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Federalism and environmental policy

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Title:
Federalism and environmental policy examining the relationship between intergovernmental cooperation and improved air quality
Creator:
Wiant, Chris J
Publication Date:
Language:
English
Physical Description:
xviii, 358 leaves : illustrations, forms ; 29 cm

Subjects

Subjects / Keywords:
Federal-city relations -- United States ( lcsh )
Air quality management -- United States ( lcsh )
Air quality management ( fast )
Federal-city relations ( fast )
United States ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

Bibliography:
Includes bibliographical references (leaves 307-314).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Doctor of Philosophy, Public Administration.
General Note:
School of Public Affairs
Statement of Responsibility:
by Chris J. Wiant.

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Source Institution:
|University of Colorado Denver
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|Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
34055387 ( OCLC )
ocm34055387
Classification:
LD1190.P86 1995d .W53 ( lcc )

Full Text
FEDERALISM AND ENVIRONMENTAL POLICY:
EXAMINING THE RELATIONSHIP BETWEEN
INTERGOVERNMENTAL COOPERATION AND
IMPROVED AIR QUALITY
by
Chris J. Wiant
B.S., Illinois State University, 1972
M.A., Sangamon State University, 1978
M.P.H., University of Illinois, 1979
A thesis submitted to the
Faculty of the Graduate School of the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Doctor of Philosophy.
Public Administration
1995


1995 by Chris J. Wiant
All rights reserved


This Thesis for the Doctor of Philosophy
degree by
Chris Wiant
has been approved for the
Graduate School of Public Affairs
Patricia Nolan
Date


Wiant, Chris J. (Ph.D., Public Administration)
Federalism And Environmental Policy: Examining
The Relationship Between Intergovernmental
Cooperation And Improved Air Quality
Dissertation directed by Associate Professor Lloyd
Burton
ABSTRACT
This study examines the relationship between
air quality improvement and federalism from passage
of the Clean Air Act in 1970 to 1990. The working
hypothesis guiding this study was that the most
significant progress in improving air quality would
be found in those subnational jurisdictions which
exhibit the most relatively cooperative relationship
with the federal administrative agency.
A survey tool and case study interviews were
used to take an in-depth look from inside the
implementing agencies at the development and
implementation of the Clean Air Act of 1970 and
subsequent amendments in 1977 and 1990. Eight major
U.S. cities were included in the study sample.
IV


The results showed an inverse relationship
between air quality improvement and the perceived
level of intergovernmental cooperation- The greater
the perceived cooperation the less relative
improvement in air quality. The findings of this
study suggested that the concept of true cooperative
federalism may not provide a sufficient description
of what is actually going on in the case studies
comprising the data set for this research. While the
use of coercion or command and control policies by
the federal EPA may be inconsistent with a normative
view of cooperation it appears that a more and
intrusive, directive approach by federal
implementors was necessary to make genuine progress
in improving air quality from 1970-1990.
This abstract
of the candidate's
publication.
accurately represents the content
dissertation. I recommend its

V


This work is dedicated to:
Cindy, whose love and support has been with me
throughout; and
Jennifer and Jeffrey, children who make a father
proud.


ACKNOWLEDGEMENTS
There have been many people who have assisted
me in the completion of this thesis. Many have
helped me to think more deeply and clearly about the
issues of implementing public policy and about
intergovernmental relations. Their many suggestions
have improved this final product and matured my
thinking and understanding of public administration.
At the top of the list of those providing their
insight and experience is Professor Lloyd Burton.
Others on my Committee including Franklin James and
Bob Gage, from the Graduate School of Public Affairs
at the University of Colorado, and Bill Marine and
Pat Nolan each added a different perspective, all of
which resulted in the construction of a better
product. Each of their contributions of time and
expertise is greatly appreciated.
Others who have assisted in gathering information
and producing this final product include Marlin
Helming, U.S. EPA, who helped me access the AIRS
database when no one else could, Kathy Delmont and
Valerie Roundy who created the figures and tables
vii


and many staff of Tri-County Health Department who
provided encouragement and assistance in a variety
of ways.
The work would not have been possible without
the cooperation of those individuals working for air
quality agencies in the cities and states studied.
They are all listed in Table 5.8.
Nelson Fabian, Michael Wiant and Linda Reiner
deserve special commendation for their extraordinary
efforts to read the entire document and offer
invaluable comments and suggestions for improvement.
Finally, behind every successful person is a
mentor. Such a person encourages excellence and the
continual pursuit of knowledge and experience. He
or she challenges one to work better and smarter.
That person serves as an example of excellence and,
in this case, is a model of integrity and dedication
to public service. For the last 11 years Dr. Hugh
Rohrer has provided me with opportunities to learn,
shared his sound judgement and decision making
skills and supported me in every way. Without his
support and encouragement I may never have
vi 11


experienced the growth and satisfaction that have
resulted from my work at Tri-County and pursuit of
this degree.
IX


CONTENTS
Acknowledgements..............................vi
Figures.......................................xvi
Tables........................................xvii
CHAPTER
1. FEDERALISM AND ENVIRONMENTAL LAW...........1
The Problem...............................1
Introduction..........................1
Theoretical Issues.............. .9
Generating Theory .................... 11
Environmental Policy and
Federalism............................14
The Clean Air Act.....................22
Research Hypothesis ..................24
Assumptions and Limitations .......... 24
Importance of the Study...............26
2. FEDERALISM AND THE EVOLUTION OF
FEDERAL-STATE RELATIONS . . .........31.
The Theory of Federalism..................32
Federalism Defined....................32
Dual Federalism ......................35
Cooperative Federalism................38
Cooperation Defined........................40
x


