEAN EMERITUS, NEW YORK UNIVERSITY SCHOOL OF LAW; 

AND RENA STEINZOR, PROFESSOR, UNIVERSITY OF MARYLAND SCHOOL OF LAW, AND PRESIDENT, CENTER FOR PROGRESSIVE REFORM 

STATEMENT OF ROBERT MELTZ 

Mr. MELTZ. Mr. Chairman and members of the subcommittee, 

CRS is pleased to assist the subcommittee with its inquiry into the 

appropriate allocation of responsibilities in Federal environmental 

programs between Federal and State Governments. 

I am an attorney with the American Law Division of CRS, where 

I specialize in environmental law. I am going to summarize my formal statement, reviewing the constitutional constraints imposed on 

Congress by current Commerce Clause and 10th Amendment jurisprudence in crafting environmental legislation. 

To cut to the chase, the Commerce Clause and the 10th Amendment, as currently construed by the Supreme Court, impose as a 

practical matter few significant constraints on Congress’ legislating 

in the environmental area. I will start with Congress’ power to regulate commerce among the several States, the basis of not only 

most Federal environmental laws but also much of the social and 

economic legislation enacted by Congress. 

Supreme Court decisions hold that Congress’ commerce power allows it to regulate the channels and the instrumentalities of interstate commerce and, by far the most debated category, activities, 

even intrastate activities, that substantially affect interstate commerce either individually or in the aggregate. 

The Court has strongly suggested that only economic activity 

may be aggregated to show a substantial effect on interstate commerce, but what is economic is very broadly construed—not so 

broadly, however, as to have kept the Court from invalidating congressional enactments in 1995 and 2000, triggering speculation 

that certain Federal environmental laws might being on precarious 

constitutional footing, though in 2005 the speculation subsided a 

bit when a Supreme Court decision stressed that even noneconomic 

intrastate activity can be regulated by Congress if failure to do so 

would undercut interstate regulation. 

Federal environmental laws, by and large, have fared well 

against Commerce Clause challenges. After the Supreme Court’s 

decisions in 1995 and 2000, the vulnerabilities were suggested in 

the non-intrastate applications of several of these laws: the Clean 

Air Act, the Clean Water Act, the Safe Drinking Water Act, the 

Superfund Act, and the Endangered Species Act. Yet the overwhelming majority of Commerce Clause challenges to Federal environmental laws were rejected by the lower courts, six out of six in 

the case of the Endangered Species Act, all with cert denials by the 

Supreme Court. 

9 

Some of these decisions arguably are hard to reconcile with the 

Supreme Court’s Commerce Clause jurisprudence. To hazard a theory, it may be that the courts implicitly recognize the nationwide 

interconnectedness of environmental problems and the consequent 

need for broad Federal involvement. Or perhaps the courts simply 

are not ready to chip away at Federal environmental laws on the 

chance it would open to Commerce Clause attack other areas of 

Federal law, such as the civil rights laws and criminal laws. 

Turning to the 10th Amendment, that amendment says that the 

powers not delegated to the Federal Government are reserved to 

the States or to the people. During the same period when the Court 

was setting out Commerce Clause limits on Federal power, it came 

to see in the 10th Amendment a bulwark of State sovereignty. Supreme Court decisions during this time, the 1990s, held that Congress can compel actions of State legislatures or actions of State executive branch officials in their sovereign capacity. 

At the same time, the Supreme Court has been explicit that Congress may constitutionally encourage, though not compel, States to 

participate in Federal environmental programs. Congress may attach conditions on States receiving Federal money, with some constraints. Congress may offer States a choice between regulating according to Federal standards or having State law preempted by 

Federal regulation or having a Federal plan imposed, as by EPA. 

Congress also may authorize sanctions triggered by State inaction but applying solely to private activity, such as the emission 

offset sanction in the Clean Air Act. And the 10th Amendment is 

not implicated when the State itself engages in an activity that 

Congress legitimately may regulate, as when a county operates a 

solid-waste landfill. As with the Commerce Clause, 10th Amendment challenges to Federal environmental laws have rarely succeeded. 

So, in sum, Federal environmental programs largely have withstood both Commerce Clause and 10th Amendment challenge. And, 

barring a shift in the jurisprudence, the key considerations in how 

to divide Federal and State responsibilities in a Federal environmental program are likely to fall in the policy realm rather than 

the constitutional one. 

Thank you for the opportunity to testify, and I look forward to 

your questions. 

[The prepared statement of Mr. Meltz follows:] 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

Mr. SHIMKUS. Thank you, sir. 

The Chair now turns to Mr. Adler. Sir, you are recognized for 5 

minutes. 

STATEMENT OF JONATHAN H. ADLER 

Mr. ADLER. Thank you, Mr. Chairman and members of this committee. I appreciate the opportunity to address the constitutional 

constraints on environmental regulation, a subject which I have 

studied now for close to 2 decades. 

It is a fundamental principle of our constitutional order that the 

Federal Government is one of limited and enumerated powers, and 

those powers not delegated to the Federal Government are reserved 

to the States and to the people. 

All Federal laws, no matter their value or purpose, must be enacted pursuant to the Federal Government’s enumerated powers 

and may not transgress other constitutional constraints. This is 

true whether we are talking about national security, health care, 

or environmental protection. 

While Federal power is broad—and it certainly is, especially as 

interpreted by the Court’s precedents—it is not infinite. The Supreme Court has made clear, including in very recent cases such 

as NFIB v. Sebelius and in the unanimous judgment this spring in 

Bond v. United States, that it will enforce limits on Federal power, 

it will invalidate laws that exceed those constitutional limits, and 

it will also construe statutes narrowly if that is necessary to avoid 

difficult constitutional questions—something the Supreme Court 

has done twice with the Clean Water Act when regulations reaching wetlands and intrastate waters pushed the bounds of Federal 

authority to regulate commerce among the States. 

Several environmental statutes and regulations, both on the 

books and proposed, raise serious constitutional questions that 

courts will have to address in the wake of decisions like NFIB, and 

these are also questions that Congress should consider. Because 

whether a statute or a regulation is constitutional is not solely a 

question for the courts; it is also a question for the legislative 

branch and something the legislative branch should consider when 

evaluating proposals for legislation. 

Now, constitutional limits on Federal power need not come at the 

expense of environmental protection. The division of authority between the Federal and State Governments counsels that Congress 

think careful about the nature and scope of Federal environmental 

regulation. Fiscal constraints and the inherent limits of centralized 

regulatory structures reinforce the wisdom of focusing Federal efforts on those areas where the Federal Government may do the 

most good. 

