37 Harv. Envtl. L. Rev. F. 1 (2012)

handle is hein.journals/helf37 and id is 1 raw text is: 




         FEDERALISM IN THE AIR: IS THE CLEAN AIR ACT'S
   MY WAY OR NO HIGHWAY PROVISION CONSTITUTIONAL
                        AFTER NFIB v. SEBELIUP?

                                 David Baake*

                                    ABSTRACT
       Since the New Deal era, the Supreme Court has interpreted the Spending Clause
to permit Congress to use conditional grants to encourage state governments to take
action that Congress could not require them to take. In National Federation of
Independent Business v. Sebelius, the Supreme Court unexpectedly restricted this power,
holding for the first time ever that a conditional grant was unconstitutionally coercive
because the amount of money at stake was so large that the states had no real choice but
to comply with the attached conditions. This remarkable development in Spending Clause
jurisprudence will likely embolden states to challenge the constitutionality of a wide
variety of statutes, including Section 1 79(b)(1) (Section 179) of the Clean Air Act, which
empowers the Environmental Protection Agency (EPA) to prohibit, with limited
exceptions, the distribution of federal highway money to states that fail to submit
adequate State Implementation Plans (SIPs).
       In this article, I assess the likelihood that a Spending Clause challenge to Section
179 would succeed, post-Sebelius. In Part I of this Article, I briefly discuss the Sebelius
Court's Spending Clause holding. In Part II, I argue that Section 179 should survive a
facial constitutional challenge after Sebelius because, at least where applied to SIP plans
for pollutants emitted by mobile sources, the provision can be construed as an attempt to
restrict the use of federal funds to projects that advance the general welfare. Finally, in
Part III, I argue that Section 179 should survive an as-applied constitutional challenge,
even if it is applied to SIP plans for pollutants that are not emitted by mobile sources.
Even here, I argue, the decision to enact a SIP remains the prerogative of the States not
merely in theory but in fact, because (1) a state that does not wish to promulgate a SIP
can petition EPA to promulgate a Federal Implementation Plan (FIP), which will halt the
sanctions clock, and (2) the amount of money at stake will likely be significantly less than
the amount at stake in Sebelius.

                                  INTRODUCTION
       Article I, section 8 of the Constitution grants Congress the power to lay and
collect Taxes, Duties, Imports and Excises to pay the Debts and provide for the . . .
general Welfare of the United States.1 Since United States v. Butler,2 the Court has
recognized that the power of Congress to authorize expenditure of public moneys for
public purposes is not limited by the direct grants of legislative power found in the
Constitution.3 Nor is the power limited to the expenditure of public moneys on federal
projects: Congress may employ the spending power to further broad policy objectives by

* J.D. Candidate, Harvard Law School, Class of 2014. The author is available at
dbaake @jd 14.law.harvard.edu.
I U.S. CONST. art. I,  8, cl. 1.
2 297 U.S. 1 (1936).
3 Id. at 66.

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