Influence of the Supreme Court............47
Variations of Cooperative Federalism . .50
Creative Federalism ............52
New Federalism........................54
Another Version of New Federalism 56
Congressional Federalism..............60
EPA and Environmental Federalism ... 65
The Growing Use of Preemption.............68
Types of Intergovernmental
Regulatory Strategies.................70
The Role of Preemption................72
Administrative Agency versus
Political Perceptions ............... 75
The Current State of
Federalism Theory ....................... 77
A Conceptual Framework for'
Cooperative Federalism....................81
3. THE MODERN ENVIRONMENTAL MOVEMENT
AND THE CLEAN AIR ACT .....................85
The Environmental Movement ...............85
The Conservation Movement and
the Environmental Movement............89
The Principles of Comprehensive
Environmental Management (CEM).... 93
xi


The 1970s and Institutionalization
of Environmental Protection ......... 97
The 1980s and the Reagan Legacy .99
The 1990s- A Resurgence for the
Environment...........................100
The Capabilities of State and
Local Government......................104
The Resurgence of the States..............110
Are Federal Environmental Protection
Efforts Working?..........................113
Tractability..........................113
Adequacy of the Statutes..............115
Political Variables ................. 115
The Limits of EPA.........................117
Cooperative or Coercive Federalism .120
The Clean Air Act.........................122
Clean Air and Federalism..............122
Provisions of the Clean Air Act 125
History of the Clean Air Act..........130
The Benefits of a National Air
Policy................................135
Implementation Problems with the
Clean Air Act........................... 139
Problems with the Federalization
of Clean Air Policy.......................147
Xll


The Clean Air Act as a Case Study .... 153
4. METHODS OF STUDY........................... 157
Research Methodology. ..... '. 157
Use of the Case Study Method...........158
Research Design ...................... 162
The Pollutant Standards Index .164
Selection of Subjects ................... 166
Selection of Cities and States .166
Selection of Survey and Interview
Participants...........................176
Survey Instrument Preparation and
Pre-testing............................180
In-Depth Interviews and Open Ended
Questionaire...........................186
Collection of Survey and Interview
Data...................................189
Data Analysis..........................192
5. Results And Discussion......................196
Air Quality Trends in the U.S..........196
General Survey Results.................197
Analysis of Categories and
Individual Survey Statements...........205
General Results of In-Depth............209
Interviews
xiii


Analysis of Cooperative Federalism-
Discussion of Survey Differences .......... 212
Statutory Authority 212
Division of Authority and
Responsibility........................213
Power/Coercion........................219
Other Forms of Coercion...............222
Flexibility...........................225
Mutual Trust and Support..............228
State and Local Initiative............232
Leadership and Innovation ........... 234
Solid Performers......................237
Environmental Management
in the Cities.........................238
Comparison of State Programs..............241
Technical Issues in the States. .246
The EPA Perspective.......................248
STAPPA And ALAPCO- An Overall State
and Local Perspective ................... 252
The Evolution of Clean Air
Legislation and Local Programs............258
Discussion................................264
Factors That Reduced Perception
Scores................................266
xiv


The Contrast of Agency
vs. Political Views....................270
Coercion and Cooperation ^ ..274
Definition of Cooperation ............ 274
Preemption and Compliance ............ 276
The Intergovernmental Relationship
and Improved Air Quality..............27 6
Cooperation with Coercive
Elements...............................277
Cooperation Without a Balance
of Power...............................278
A Proposed Theory .................... 279
Summary................................285
6. CONCLUSIONS AND RECOMMENDATIONS . . . .286
Formulation ....................... 289
Implementation.........................291
Evaluation.............................296
Policy Goals and Political
Influence..............................297
An Effective Balance ..................301
A Final Perspective .................. 302
REFERENCES.......................................307
APPENDIX........................................ 315
xv


FIGURES
Figure
3.1 Jones' Centralization-Decentralization
Continuum................................ .
148
xvi


TABLES
Table
1.1 PSI Categories and Health Effect
Descriptor Words.................. .... 27
2.1 Zimmerman's Postulates of Dual and
Cooperative Federalism.....................41
2.2 The Conceptual Framework of
Cooperative Federalism.....................83
3.1 Additional Requirements of Reauthorized
Environmental Legislation.................101
3.2 Major Provisions of Federal Legislation
on Air Pollution Control..................128
4.1 Number of Days PSI Was Greater
Than 100.................................. 172
4.2 Rank of Cities for Change in
Air Quality 1970-1990 ....................173
4.3 Populations of Participating Cities
and States................................175
4.4 Survey of State and Local Agencies
Comparison of Scored Survey Statements
and Category From the Framework
for Cooperative Federalism .............. 182
4.5 Survey of State and Local Agencies
Categories in Defining Cooperative
Federalism, Corresponding Suvey
Statements and Scoring .................. 190
4.6 Example Calculation of Survey Score .191
4.7 Survey of State and Local Agencies
Range of Possible Survey Scores...........194
xvii