The EPA cannot and should not try to address every environmental problem or concern that this Nation faces. It has neither 

the time nor the resources to do so. The Federal Government 

should instead concentrate its efforts in those areas where the Federal Government has a comparative advantage or where the separate States are unlikely to be able to address environmental concerns adequately. 

This is true in the case of interstate spillovers. This is true in 

cases where there are serious economies of scale in Federal interVerDate Mar 15 2010 11:21 Jul 09, 2015 Jkt 037690 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 F:\113THCONGRESS\113_159STATEFEDPOLICYASKOK021015\113159STATEFEDPOLICY
27 

ventions. It is not true in the context of localized environmental 

problems that have relatively localized causes and localized effects. 

And if one looks at the U.S. Code, that describes much of Federal 

environmental regulation. 

When it comes to developing and enforcing environmental standards for localized environmental concerns, the case for Federal 

intervention is comparatively weak. And if we want the Federal 

Government to do more to address things like interstate spillovers 

where there are economies of scale, we have to think seriously 

about what we might take off the EPA’s plate so that it has the 

time and the resources to address these new and emerging problems. 

And it is not coincidental that the Constitution constrains Federal efforts to reach some localized environmental concerns. There 

are some environmental problems that are very real but that do 

not contain the necessary connection to commerce or to other 

nexuses of Federal power to justify the exercise of Federal regulatory authority. 

Again, however, constitutional constraints need not compromise 

environmental protection any more than constitutional constraints 

compromise our Nation’s ability and efforts to protect our national 

security or advance other important goals. 

Insofar as the Constitution encourages policymakers to think 

carefully about the comparative strengths and weaknesses of Federal intervention, it may actually enhance this Nation’s system of 

environmental protection, as it helps ensure that Federal resources 

are focused and targeted in those areas where Federal intervention 

can do the most good. 

Thank you again for your invitation today, and I look forward to 

any questions you might have. 

[The prepared statement of Mr. Adler follows:] 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

Mr. SHIMKUS. Thank you. 

And the Chair now recognizes Mr. Revesz for 5 minutes. 

STATEMENT OF RICHARD REVESZ 

Mr. REVESZ. Thank you, Mr. Chairman and members of the subcommittee. I am Richard Revesz from the New York University 

School of Law. I also serve as the director of the American Law Institute. 

I have written extensively in the area of federalism and environmental regulation, mostly in the matter of the policy domain, when 

should Congress act when it has the power to do so. I have not 

written as extensively in the constitutional domain but generally 

share the views of Mr. Meltz that the constitutional limits, while 

they definitely exist, leave a great scope of—a great domain for action from Congress. So many of the important questions are questions of when Congress should decide to exercise that authority, 

rather than does Congress actually have that authority. 

Mr. SHIMKUS. Excuse me. Could you make sure your mike is on 

and that it is pulled close to you? 

Mr. REVESZ. I am sorry. 

Mr. SHIMKUS. That is OK. We have some old guys up here, and 

I could hear you fine, but—— 

Mr. REVESZ. I will focus on three matters in this testimony. 

First, the presence of interstate externalities provides the most 

compelling argument for Federal regulation. A State that sends 

pollution to another State obtains the labor and fiscal benefits of 

the economic activity that generates that pollution but does not 

suffer the full cost of the activity because the adverse health and 

environmental consequences are suffered by other States. As a result, a suboptimally large amount of pollution crosses State lines. 

But the fact that some form of Federal regulation is necessary 

to properly control interstate externalities does not mean that any 

type of Federal regulation is well-suited for the task. The Clean Air 

Act provides a compelling example of this problem. Even though it 

has been in effect since 1970, we still have not properly succeeded 

at controlling interstate pollution. 

Let me give you two bookends. The first significant litigated case 

in this area was Air Pollution Control District of Jefferson County 

v. EPA and was decided by the Court of Appeals for the Sixth Circuit in 1984. Interestingly, at that time, Mitch McConnell, the current Senate minority leader, was the judge/executive for Jefferson 

County, Kentucky, which brought this action to try to compel Indiana to reduce its interstate externalities. 

Kentucky actually controlled its local power plant very stringently, and that power plant had at the time spent $138 million 

in pollution control, which would be more than $300 million in today’s dollars. But Jefferson County, despite having done that, was 

not able to obtain the benefits of the regulation because prevailing 

winds from Indiana deposited in Jefferson County pollution from 

an Indiana plant that was essentially uncontrolled. The Kentucky 

plant emitted 1.2 pounds of sulphur dioxide per million BTU of 

heat input, and the Indiana plant emitted 6 pounds—five times as 

much. 

49 

Jefferson County was actually unsuccessful in that case in its effort to compel the U.S. Environmental Protection Agency to order 

the reduction in the Indiana emissions. And, in fact, it wasn’t until 

more than 30 years later, until this past April, when the U.S. Supreme Court, in EPA v. EME Homer City Generation, held that 

under the good-neighbor provision of the Clean Air Act the pollution control burden to upwind and downwind States could be allocated in a way that minimized the overall cost of meeting the Federal ambient standards. 

This cost-minimization formula strikes me as eminently rational, 

and the court decided this on a six-two vote. If this rule had been 

in effect in 1984, then-Judge/Executive Mitch McConnell’s citizens 

would have gotten the Federal redress that they had sought and 

that they actually deserved. 

My second point: The issue of interstate externalities is now 

being raised by a more recent environmental problem arising from 

hydraulic fracturing, or fracking, which is a technique used to extract oil and natural gas from shale. 

Some of the environmental ills from fracking, such as increased 

seismic activity and groundwater contamination, are localized. But 

at least one significant consequence of fracking, the emission of fugitive methane, can wreak harm far from the wellhead. Fugitive 

methane’s interstate and, indeed, international impacts make it 

particularly well-suited for Federal regulation. 

Methane, as you know, is a potent greenhouse gas with an estimated global-warming potential 21 to 25 times greater than that 

of carbon dioxide. Natural gas itself is composed of more than 80 

percent methane, and, during the production and distribution processes, some portion of methane leaks or is vented into the atmosphere. While fugitive methane emissions can result from all drilling techniques, some studies suggest that fracking is associated 

with significantly higher leakage rates. 

Like carbon dioxide, methane emissions become well mixed in 

the upper atmosphere, making their harmful effects global rather 

than local. 