5.1 Survey of State and Local Agencies
Scores By City....................... . .199
5.2 Rank of Cities by Worst Air Quality
(PSI Days Greater Than 100) vs.
Survey Score ............................ 200
5.3 Rank of Cities by Slope of Trend
in PSI Change (1970-1990) vs. Average
Survey Score ............................ 202
5.4 Rank of Cities by % Change in PSI
Days Greater Than 100 Vs. Average
Survey Score ............................ 203
5.5 Survey of State and Local Agencies
Differences In Between Categories
in the Conceptual Framework of
Cooperative Federalism....................207
5.6 Average Item Scores for Survey
Responses from Eight Cities and
States............................. 207
5.7 Survey of State and Local Agencies
Difference in Survey Response
Between Cities............................208
5.8 In-Depth Interview Participants...........210
5.9 Survey Responses for Eight
Cities and States-Statement 18 .... 217
5.10 Survey Responses for Eight
Cities and States.........................224
5.11 Survey Responses for Eight
Cities and States-Statement .10 ......... 229
5.12 The Elements of Intergovernmental
Relationship Associated with a Theory of
Cooperative Federalism .................. 280
xviii


CHAPTER 1
FEDERALISM AND ENVIRONMENTAL LAW
The Problem
Introduction
The U.S. Congress has formulated landmark
policy through federal statutes addressing a
multitude of national issues including protection of
public health and the environment. The intent of
that legislation is often stated clearly and the
public perceives that a problem has been addressed
effectively. However, the policy incorporated in
the statute must be effectively applied through the
implementation process in order to achieve the goals
of the statute. In the case of most federal
statutes that implementation requires some level of
interaction among the three levels of government
(federal, state and local).
This research studied those various
intergovernmental relationships in a historical
context to determine how they influenced the
achievement of national goals established in a
specific federal statute, the Clean Air Act of 1970.
1


The framers of the U.S. Constitution created a
federal system that included enumerated and reserved
powers for the national and state governments.
Federalism emerged as a system of rules for the
division of public policy responsibilities among a
number of autonomous governmental units (Anton 1989,
3). Initially, under the model of dual federalism
the states and national government functioned rather
independently. However, much of the momentum that
led to the Civil War was the result of the
perception of several states that their sovereignty
was at risk through actions of the federal
government.
It was in the 1930s that the national
government assumed much greater responsibility in
providing for the needs of the citizens. The
increase in services provided by government, the
complexity of the issues of the day and the overlap
of responsibilities between different levels of
government led to the emergence of a model of
cooperative federalism. For this study, cooperative
federalism is defined generally as an interdependent
relationship among federal, state and local
2


governments in which each level relies on the others
for the performance of certain functions and the
investment of resources to achieve shared goals.
Under cooperative federalism the federal-state-local
relationship is characterized by interdependence and
the need for collaboration.
The 1970s saw the beginning of an erosion of
federal fiscal power, the liberal interpretation of
constitutional and political boundaries of federal
regulatory power and the increased demand for public
goods that contributed to a greater use of federal
preemption of state and local authority. By 1980,
the prescriptive mandates continued but the funding
declined placing more burden on state and local
government to fund federally mandated programs
(Kincaid 1990, 139).
The centralization of power at the federal
level of government also corresponded in time with
the emergence of a new era in environmental
activism. Activists alleged that state and local
government were captured by industry and they had
not addressed environmental pollution issues
aggressively. Meanwhile, industry feared a lack of
3


uniformity in regulation among states and called for
uniform national regulation. Strategically, it was
also easier for special interests and industry to
lobby Congress than each of the fifty state
legislatures. The environmental policy arena,
therefore, provided the opportunity for the
enactment of national laws that featured both
federally directed policy making and the liberal use
of formal preemption of state and local government
authority. As responsibilities that had previously
been within the state's domain shifted to the
federal government, a change occurred in
intergovernmental relations and the rules of
federalism.
It appears that the operative federalism model
that emerged reflected far more coercion than
cooperation. The term command and control is often
used to describe the coercive, top-down approach to
environmental policy implementation. This is
contrary to what I would describe as the normative
view that cooperation was necessary for successful
policy implementation. (Coercion is not compatible
with the concept of cooperation.) Furthermore, it
4


was feared that a system driven by coercion would
"undermine governmental responsibility arid public
accountability; yet state and local government may
not possess sufficient constitutional or political
leverage to alter the system" (Kincaid 1990, 139).
The suggestion, which is clearly made on
previous pages, of a changing paradigm of federalism
that began during the 1970s was perhaps based more
on normative presumptions of cooperative federalism
than on prescriptive and empirically supported
theory. Without a substantive theory of cooperative
federalism it is difficult to identify a set of
parameters that define the term for the purposes of
determining whether it can be supported empirically.
It has also been difficult to study the
relationship between intergovernmental cooperation
and the achievement of policy goals and objectives.
If the normative assumption is correct that
cooperation based solely on voluntary participation
is necessary for success then there would appear to
be a conflict between' the use of preemption and
other coercive elements in national legislation and
the achievement of environmental goals. On the other
5


hand, it is possible that the normative concept of
cooperative federalism could be challenged and give
way to the establishment of an applicable general
theory of federalism that had both cooperative and
coercive elements. The outcome, measured in terms
of improved environmental quality, that has resulted
from environmental legislation that contained
coercive elements suggests such a challenge may have
merit. For example, with the Clean Air Act of 1970,
Congress mandated the establishment of ambient air
quality standards at the Federal level and directed
states to attain those standards. By 1990
significant progress had been made in the
improvement of air quality despite the influence of
preemptive measures and the threat of sanctions to
state and local government. A,number of key
questions follow. How was that progress influenced
by the quality of the intergovernmental
relationship? Is it possible to have a productive
relationship with coercive elements? Does the
existence of a commanding partner in the federal-
state-local relationship make cooperation impossible
6


to achieve and, if not, is that really important in
the attainment of statutory goals?
The emergence of national environmental policy
in the 1970s provides an excellent subject for the
study of the questions and counter intuitive ideas
presented above. The Clean Air Act of 1970
represents the earliest law of the modern
environmental era in which preemption and other
coercion was used within the overall framework of an
intergovernmental partnership.
In order to answer the questions raised and to
study the nature of the intergovernmental
relationship, it was necessary to construct a
foundation for discussion by operationalizing a
conceptual definition of cooperative federalism.
The use of qualitative, case study research was
proposed to evaluate this operational model in an
effort to analyze existing descriptive theory and
begin the construction of a theory of federalism,
which is grounded in the results of this research.
The purpose of this study was twofold. First,
the practical significance of the study was in
defining the elements of intergovernmental
7


relationship, and more specifically the concepts of
cooperative federalism that led to. effective air
quality policy and evaluating how that definition
corresponds with the normative view of cooperative
federalism. Secondly, the findings were utilized to
generate a theory, grounded in the results of this
study of federalism, that describes how governmental
levels related as air quality was improving. This is
a first step in the construction of a proposed
general theory of federalism that can be tested in
other areas of public policy.
Kincaid (1990, 139) claimed that cooperative
federalism has not been replaced by a new consensus
on federalism but that a new consensus may have to
be created from the elements of cooperative equity,
efficiency and dual accountability.
There is a potential conflict between differing
interpretations of how intergovernmental
relationships are viewed within the rubric of
cooperative federalism. While the coercive elements
of laws like the Clean Air Act may enhance the
productivity of the agencies that implement them
8


they present an inconsistency with the normative
view of a cooperative partnership.
Theoretical Issues
The very nature of federalism makes it
difficult to study in a theoretical sense. The
theory of cooperative federalism is not prescriptive
and is interpreted by each researcher who studies
it, often only within the context of that study.
In the Federalist Papers, where the concept of
federalism emerged, Madison and Hamilton constructed
persuasive arguments about what forms of
intergovernmental relations were preferable or how
the newly created federal system should work
(O'Toole 1993, 29) Federalism, according to Anton
(1989, 3), is a system of rules for the division of
policy responsibilities among governmental units.
Those rules have not been delineated in a form that
would result in a general theory of federalism that
has either pragmatic utility or suitability for
subsequent testing and generation of empirical
support.
9


More recent discussions of intergovernmental
relations have relied upon references to history to
justify courses of action. As a result, the
discussion of federalism and intergovernmental
relations theory has often been heavily vested in
normative content and less often supported
empirically. Of course there are exceptions.
Notable among them are Anton's proposed benefits
coalition framework, which is intended to bring
analytical strength to the study of federalism
(Anton 1989, 29) Nevertheless, it is this
deficiency (i.e. the generation of substantive
theory) that in part prompted this research. The
expectation was that it may be possible to
establish, with some specificity, the parameters of
federalism generally, and intergovernmental
relations specifically, that result in the most
effective achievement of the goals and objectives of
nationally legislated public policy.
This would be in contrast to research to date.
For example, research in the federalism arena has
often consisted of the interpretation of events
within a normative context, as described previously,
10


or the study of hypotheses that have been generated
based on conceptual elements of federalism and
intergovernmental relations. For example, Davis and
Lester (1987, 157) evaluated the response of states
to environmental policy issues within the context of
the decentralization of regulatory responsibilities
to the states. Their research hypotheses resulted
from a normative perspective of how states would
respond to selected changes in federal-state
relations.
Generating Theory
A dilemma in studying federalism is the absence
of a clear framework of substantive theory that
ordinarily would serve as a basis for such studies.
Therefore, verification of existing theory by
providing empirical support through the analysis of
one or more hypotheses will not be as productive, in
a definitive sense, as a test of one or several
models of federalism. It would be possible to
generate an hypothesis that would fit the data
collected but this would do little to add to the
understanding of the larger concept of federalism.
11


A third method might be to generate a theoretical
construct that fit qualitative case study data and
describe federalism as it applies to the cases being
studied. Such theory, grounded in the systematic
evaluation of case study data, could then assist in
the generation of a more empirical definition of
cooperative federalism. It would thus provide a
more substantive starting point for future research
intended to generate further empirical support for a
theory of federalism.
Glaser and Strauss (1967) described the
generation of grounded theory and its relevance,
particularly when qualitative research is performed.
Grounded theory is particularly suited to studies of
social and political structures that are in a
continuous mode of change (Glaser and Strauss 1967,
235). The theory generated reflects what the
researcher knows systematically about his own data.
Grounded theory is intended to be supported by
observations that lend themselves to a better fit
with the real world whereas speculative theory has'
little if any grounding in data that is collected
and analyzed systematically.
12