The U.S. Environmental Protection Agency recently began the 

process of regulating greenhouse gas emissions associated with the 

ultimate combustion of natural gas by proposing performance 

standards for new and existing power plants. Those standards, 

however, will do nothing to reduce pollution emitted at earlier 

stages in the gas’ life cycle, including extraction, processing, storage, and delivery. Such upstream emissions can be quite significant, accounting for 20 to 30 percent of the natural gas life cycle 

emissions. 

My last point refers to a related question: When, if ever, should 

the Federal Government preempt more stringent State standards? 

So the most compelling argument for doing that is in the case of 

product standards where there are products that exhibit significant 

economies of scale in production. If these products were subjected 

to inconsistent State standards, those economies of scale would be 

lost. 

And the most compelling example of this case are automobiles. 

And, in fact, for the most part, we do have uniform auto standards. 

In fact, we have two in the country; we have the Federal standVerDate Mar 15 2010 11:21 Jul 09, 2015 Jkt 037690 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 F:\113THCONGRESS\113_159STATEFEDPOLICYASKOK021015\113159STATEFEDPOLICY
50 

ards, and we have the California standards, and States can opt for 

one or the other but can’t choose anything in between. 

There are other products that exhibit significant economies of 

scale in production, but not all products do. And where products 

don’t exhibit those economies of scale, the argument for Federal 

preemption of more stringent State standards is much weaker. 

The argument for Federal preemption of more stringent State 

standards is even weaker in the case of—— 

Mr. SHIMKUS. We are going to have to get you to wrap up. 

Mr. REVESZ. Yes, I—— 

Mr. SHIMKUS. I know you are very close. 

Mr. REVESZ. I am done, basically. 

In the case of process standards, because inconsistent process 

standards do not impede the proper trading of products in a national market. 

And, with that, my summary is done, and I am happy to at some 

point take your questions. 

[The prepared statement of Mr. Revesz follows:] 

51 

52 

53 

54 

55 

56 

57 

58 

59 

Mr. SHIMKUS. Thank you, sir. 

Now we will turn to Rena Steinzor, a professor from the University of Maryland. 

Welcome back, and you are recognized for 5 minutes. 

STATEMENT OF RENA STEINZOR 

Ms. STEINZOR. Mr. Chairman, Ranking Member Tonko, and 

members of the subcommittee, I appreciate the opportunity to testify today on cooperative federalism, which is the term used to describe—— 

Mr. SHIMKUS. Can you check your mike also or pull it closer? 

Ms. STEINZOR [continuing]. The constitutional and the political 

policy and legal relationship between the Federal and State Governments with respect to environmental policies and law. 

As I understand the situation, the subcommittee’s leadership 

called this hearing in part to explore the contradiction between the 

notion that legislation to reauthorize the Toxic Substances Control 

Act should preempt any State authority to regulate chemical products with the notion that the Federal Government shoulddepend on 

the States to regulate coal ash and has no role to play in protecting 

the public from such threats. 

These positions are a dichotomy if there ever was one. The contradictory ideas that the Federal Government must dominate the 

field in one area but that State Government should be exclusively 

in control in another seems irreconcilable as a matter of principle. 

Of course, as a practical matter, these irreconcilable positions 

have consistent pragmatic outcomes: They help big business. The 

chemical industry feels much more confident about its ability to 

browbeat the EPA into quiescence under the weak provisions of the 

TSCA legislation under discussion so long as proactive States like 

California are knocked out of the equation. The electric power industry is much happier submitting to State regulators, who, as the 

recent spill in North Carolina clearly illustrates, have done almost 

nothing to control the severe hazards of improper coal-ash disposal. 

Or, in other words, States should prevail as long as they aren’t 

doing much to gore the ox of big business. 

This debate has been going on in one iteration or another for decades. Congress has grappled with it. The Supreme Court has grappled with it. The States have participated in the debate, as has the 

executive branch. And out of all this intense debate have come two 

fundamental principles well-recognized by mainstream constitutional scholars: 

One, the wide range of Federal programs dealing with health, 

safety, and the environment are grounded appropriately in the 

Commerce Clause. While the Supreme Court has imposed some 

limits on Federal authority, they do not apply to the structure of 

Federal environmental law. 

Two, a coherent set of eminently reasonable principles defines 

the cooperative partnership that prevails in the health, safety, and 

environmental areas. 

So what are those principles? As everyone has said, pollution 

does not stop at State lines, and, in many cases, strong Federal 

laws are the only way to control so-called transboundary pollution. 

My State, Maryland, suffers tremendously from transported polluVerDate Mar 15 2010 11:21 Jul 09, 2015 Jkt 037690 PO 00000 Frm 00063 Fmt 6633 Sfmt 6633 F:\113THCONGRESS\113_159STATEFEDPOLICYASKOK021015\113159STATEFEDPOLICY
60 

tion from Ohio. Coal-fired power plants is just one example. We actually send a plane up every time those emissions increase because 

the State agency is so anxious to demonstrate that it can’t control 

this pollution. 

But there are other principles. A second one is that uniform national standards crafted by the Nation’s best and brightest technical experts are efficient, avoiding the need to reinvent the wheel 

50 times. 

A third and very important one is that all citizens should receive 

equal protection under the law. That is, everyone should be able to 

expect a minimal set of effective safeguards no matter what State 

they happen to live in. 

Businesses should compete on a level playing field. If they operate in States that choose strong protections, they should not be undercut by businesses operating in States that choose weak protections. And States should avoid a race to the bottom in competing 

for new industry. 

It is easy to write a law, as you know, and much harder to make 

sure it is implemented and enforced fairly and aggressively 

throughout our vast country. Governments at all levels struggle to 

be effective and efficient and must remain accountable to their citizens. In areas as important as protecting public health and the environment, everyone, no matter where they live, deserves equal 

protection. Making States responsible for delivering on this crucial 

goal is a key part of EPA’s mission. 

Thank you. 

[The prepared statement of Ms. Steinzor follows:] 

61 

62 

63 

64 

65 

66 

67 

68 

69 

70 

71 

72 

73 

74 

75 

76 

77 

78 

79 

80 

Mr. SHIMKUS. Thank you, Ms. Steinzor. 

I am going to start just by making a statement. You made some 

assumptions as to why or why we didn’t call this hearing, but I 

don’t remember you ever asking me, the chairman of the subcommittee, why I called it. So just in future times you come before 

us, if you want to know why, come ask me. Don’t make an assumption and weave a story that may or may not be true. 