The elements of grounded theory, as proposed by
Glaser and Strauss, consist of two parts. These are
the conceptual categories and properties and
hypotheses or generalized relations among categories
and their properties (Glaser and Strauss 1967, 32) .
This study relied on the use of a conceptual
model of federalism that has the relevant literature
as its basis. The model incorporates normative
elements, reflecting the traditional notions of
cooperative federalism. The model was used to
analyze the statutory structure and the
implementation of the Clean Air Act of 1970.
Through this analysis the intergovernmental
relationship that evolved over the 20 years (1970-
1990) of the Clean Air Act was evaluated to
determine what factors might have contributed to
improved air quality. Additionally, the conceptual
definition of cooperative federalism was analyzed to
determine if it fit the actual intergovernmental
relationships associated with the Clean Air Act.
From that analysis attention was returned to the
development of a theoretical construct that utilized
13


the conceptual definition of cooperative federalism
as its basis.'
Environmental Policy and Federalism
By the late 1960s the scale of environmental
problems in the U.S. was changing as Chapter 3
describes in more depth. Different state and local
laws along with competition for new industry that
tempted state and local government to avoid
enactment and enforcement of environmental laws and
interstate transportation of pollution, suggested
the need for a centralized, national effort to
control pollution. There was evidence of widespread
disregard for environmental protection and a
recognition that state and local governmental
agencies were not equipped technically to address
the growing complexities of modern industries as
sources of environmental pollution (Reilly 1989,
351). Congress was urged to act on behalf of public
health and environmental protection by establishing
national goals and supervising the implementation of
a national effort to cleanup and control pollution.
14


Federal preemption of state and local authority
was to become a widely used policy.tool. During the
1970s and 80s Congress preempted state and local
laws and regulations more than 200 times (ACIR 1992,
9). Of those 200 preemptive statutes, 70 affected
health, safety and natural resources (ACIR 1992, 9).
That compares to a total of 74 preemptive statutes
during the decades of the 1950s and 60s (ACIR 1992,
9). Preemption laws enacted by Congress have
included 29 environmental protection statutes.
These included all of the major legislation on
water, air and waste.
The centralization of responsibility at the
national level of government ended the dominance of
state and local government where the formulation and
implementation of most environmental protection
policy had occurred prior to 1970. Primary
responsibility for environmental policy now resided
in the newly created Environmental Protection
Agency.
Whereas cooperative federalism had been
dominant in federal-state-local relations since
about 1930, a more coercive regulatory federalism
15


reportedly emerged after 1970 (Walker 1981, 65) .
This new type of federalism was described in terms
of the preemption of state and local authority, the
promulgation of prescriptive requirements for state
and local government to meet in order to receive
authorization to administer federal environmental
laws and the threat of sanctions that would be
imposed for failure to meet federally established
compliance deadlines (ACIR 1984). This was
manifest, not only in clean air legislation, but in
the Clean Water Act, Safe Drinking Water Act, the
Resource Conservation and Recovery Act and other
environmental statutes. These features were
inconsistent with the normative concept of
cooperation and the view that a collaborative
relationship was necessary to effectively achieve
policy goals.
It was the clear expectation of Congress that
enactment of tough environmental laws administered
under federal direction would result in the prompt
cleanup of air, land and water. We have since
learned that many assumptions that were built into
the foundation of the new environmental laws were
16


faulty. Yet there are examples of marked
environmental improvement associated with
implementation of the laws.
We assumed we knew how to measure ambient
levels of pollutants accurately and that there was
adequate technology available at reasonable costs to
reduce the levels of pollutants (Ruckelshaus 1985,
459). Looking back over more than 20 years, we find
that despite progress toward the goals established
by the environmental legislation of the 70s and 80s
many of the measures of implementation success such
as the achievement of certain regulatory deadlines
were not realized. For example, fewer than 15% of
the initial Clean Air Act deadlines were met
(Lazarus 1991, 325). Now, more.than 20 years later
many areas have still not met the National Ambient
Air Quality Standards (NAAQS). In September 1993
there were 190 areas in the U.S. that were
designated as non-attainment for one or more of the
Criteria Pollutants (EPA 1993, 5-1) By 1991, EPA
had acted, with regulation, on only 7 of 274 known
hazardous air pollutants (EPA 1993, 5-1). An
explanation for these failures in the face of real
17


progress in the nation's air quality is lacking
presently. It is possible that the federalization
of the Clean Air statute did not, in and of itself,
result in cleaner air. It may have been that state
initiative apart from federal direction was
responsible or that the deadlines were just
unrealistic, making it appear that the statute had
failed. An explanation would contribute to the
knowledge of how to structure future, similar
mandates.
Much of the impetus for Congress to enact
federal environmental legislation was the result of
pressure from interest groups that focused their
attention nationally and from fears expressed by the
public about the threat to human health and the
environment from pollution. Congress perceived the
problem was the result of inadequate state
enforcement of environmental standards (Ruckelshaus
1985, 458). The resulting preemption of state and
local responsibility through federal legislation
enabled the federal government to direct a national
response to environmental pollution. But was the
18


Congressional perception of inadequate state
enforcement correct?
As we begin the third decade of the modern
environmental movement, new questions are being
raised about the dominance of the federal government
in environmental protection. We have recognized the
decentralized nature'of serious environmental
threats. We have found that controlling pollution
will require lifestyle-altering actions at the local
level, actions that the federal government would
have difficulty defining and implementing (Reilly
1989, 353). It was the former Environmental
Protection Agency (EPA) Administrator, William
Reilly who said, "I think our national response is
going to require the coordinated efforts of federal,
state and local governments, of business and of
individual families" (Reilly 1989, 353).
Reilly (1989, 354) recognized that many
innovative ideas have come from the state and local
levels of government. A current barrier to the
coordinated response of which former Administrator
Reilly spoke is the feeling that ineffectiveness is
rife in existing intergovernmental relations. There
19


seems to be a general frustration with the lack of
trust, communication and sharing of responsibility
in the relationships among the federal government,
states and local agencies (Walters 1994, 51).
Moreover, there are federal, state and local
officials who are frustrated that the apparent
ineffectiveness in intergovernmental relations is
exerting a dampening effect on innovation and
creativity (Walters 1994, 51). They believe that
restructuring policy and relationships at whatever
level is necessary to make government work better.
These comments follow studies by organizations
such as the Advisory Commission on Intergovernmental
Relations (ACIR) which also raised concerns about
the effects of the changing nature of federalism.
Several conclusions of a widely referenced 1984
study by ACIR support concerns about the direction
of federal-state-local relations. Those findings
included:
1. The real nature and extent of the impact of
federal regulation on state and local
governments is still not fully understood.
2. Intergovernmental conflict and confusion
have hampered progress toward achieving
national goals.
20