Mr. Meltz, for nonlawyers like me, could you please explain the 

difference between the Supremacy Clause and the Commerce 

Clause and how preemption in Federal environmental law is constitutionally based? 

Mr. MELTZ. Well, the Supremacy Clause in Article 6 says that 

the Federal law is the supreme law of the land, so that when there 

is a conflict, either express or implied or in fact, the non-Federal 

law has to give way to the Federal prescription. 

Preemption considerations arise in just about every Federal environmental law I have ever encountered. In fact, I have a CRS report compiling all the preemption provisions in all the environmental statutes, and they run the gamut from total preemption— 

a State cannot act, and there is no waiver even—all the way to the 

other extreme, where the State has complete freedom to do what 

it wishes, whether or not the Federal Government acts. 

So, depending on the circumstances, Congress has seen the full 

gamut of possibilities appropriate. 

Mr. SHIMKUS. Hence the dilemma and why we have you here 

today, to help us try to figure out that. 

Professor Adler, how is it that in some ways an historical accident—that is, leadership in environmental policy—was supplanted 

by Federal regulation? 

Mr. ADLER. That is a long subject, and—— 

Mr. SHIMKUS. Well, don’t be too long. 

Mr. ADLER. Yes. And given that I live in Cleveland, it is a somewhat of a, I guess, a personal subject given that an infamous fire 

on the Cuyahoga River is often credited with helping to drive the 

enactment of many Federal environmental statutes. 

And just to use as an example, that event in June of 1969 was 

seen as evidence that most measures of environmental quality were 

getting much worse, that State and local governments were not acting, and that, therefore, Federal intervention was necessary. 

But when one looks at the historical record, that, in fact, isn’t 

true. If one just looks at the case of river fires, river fires on the 

Cuyahoga River, in Michigan and Pennsylvania and Maryland, all 

throughout the country, had actually at one point been common 

throughout the late 19th and early 20th century. Rivers used for 

industrial purposes were often dumping grounds for various flammable and other wastes. And it was a problem that was easily 

identified and one that State and local governments readily addressed. 

If one looks at water pollution more generally, one sees that 

States in the 1960s were becoming very active in enacting water 

pollution control statutes. We see a similar pattern in air. California, in particular, was quite aggressive. And measures of things 

like ambient air quality for the pollutants with the greatest health 

81 

effects that were understood at the time were actually declining before Federal environmental statutes were enacted. 

So whether we think these Federal environmental statutes are 

good or bad as a matter of policy, the general story that we tell, 

that they were necessary to stem a precipitous decline in environmental quality that was occurring in the late 20th century, just 

doesn’t square with the actual historical record. 

Mr. SHIMKUS. So is it safe to say that it is under your opinion 

that the environmental policy might be improved if States regained 

a more historic role? 

Mr. ADLER. Sure. I think that if both State Governments and the 

Federal Government are able to focus on those areas where they 

have comparative advantage, we would improve the overall levels 

of environmental protection. It would be both more efficient and 

more effective. 

In areas like interstate spillovers, as has already been discussed, 

the downwind State can’t do anything about an upwind State’s pollution. And as we look at the history of things like the Clean Air 

Act, those sorts of concerns have been the focus of a tiny fraction 

of EPA’s time and effort and a tiny fraction of what is actually in 

the U.S. Code. 

And if we stood back and actually tried to rationalize where is 

Federal intervention truly necessary and where can State and local 

governments take the lead, I think we would have a more rational, 

more efficient, less costly, and more effective approach to environmental protection. 

Mr. SHIMKUS. Thank you. 

Professor Revesz, you noted at the end of your statement about 

the national fuel efficiency standard for cars, California differently 

from other States, but you did not seem to defend the decision with 

the policy on constitutional rationale. Do you have one? 

Mr. REVESZ. The decision for California to have different standards than the Federal standards? 

Mr. SHIMKUS. Yes, sir. 

Mr. REVESZ. It is a historical accident. I mean, clearly, Congress 

has the authority to allow States to do that. I don’t think there is 

any serious constitutional argument that somehow or other once 

the Federal Government acts it needs to preempt more stringent 

State standards. 

The reason the California standards are more stringent is because in 1970, when the Clean Air Act was enacted, California already had State standards for automobiles, and Congress decided 

not to preempt those standards and did it as a matter of policy. 

And it was actually not—— 

Mr. SHIMKUS. Yes, let me just jump in. Do you think it is fair 

for Congress to discriminate among States in its regulation of trade 

in the same articles? 

Mr. REVESZ. Well, as a practical matter, Congress gave other 

States the choice to choose the California standards or the Federal 

standards. So, basically, every State could do something. It is true 

that they couldn’t pick other standards. 

But I think Congress had good reason for doing that, and I think 

it is definitely constitutional for Congress to do it. I don’t think 

there is a serious constitutional argument that would stand in the 

82 

way of Congress making those distinctions if it thought that they 

were good as a matter of policy. They would need to think they are 

good as a matter of policy for this to actually be a good idea. 

I think in that particular case, given the history of that provision, it made sense for Congress in 1970 to do what it did. And it 

was not a controversial issue then; there was strong bipartisan 

support for that provision. 

Mr. SHIMKUS. Great. Thank you. 

The Chair now recognizes Mr. Tonko for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. 

On many issues within this subcommittee’s jurisdiction, the 

States have led the way. When risks are not adequately addressed 

at the Federal level, State protections are essential. My home State 

of New York has taken significant steps to protect its citizens and 

its resources from DDT, MTBE, flame retardants, risks posed by 

hydraulic fracturing, or fracking. 

I served in the New York State Assembly for some 25 years, so 

I have a strong appreciation for the work of State Governments to 

protect the environment. But there is also an important role for the 

Federal Government in environmental protection, ensuring a minimum level of protection for all citizens. A cooperative approach, 

where the Federal Government sets a floor and States remain free 

to set more stringent standards, has proven effective and successful. 

Ms. Steinzor, can you briefly describe the principles of cooperative federalism in environmental law, please? 

Ms. STEINZOR. Yes. 

Environmental law has set up a system where the States can 

apply to be delegated to have authority to implement the law. As 

was mentioned earlier, 96 percent of the environmental programs 

covered by these laws have been delegated to the States. 

So EPA sets the Federal standards by which we operate, and 

then the States implement the law. Most of these laws say the 

States can enact more stringent provisions if they want to. And the 

States also receive financial support for implementing their programs. 

Because the States are volunteering to do this, there are no constitutional impediments. The main impediment, constitutionally, is 

that the Federal Government is not allowed to commandeer a State 

Government’s resources. And we saw that in the New York v. 

United States case that I mentioned in my written testimony. 

Mr. TONKO. Uh-huh. 

Ms. STEINZOR. So what we have is a situation where the States 

and the Federal Government have gotten married, and, like most 

marriages, there are points of friction and differences. I am not 

going to pretend that these partnerships are always happy, especially when there is money lacking. And I think that is a problem 

at both the Federal- and the State-level resources. 

Mr. TONKO. Thank you. 

Have recent proposals from this committee comported with those 

principles? 

Ms. STEINZOR. I actually do not think that the effort to preempt 

all State law under the Toxic Substances Control Act is consistent 

with those principles. The Toxic Substances Control Act is impleVerDate Mar 15 2010 11:21 Jul 09, 2015 Jkt 037690 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 F:\113THCONGRESS\113_159STATEFEDPOLICYASKOK021015\113159STATEFEDPOLICY
83 

mented primarily by EPA, but States are allowed to do more stringent laws, as you just mentioned. 

And the States resent become being preempted precisely because 

of what Professor Adler said, which is that they want to make sure 

that they are not following a one-size-fits-all, they want to tailor 

the requirements, and so they home in on problems that are specific to their State and take whatever action they think appropriate. 

And you have a letter from attorneys general in several States 

that is attached to my written testimony that explains these principles. 

Mr. TONKO. Uh-huh. 

Well, I was particularly concerned by the preemption provisions 

in the majority’s draft bill to amend TSCA, as you focused on that 

issue. The draft bill could have had widespread impacts on State 

laws, including laws on fracking. More than 20 States have new 

enacted laws or regulations requiring some level of public disclosure of the chemical contents of hydraulic fracturing fluids. Other 

States have successfully imposed requirements for groundwater 

testing and restrictions on disposal of flow-back water and even 

prohibitions on the use of certain chemicals. 

Ms. Steinzor, does the Commerce Clause require that preemption? 

Ms. STEINZOR. Absolutely not. 

Mr. TONKO. Is there any constitutional provision that necessitates that preemption? 

Ms. STEINZOR. Absolutely not. 

Mr. TONKO. Do you have concerns about the effects of broad preemption in TSCA reform on State fracking laws and other environmental protections? 

Ms. STEINZOR. Yes, I do. I think that it would be extremely unwise to stifle the States in this way and that actually preempting 

them in such a harsh manner contradicts all the other discussion 

about letting them have a greater role in environmental protection. 

Right now, we have a cooperative partnership. This would make 

the partnership completely one-sided and kick them out of the 

field. 

And fracking is just an example of an emerging problem where 

they have been able—as we have called them in the past, laboratories of democracy—they have been able to step forward and be 

creative and lead the way for the Federal Government. 

Mr. TONKO. Thank you very much. 

I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. 

For the sake of keeping peace on my side, the Chair is to recognize Mr. Whitfield, but I am going to ask unanimous consent that 

the gentleman from West Virginia go out of order for his 5 minutes. 

Is there objection? 

OK. The Chair recognizes the gentleman from Kentucky. 

Mr. WHITFIELD. You all are so nice. Thank you very much. 

Well, I would like to thank the panel for being here today. 

And I am going to approach this a little differently. As you know, 

President Obama has been under a lot of criticism lately of deciding which laws he will try to prosecute and which laws he will not 

84 

prosecute. And, as you know, the House of Representatives now is 

considering a lawsuit, but because of the standing issue, it is very 

difficult to bring those lawsuits on the behalf of Congress as an institution. 

But what made me think a little bit about this was Ms. Steinzor, 

in her opening statement, talked about the unreconcilable positions 

that Congress is in right now as it approaches reauthorization of 

TSCA, doing one thing, and addressing the coal-ash-regulation 

issue by doing another thing. And she said that the only—to read 

her language here, ‘‘They have consistent pragmatic outcomes. 

These are unreconcilable positions, and the only outcome is that 

they help big business.’’ So the assumption here is that the Republican Congress is doing this because it helps big business. 

Well, it raised an issue with me, in that she is talking about two 

laws here, that we have not reauthorized TSCA yet, and we have 

not been able to pass legislation the way we would like to on coal 

ash yet by the Congress. 

But the Migratory Bird Act, for example, is a Federal law, and 

there is a Federal law that protects golden eagles and bald eagles. 

And yet this administration, with the spill in the Gulf in the latter 

part of the Bush administration, the Federal Government instituted a fine of $100 million against British Petroleum for killing 

migratory birds in that spill. And yet this administration has 

granted an exemption from the Migratory Bird Act and the Golden 

and Bald Eagle Protection Act to windmills. 

So it appears that this administration, rather than just being in 

favor of big business in general, it is determined upon whether or 

not they like the big business. And, for example, Google is a large 

company that is taking advantage of some Federal tax codes to invest in the wind industry. 

And so, for this administration to basically say we are not going 

to enforce, we are going to grant exemptions to certain big businesses from the Migratory Bird Act and the Golden and Bald Eagle 

Protection Act—I would ask if any of you would like to make a 

comment on that, how this administration has—we have two Federal laws, and this administration has affirmatively said we are 

going to grant exemptions from these Federal laws for certain industries that we agree with what they are doing. 

You don’t have to comment. 

Mr. SHIMKUS. You can offer to answer it, or you can pass. 

Mr. ADLER. I will just say briefly that, as a general matter, if the 

executive branch believes that certain industries or activities 

should be exempt from Federal regulation, as it is currently written, they should either, if it is legal, redraft the existing regulations and repromulgate them or they should ask Congress to 

amend the law, and that disparate application of existing laws and 

regulations to different industries based on their political or other 

characteristics is not the sort of thing any executive branch should 

engage in. 

Mr. SHIMKUS. The gentleman from Kentucky? 

Mr. WHITFIELD. I yield back. 

Mr. SHIMKUS. The gentleman yields back the time. 

The Chair now recognizes the gentleman from Texas, Mr. Green, 

for 5 minutes. 

85 

Mr. GREEN. Thank you, Mr. Chairman, for holding the hearing 

today on this important issue. 

I would like to also thank our distinguished panelists for joining 

us this morning. 