3. Past efforts at regulatory reform have given
little attention to problems of
intergovernmental concern. (AC-IR 1984, 252)
Dubnick and Gitelson (1981, 56-57) stated their
concern that coercion is inconsistent with effective
intergovernmental relations when they said,
Of all the intergovernmental mechanisms used to
nationalize regulatory policy, none is more
revolutionary than the approach first applied
in the Clean Air Act. It is an approach
minimizing both the voluntariness of state and
local participation and the substantive policy
discretion provided for officials in sub
national governments. In fact, it is a
mechanism that challenges the very essence of
federalism as a non centralized system of
separate legal jurisdictions and instead relies
upon a unitary vision involving hierarchically
related central and peripheral units. ... We
call this legal conscription.
Conlan (1993, 375) suggested that a fundamental
challenge to traditional notions of federalism is at
hand and a subtle process of erosion will result in
a unitary relationship characterized by an archaic,
sterile structure of administrative relationships.
To demonstrate how this is the case it is necessary
to discuss the specific structure of the Clean Air
Act itself.
21


The Clean Air Act
The Clean Air Act of 1970 (42 U.S.C.A. Section
7401-7642) was chosen for study because it
delineated roles and responsibilities for federal
and state government. It established an explicit
role for local government. It was the first of the
major environmental statutes of the 1970s and its 20
year history enabled a longitudinal view of how
changes in the law and in interagency relationships
influenced progress toward the goals of the Act.
The Act had.several explicit coercive or
authoritative elements that formally preempted
action by state and local government or provided
prescriptive implementation direction to the states.
These'included the following:
1. The federal agency (U.S. EPA) is responsible
for establishing national primary and secondary
ambient air quality standards (Sec. 7409).
2. A State Implementation Plan (SIP) is
required. The SIP describes how the state will
achieve attainment of the standards by the
deadline imposed by the Act. It will also
substantiate estimates of how attainment will
be reached. Failure to submit a SIP or meet a
deadline can result in sanctions (Sec. 7410).
22


3. If the state does not engage in timely
enforcement of the Act EPA may initiate
enforcement action (Sec. 7413) .
4. EPA is required to establish national
vehicle emission standards, state standards, if
established, must be at least as stringent
(Sec. 7543).
5. Sanctions for failure to meet deadlines
imposed by the law include the loss of
substantial amounts of highway construction
funds or the imposition of a moratorium on the
construction of new air emission sources, for
example (Sec. 7506).
The Act also identified several elements of a
cooperative partnership among federal, state and
local agencies. For example, states had
considerable leeway in regulating stationary air
emission sources, states had lead responsibility for
compliance and enforcement activities with the
ability to request assistance from the federal EPA,
states developed an implementation plan that is
flexible and met the unique needs of the state
within general federal guidance and the Congress
provided funding for state and local agencies to
carry out the Act.
23


Research Hypothesis
Beginning with the conceptual framework for
cooperative federalism proposed in Chapter 2, the
following hypothesis served to guide the overall
scope of this research of large urban areas in the
U.S. The greatest progress toward attainment of the
goals of the Clean Air Act will be found in those
communities which exhibit the most cooperative
intergovernmental relationship with the U.S.
Environmental Protection Agency. The study period
for the testing of this hypothesis was 1970-1990.
Assumptions and Limitations
There were several assumptions relevant to this
study. First, it was necessary to assume that a
reasonable measurement of cooperation could be
constructed for which the case-study communities can
be ranked in relation to each other based on the
same set of parameters. The use of a survey
instrument to supplement the case study design
permitted the calculation of a composite score to '
comparatively assess degrees of intergovernmental
cooperation. The survey was based on the
24


characteristics of a cooperative or coercive
relationship identified consistently in'the relevant
literature. Large urban areas were ranked by score
for comparison with their ranking based on changes
in air quality.
Also, the Pollutant Standards Index (PSI) was
assumed to be an accurate reflection of the overall
air quality. The PSI is based on the measurement of
criteria pollutants and calculation of an index that
reflects the worst daily air quality experienced in
an urban area. The PSI allowed a comparison of
different locations based on the same set of
parameters. There are many different indicators of
air quality that could be used. Each had its
advantages and limitations. Specific urban areas
may be ranked differently depending upon which index
or other indicator was used. The PSI was chosen for
its consistent use during the time period explored
in this study. It is also a standardized measure of
air quality that relates air quality to public
health. PSI levels were calculated each day from
1970-1990 and are scaled in terms of how healthy the
25


air was. Table 1.1 lists PSI values and their
descriptors.
Importance of the Study
Conlan suggests that although elected officials
and citizens pay lip service to the ideals of
federalism and decentralization they often appear to
be unwilling to sacrifice specific policy goals to
achieve this ideal (Conlan 1993, 374). A careful
evaluation of the. real and potential contributions
of federalism might suggest that it is well worth
maintaining through an occasional sacrifice.
Congress has failed to conduct a comprehensive
examination of the desirability and effectiveness of
partial and/or total preemption. Its approach to
preemption has been ad hoc resulting in problems of
accountability, coordination, costs, effectiveness
and responsibility (Zimmerman 1991, 159).
Zimmerman suggests that Congress should
exercise great care when employing its powers of
preemption to ensure that impediments are not
created that impose restrictions on the ability of
states to develop and implement regulatory programs
26