States play an essential role in environmental regulation, creating specific requirements to reflect the reality of circumstances in 

each State. But there is an important role for the Federal Government as a partner. 

Like my colleague from New York, I served 20 years in the State 

legislature in Texas and am familiar with our relationship with 

EPA and TCEQ. I used to joke, it must be in Texas’ DNA to complain about the EPA literally from my first term in 1973. But this 

issue, it has been cooperative. 

In fact, one of my frustrations 2 years ago, that the State of 

Texas decided not to issue carbon-based permits because of politics, 

and so we ended up having them issued through EPA, which delayed those permits months, if not years. We are working through 

that backlog. The most recent legislative session corrected that. 

And so now our Texas Environmental Quality Commission is actually doing what they should be doing, because it is a cooperative 

basis. 

Mr. Meltz, do you agree that, generally, environmental regulation is done in a partnership with States and the Federal Government? 

Mr. MELTZ. I agree that that has been the pattern of Federal enactments, and—— 

Mr. GREEN. OK. Yes, generally, EPA sets some standards, and 

the State then negotiates with the EPA on how they can reach 

those standards. 

Mr. MELTZ. With many of the statutes, not all, yes. 

Mr. GREEN. Is there anything in the Constitution or caselaw that 

says regulation can’t be done that way, as a partnership? 

Mr. MELTZ. Nothing in the Constitution, no. 

Mr. GREEN. OK. 

I would like to turn a minute to the Superfund statute, which 

has played an important role in our district in cleaning up the San 

Jacinto Waste Pits. Our office has worked with both the State of 

Texas and Harris County and EPA to get that site listed on the national priority list. And, most recently, we sent a letter to EPA calling for more environmental protective remediation to be taken at 

the site. This is a clear example of local and Federal officials working together to protect a local community and ensure that taxpayers don’t bear that cleanup cost. 

Mr. Meltz, in your testimony, you mentioned that challenges 

have been brought alleging that Superfund and other environmental statutes were not authorized by the Commerce Clause. Is 

that correct? 

Mr. MELTZ. Yes. That has been—yes. Several statutes. 

Mr. GREEN. OK. And courts have found these statutes, including 

Superfund, are constitutional, correct? 

Mr. MELTZ. Yes. The one exception has been the challenges to 

the Corps and EPA, expansive definition of waters of the United 

States under the Clean Water Act to include isolated waters and 

remote adjacent wetlands, yes. 

86 

Mr. GREEN. OK. 

You know, again, my experience, both as a State legislator and 

in Congress, when there was a need for a Superfund site, I was actually first approached by the State of Texas. And I know there 

were some issues a few months ago in Congress about, you know, 

the States not being a part of it. Believe me, we have a dioxin facility that was there before we had an EPA. And our States are typically the ones that are more proactive, at least in Texas. 

Now turning to Ms. Steinzor, do you agree that the constitutional 

footing of the Superfund is strong? 

Ms. STEINZOR. The—I am sorry, sir. 

Mr. GREEN. The constitutional footing of the Superfund—— 

Ms. STEINZOR. Yes. 

Mr. GREEN [continuing]. Is strong. 

Ms. STEINZOR. I do agree to that. 

Mr. GREEN. OK. I have a few questions for Mr. Revesz. 

Mr. Revesz, in your testimony, you agreed that it is prudent policy of the Federal Government to preempt State regulation on 

goods that exhibit significant economies of scale and production, 

such as cars and pesticides. 

Mr. REVESZ. That is right. 

Mr. GREEN. OK. Do you believe that industrial chemicals such as 

those that are regulated under the Toxic Substance Control Act 

also exhibit significant economies of scale and production? 

Mr. REVESZ. It is an empirical question. Many probably don’t. 

Some might. 

And I think to justify preemption and to display State autonomy, 

to display the State’s ability to protect their citizens at a level that 

is more stringent than what the Federal Government can do nationwide is a big decision and should only be done if the empirical 

evidence is very compelling. 

I believe, in the case of cars, it is quite compelling, and Congress 

has acted accordingly since 1970. I don’t think it is compelling in 

the case of every product. 

I don’t think it is compelling in the case of every product that 

is regulated under the Toxic Substance Control Act. So I don’t 

think that across-the-board preemptions without empirical justification would be justified. 

Mr. GREEN. Well, do you believe that industrial chemicals such 

as under the Toxic Control Act—would you agree that the argument for Federal preemption in a State regulation is strongest 

when its Federal standards are regulating the consequences of 

these products themselves? 

Mr. REVESZ. Well, I think we are talking about a situation where 

there is Federal regulation—Federal substantive regulation and 

where the States are trying to regulate the same product in a more 

stringent way. 

Clearly, less stringent State regulations would be preempted. So 

if the States are trying to regulate the same product in a more 

stringent way, the propriety of Federal preemption would depend 

on the strength of these economies of scale. 

And it is—as a result, it is not a question that can really be answered across the board. It would have to be examined, basically, 

industry by industry or compound by compound. 

87 

Mr. GREEN. Mr. Chairman, I appreciate your patience. Although, 

if we are going to do cars, then why shouldn’t we do bleaches and 

other things that have some national standard? 

I yield back. 

Mr. SHIMKUS. The gentleman yields back his time. 

The Chair now recognizes the gentleman from Ohio, Mr. Latta, 

for 5 minutes. 

Does the gentleman from Ohio want to go? 

Mr. LATTA. Mr. Chairman, I thought you said you were recognizing the—— 

Mr. SHIMKUS. No. Let’s go. We are running out of time. 

Mr. LATTA. Thank you very much, Mr. Chairman. 

Professor Adler, if I could start the question with you. 

In your testimony, you discussed a proposed policy of ecological 

forbearance under which States could petition Federal agencies for 

waivers from Federal requirements where there are no compelling 

reasons to enforce the Federal rule. 

Can you think of a current example where this would be applicable in the State of Ohio or elsewhere? 

Mr. ADLER. Well, I think there are lots of areas where State regulators have complained that they are forced, as part of the existing regulatory structure, to devote time and resources to meeting 

standards or fulfilling requirements that aren’t of particular importance in that State. 

One of the most obvious areas where this occurs is under the 

Safe Drinking Water Act where you have requirements to test for 

certain substances or to bring levels of certain contaminants below 

Federally approved levels. That may or may not be the greatest 

concern in particular local areas. 

And sometimes this has led to some States even challenging the 

listing of such substances. The State of Nebraska, for example, 

challenged the tightening of Federal standards for arsenic, arguing 

both that this was not a serious health concern for people in Nebraska, but, secondly, insofar as this would increase the costs of 

providing water through regulated water systems, this would drive 

many consumers, particularly those in lower incomes, to opt out of 

using water systems and use unregulated well water, which in 

many cases would actually be more risk—more dangerous to public 

health. 

Nebraska, therefore, sued, arguing—and it failed in its lawsuit, 

but I think that is an example of where States will sometimes have 

very good reasons for wanting to devote their resources to a different set of environmental priorities than what is specified under 

Federal law. 

And it would be good if there is a mechanism whereby States 

could seek relief from Federal requirements so that they may devote their resources in ways—or to problems that are of greater 

concern to their citizens and are in alignment with what the demands of local citizens are. 

We don’t now really have a mechanism that is very effective at 

doing that. And so, in my testimony, I suggest an idea that has 

also been suggested by Professor Farber at the University of California at Berkeley of one way of giving States the opportunity for 

that kind of flexibility. 

88 

Mr. LATTA. Let me follow up. 

Also, is there empirical evidence to support the assertion that 

leaving environmental regulation to the States will precipitate a 

race to the bottom? 

Mr. ADLER. No. There actually really isn’t such evidence. There 

is one study that relies upon survey data that shows that State 

regulators are responsive to competitive concerns, but that is not 

sufficient to show there is race to the bottom. 

Professor Revesz has written what is probably the seminal article on the theoretical arguments related to race to the bottom, I 

think showing quite compellingly that, as an analytical matter, the 

‘‘race to the bottom’’ theory rests on a lot of a assumptions that are 

hard to justify. 

As an empirical matter, I have done work in the area of wetlands, showing that the pattern of State wetland regulation prior 

to Federal regulation is the exact opposite of what the ‘‘race to the 

bottom theory’’ would predict. 

There is a significant amount of literature in both the economic 

literature and the political science literature looking empirically at 

patterns of State regulation, again showing that the patterns of 

State regulation are not consistent with the idea of a race to the 

bottom. 

And, in fact, there is some scholarship that suggests that States, 

in fact, learn from each other and that, when one State, whether 

it is California or New York or what have you, regulates more 

stringently or to enhance environmental protection, that neighboring States become more likely to follow suit and more likely to 

increase their levels of environmental protection as well as they 

learn from the positive experience of their neighbors. 

And then there is also some work—I have done some work and 

others have done work about suggesting that even non-preemptive 

Federal regulation alters the incentives that State regulators face 

and, in some cases, will discourage States from being innovative 

and being more aggressive and experimental in trying to address 

environmental problems because of the way it alters the political 

and other incentives for State action. 

So even non-preemptive Federal regulation can discourage States 

from being the laboratories of democracy that we would like them 

to be. 

Mr. LATTA. Thank you very much, Mr. Chairman. I yield back. 

Mr. SHIMKUS. The gentleman yields back. 

The Chair now recognizes the gentleman from California, Mr. 

McNerney. 

Mr. MCNERNEY. Thank you, Mr. Chairman. 

Mr. SHIMKUS. You are welcome. 

Mr. MCNERNEY. Ms. Steinzor, have you ever heard of the word 

‘‘chemical trespass’’—the term? 

Ms. STEINZOR. I am actually not familiar with that. 

Mr. MCNERNEY. OK. Professor Revesz, you discussed fracking 

and the fugitive emissions of methane. 

Is the commerce clause broad enough, in your opinion, to permit 

the EPA—or the Federal Government to regulate fugitive emissions of methane? 

89 

Mr. REVESZ. Oh, definitely. The—I mean, fugitive emissions of 

methane are an interstate problem. They are actually a global 

problem. They would affect the negotiating posture of the United 

States in climate change negotiations. 

I don’t think there is any plausible argument that would stand 

in the way of Congress choosing to act to regulate those emissions, 

should Congress choose to do that. 

And, moreover, I think that, because of the significant interjurisdiction externalities posed by fugitive emissions of methane as a 

matter of policy, there is a very compelling reason for congressional 

action. 

Mr. MCNERNEY. Thank you. 

Professor Steinzor, could you describe how the States and the 

Federal Government work together to implement Federal environmental programs. 

Ms. STEINZOR. Yes. The States have delegated authority to implement the programs so they work closely with EPA. EPA will set 

the minimum standards of what kind of protection is offered. 

And then the States write permits or otherwise take enforcement 

action against regulated entities to make sure they comply with 

those standards. 

And most of them are based on the protection of public health 

or the environment, and many have a cost-effectiveness requirement. 

Mr. MCNERNEY. Thank you. 

Mr. Meltz, regarding this model that was just described, in your 

opinion, does the case law call into question this model of environmental cooperation? 

Mr. MELTZ. Absolutely not. It is well established. It has been 

going on at least since 1970. And States, of course, have their own 

inherent police power to deal with these environmental problems. 

It is not that they get their authority to do so from the Federal 

Government. 

It is just that the Federal Government can set preemptive standards and then allow States to come in with their own programs and 

run the program within the State, if they would rather. But States 

have their own inherent authority, if not preempted. 

Ms. STEINZOR. That was a great clarification. 

Mr. MCNERNEY. I will yield the rest of my time to the gentlewoman from Colorado. 

Ms. DEGETTE. Thank you very much in the effort of efficiency. 

Mr. Chairman, first of all, I apologize for being late. We had a 

hearing upstairs on 21st Century Cures, which, as you know, I am 

the cochair with Chairman Upton. 

But I do want to take a minute to welcome Dean Revesz here. 

He is the dean of my alma mater—the dean emeritus of my alma 

mater, NYU law school, and he did a wonderful job when he was 

dean. 

Mr. SHIMKUS. That might make me reconsider a next invitation. 

So I am not sure that is helpful. 

Ms. DEGETTE. I knew that that would be, and that will save him 

a trip down here. So it is all good. 

Dean Revesz, I just wanted to ask a follow-up question to what 

you were talking to Mr. Green about, which is, really, the propriety 

90 

of the Federal Government preempting State laws. What you were 

saying is oftentimes it is an economy of scale issue and what is the 

specific State concern. 

I am wondering how we, as Congress, can take that sort of general principle into consideration as we really look at fracking legislation or Tosca or all of the other issues we have been talking 

about this morning. How do we weigh those equities? 

Mr. REVESZ. Well, it is a hard question, and you have a hard job. 