Table 1.1
PSI CATEGORIES AND HEALTH EFFECT DESCRIPTOR WORDS
Index Range Descriptor Words
0 to 50 Good
51 to 100 Moderate
101 to 199 Unhealthful
200 to 299 Very Unhealthful
300 and Above Hazardous
27


(Zimmerman 1991, 159). A normative perspective on
federalism and what the federal-state-local
partnership should be like has prevailed since
Madison and Hamilton first described their vision of
a federal system of government. Changes that are
apparently contrary to this notion create claims
that the intergovernmental relationship is destined
to become unproductive and driven fully by the
federal level of government. However, there has been
little systematic analysis to formulate a set of
applicable rules that describe federalism while
measuring the effectiveness of those rules in
achieving public policy goals. This study was
important because it took an in-depth look, from
inside the agencies charged with implementation of
the statute, at the association between changing air
quality and the nature and quality of
intergovernmental relationships.
Chapter 2 will begin with a general discussion
of federalism. That discussion will set the stage
for application of the broad concept of federalism
to the specific area of air quality policy. The
transition from dual to cooperative federalism will
28


be followed by a discussion of an operational
definition of cooperative federalism that will be
used in the evaluation of the Clean Air Act.
Chapter 3 will trace the evolution of the
modern environmental movement that began in the
1960s. The federalization of environmental law was
accompanied by federal dominance of policy
formulation and implementation. The transition to a
more coercive federalism appears to have occurred .
simultaneously with the dominance of the federal
government in environmental law.
The discussion will then shift from general
environmental policy to the specifics of the Clean
Air Act (CAA). Implementation of the CAA provides
the basis for this study. The discussion will
include consideration of the legislative history of
the Act and some problems in federal-state-local
cooperation during implementation.
Chapter 4 will outline the method of study for
this research and then report the results of the
survey and case study interviews. The discussion of
those results will focus on findings that enable the
examination of the relationship between the quality
29


of intergovernmental interaction and attainment of
Clean Air Act goals.
Chapter 5 will return to the questions posed in
this Chapter and draw together conclusions of the
study while assessing what was learned about the
relationship between intergovernmental cooperation
and improved air quality.
30


CHAPTER 2
FEDERALISM AND THE EVOLUTION
OF FEDERAL-STATE RELATIONS'
The character of the relationship between the
national and state governmental units (federalism)
has been at issue since the earliest days of
discussion that resulted in the U.S. Constitution.
An understanding of the history of federalism is
fundamental to the establishment of a foundation for
this study which examines the relevance of a theory
of cooperative federalism, in the broader context of
intergovernmental relations, to implementation of
the Clean Air Act of 1970. While the terms
federalism and intergovernmental relations are often
used interchangeably there is a distinction that
should be made between the two.
First, intergovernmental relations recognizes
all combinations of relations among units of
government. Second, while federalism refers
primarily to the Constitutional aspects of federl-
state relations intergovernmental relations includes
the human dimension of the individuals that
implement policies at all levels of government
31


(Wright 1978, 8-9). Intergovernmental relations
provides the context for the discussion to follow of
the implementation of the policy elements that
emerge from federalism.
The following discussion will describe the
origin of federalism in the U.S. and how it changed
during the next 200 years of the nation's history.
The Theory of Federalism
Federalism Defined
The term federalism has characterized federal-
state relations, in the U.S.(Wright 1978, 8). The
word "federalism" is derived from the Latin term
"foedus", meaning a covenant. It represents
authority grounded in comradeship or collegiality,
not domination (Ostrom 1991, 10). Ostrom defines
federalism as a system of government where authority
is exercised concurrently by a national government
and state or provincial governments (Ostrom 1991,
10) .
Daniel Elazar further clarified the meaning of
the term by defining federalism as
32


the mode of political organization that unites
smaller politics in an overarching political
system by distributing power among general and
constituent governments in a manner designed to
protect the existence and authority of both
(Elazar 1984, 2).
Federalism is considered a term that reflects
the best characteristics of a federalist and a
federal structure providing a role for states and
the national government. We now use the word
federal to refer to our-system that has both state
and national features. Federalism in the U.S.
emerged in 1781 at the time of the creation of the
Articles of Confederation. The system of government
created by the Articles, a federalist system,
envisioned dominant state government and a weak
central government (O'Toole 1993, 4). The debate
about merits of a federalist versus federal
government, featuring a strong central government,
was resolved somewhat by adoption of the U.S.
Constitution. The Constitution delegated specific
powers to the Congress. The 10th Amendment to the
Constitution reserved powers for the states that
were not explicitly provided to the national
government (O'Toole 1993, 4).
33