But there are some important guidelines. I mean, first, there is 

a significant distinction between product standards and process 

standards. 

The economies of scale argument really doesn’t apply to process 

standards. You know, process standards can be very different 

across the country and products can still trade in national markets. 

So tracking the process standards, you don’t have to worry about 

that. You know, whether its action is good or bad will have to be 

decided on other reasons, but you don’t have to worry about the 

economy of scale. 

For products, you might have to. I mean, generally, bigger isn’t 

always better. And, you know, we know that in all kinds of contexts. 

So I think some categorical boxes are fairly clear to draw. And 

you can learn about the manufacture of cars. It probably won’t take 

that long to figure out that there are significant economies of 

scales. 

For most products—you know, products are produced in the centralized way across the country, product economies of scale are 

less. 

And you can also give some flexibility to the Federal regulator. 

Often these standards are going to be set by Federal regulators and 

there can be some flexible mechanisms, including some cooperative 

flexible mechanisms where they can work with the States. 

So I think you can make some broad generalizations, delegate 

some authority to do the Federal regulators, and then have them 

work cooperatively with the States. You will probably end up with 

an outcome that is pretty good. 

Ms. DEGETTE. Thank you very much. 

Mr. SHIMKUS. I want to thank my colleague. 

There is 11 minutes left before the vote is called. 

I want to recognize the gentleman from West Virginia for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman. 

I will try to be brief. I have many more questions here to ask 

with this, but given the time frame with it—Mr. Chairman, with 

all due respect to your expectations at this hearing, I really would 

like to ask Ms. Steinzor some other questions, especially after your 

testimony that you said that industry is browbeating the EPA. 

Is that a fair statement of what you said? 

Ms. STEINZOR. Yes. I believe that is a fair statement. 

Mr. MCKINLEY. Do you think that Congress is also pushing back 

against the EPA in a browbeating way? 

Ms. STEINZOR. Yes. 

Mr. MCKINLEY. I find that pretty incredible. 

91 

That is why I like these discussions. We get off game here a little 

bit because I know he had intention, but here is a chance for us 

to have a dialogue about that because, quite frankly, many of us 

think that the EPA is a bully in the playground. 

It is imposing things on small individuals, small farmers, individuals, and we are trying to be their voice. We are trying to raise 

the awareness around the country that the EPA is overextending 

its bounds. 

So I am glad that you think that we are because it helps me understand a little bit better where you are coming from, whatever 

adjective we want to add to that. 

Do you think the EPA wage garnishment is fair, is right? 

Ms. STEINZOR. I am not familiar with the circumstances where 

that happened. 

Mr. MCKINLEY. Do you think the navigable waterways on our agricultural farms—do you think that is fair, their ruling? 

Ms. STEINZOR. I actually think—— 

Mr. MCKINLEY. Just a ‘‘yes’’ or ‘‘no,’’ given the time. 

Do you think it is ‘‘yes’’? I am hearing a ‘‘yes.’’ 

I heard that—on coal ash, did you even read the bill? 

Ms. STEINZOR. I am sorry? 

Mr. MCKINLEY. We passed it four times, by the way. The Senate 

is not taking the coal ash bill up. We could have resolved this 

issue, and the North Carolina situation probably would not have 

happened if the Senate had taken that bill up. 

So we are trying to work with that—the Congress has actually— 

the House is actually working a way to try to address this problem, 

and the Senate, because of an ideology, is preventing that from 

going forth. 

So, apparently, you are not aware. 

Ms. STEINZOR. I am very familiar with the coal ash bill. I don’t 

think it would have solved the problem in North Carolina. 

Mr. MCKINLEY. Oh. You don’t think the collapse of the dam—— 

Ms. STEINZOR. I don’t think so, because you would have left it to 

North Carolina at the State level. 

Mr. MCKINLEY. Well, you are not an engineer. So I can’t image 

you would understand that. 

What about Spruce Mine? Do you think it was appropriate that 

the EPA has the ability to withdraw—retroactively withdraw a permit? 

Ms. STEINZOR. I am not familiar with that situation. 

Mr. MCKINLEY. What I am pointing out—and this is what America needs to understand—that is why we are pushing back against 

this bully in the playground. 

These are just examples of things that the EPA is doing to our 

community, our businesses, our farms, all across America, and 

someone has to stand up to them. 

Because individuals like the Alts over in eastern panhandle or 

the Sacketts out in Idaho, they don’t have the resources. They need 

somebody here in Congress to stand up and push back against this 

bully. 

Have you ever experienced a bully? 

Ms. STEINZOR. Yes, I have. 

92 

Mr. MCKINLEY. Then, you understand. You ought to be able to 

relate to that, about someone in the power—— 

Ms. STEINZOR. I disagree that EPA is a bully. 

Mr. MCKINLEY. You do you agree that EPA is a bully? 

Ms. STEINZOR. I do not agree that EPA is a bully. 

Mr. MCKINLEY. Oh. OK. Well, I guess that is why we are just 

going to disagree with that. 

But, nevertheless, many of us perceive that, when we see them 

attacking industries, attacking families and their farms, we are 

talk—individuals trying to—in Idaho—I could go on and on with 

examples of that. 

I do hope you do get another chance to read the Fly Ash Bill because we passed it four times and we think it will address that. 

Actually, the EPA supports this legislation. They’ve indicated 

that they find it a workable document. If you are not aware of that, 

you might want to check into that a little bit. 

And the President did not issue a veto threat with that. So this 

was a document that could have gone to save that problem—prevent that problem. But because of the ideology of people in the 

other body, apparently, they didn’t want to do that. 

So I am sorry. In deference to time, let me not waste any more. 

And I yield back the balance of my time. 

Mr. SHIMKUS. The gentleman yields back his time. 

We want to thank the panel. There is still about 6 minutes left 

before we need to get to the floor. We talked about the time frame 

beforehand. So we are going to adjourn this in a minute. We are 

not going to call you back. 

Be prepared for some folks to follow up with questions. And if 

you would respond. You know, we try to primarily focus on the 

questions when should Congress consider acting and who should be 

the regulator. 

You got some very good questions. I was hoping for clarity. I 

think I got more confusion. But I guess that is what you guys live 

with and ladies live with when you deal with constitutional law 

and States’ rights and the like. 

This was helpful to me. I appreciate your attendance. 

With that, I am going to call the hearing as adjourned. 

[Whereupon, at 10:32 a.m., the subcommittee was adjourned.] 

Æ