Among the concurrent powers authorized in the
U.S. Constitution are the power to tax and the power
granted to Congress but not prohibited.to the
states. If there is a conflict between federal and
state statute, the state law is nullified by the
supremacy clause of the U.S. Constitution. The
supremacy clause provides the basis for federal
preemption of state and local authority as this
Chapter will later describe.
Article 1, Section 10 of the federal
Constitution also identifies powers that states may
exercise with the consent of Congress. However, the
equal protection clause of the 14th Amendment
restricts state action that the courts may find to
be in conflict with that clause.
Despite these efforts to describe the powers of
various government levels, there remain questions
about the respective roles of national and state
governments. The intent of the framers has been
debated since the Constitution was written. Such
disputes have been typically resolved in the courts.
At the time of its adoption, there was public
concern that the Constitution would result in a
34


national government that would become dominant and
that state sovereignty would be weakened. Alexander
Hamilton and James Madison, writing in the
Federalist Papers in support of the proposed
Constitution, emphasized their intent for states to
retain significant power. Specifically, in
Federalist #51 Madison wrote the following.
In the compound republic of America, the power
surrendered by the people is first divided
between two distinct governments Hence-a
double security arises to the rights of the
people. The different governments will control
each other (Rossiter 1961, 101).
Specific responsibilities aside, the literature of
the time made it clear that this new government "by
the people" was not expected to be driven by a top-
down, national structure. Government was to maintain
the sovereignty of the states while deferring to the
strength of a union of states for national
leadership, assistance and protection.
Dual Federalism
The term "dual federalism" was used to describe
the relationship between national and state
governments during the initial years under our
Constitution. It was characterized by each of the
35


two levels of government operating within a separate
sphere without relying on the other for assistance
(O'Toole 1993, 5).
The following characteristics describe the
nature of the dual system:
1. Congress possesses only enumerated powers.
2. Within their respective spheres, Congress
and the states are "sovereign" and "equal".
3. Tension and not collaboration is
characteristic of national-state relations.
4. Neither Congress nor a state may nullify an
act of the other (Zimmerman 1992 b., 2).
The "dual" system that reflected the interest of the
citizens in the decentralization of power among
different levels of governmentwas still intact
after 140 years of the republic.
Zimmerman (1991, 147) suggested that although
there was a discrete division of powers, dual
federalism never really existed. He described a
symbiotic, not a particularly independent, or
interdependent, relationship that existed between
states and the national government. Nevertheless,
the period from 1790 until the 1930s was most often
defined by a theory of dual federalism in which
36


separate and distinct sovereignty existed in states
and the national government. They each'acted within
their own separate spheres. The relationship,
between levels of government was also not especially
cooperative or coercive.
In fact, neither level of government acted
completely independently, even in the early years.
There was often disagreement on policy issues, such
as labor, social welfare and economic regulation
(O'Toole 1993, 5). Such conflict stimulated
interaction among governments because such issues
influenced the activities and use of resources at
all levels of government. This resulted in some
intergovernmental efforts including the use of
federal aid for things such as road and canal
improvements (O'Toole 1993, 5).
There was a change in intergovernmental
relations beginning in the 1930's as society became
more skeptical of laissez-faire. The role of
government also expanded to more comprehensively
address issues such as the concentration of power in
large corporations.
The era of dual federalism was described by
37


Wright (1978, 41) as the era of conflict. He
characterized'it with such terms as antagonistic,
adversary and exclusivity. That time was also
described as a period of sorting out roles and
specifying clear boundaries between.the national and
state governments (Wright 1978, 41). Patterson
(1969, 207) suggested that dual federalism was
better suited to preserving diversity than to
encouraging strong and coordinated national action.
Cooperative Federalism
Around the time the Constitution was drafted
James Madison wrote that the national government
"cannot be maintained without the cooperation of the
States, ." (Hunt 1901, 332-333). During the Great
Depression the relationship between national and
state governments changed. Although the seeds of
cooperative federalism had been sown earlier the
concept really developed during the New Deal era
(Walker 1981, 65). There was concern that state
governments were neither willing nor capable of
addressing tough policy issues. Following the
Depression the survival of the country was in the
38


balance. That was a time in which leadership was
desperately needed to change the economic course of
the nation, address the significant social welfare
issues and restore the confidence of Americans. The
national government influence in the
intergovernmental system increased but states
retained significant autonomy to address what they
viewed as priorities.
Constitutional support for the development of a
more interdependent relationship among governments
also was provided in 1913 by the adoption of the
16th Amendment. This change permitted the enactment
of an income tax. One outcome of federal revenue
raising was development of the concept of grant-in-
aid. The grant-in-aid became the preferred method
of response to the economic and social problems of
the Depression era. It also stimulated cooperation.
States would meet conditions of grant agencies in
order to receive the additional financial support
offered by grants-in-aid. Instead of the
establishment of new national level programs,
President Franklin Roosevelt used the more
politically acceptable method of the grant in-aid
39


(Walker 1981, 11). This became the style of the
federal government throughout the New Deal era.
Cooperation Defined
The term cooperative federalism has been used
in the literature to describe the characteristics of
intergovernmental relationships beginning in the
1930s. Most recently, Zimmerman (1992a.) identified
several basic postulates of cooperation that he
argues should be included in a general theory of
federalism (Table 2.1). The GAO (1980, 1988) and
Tobin (1992) also identified several characteristics
of a cooperative relationship as perceived by the
subjects of their studies; the state, local and
federal environmental policy makers.
To establish the foundation for a grounded
theory of cooperative federalism, a conceptual
definition was crafted from the federalism
literature. Cooperation can be considered in a
single dimension as a relationship in which parties
work together to achieve a common goal. It may also
have multiple dimensions. This study will explore
40


Table 2.1
ZIMMERMAN'S POSTULATES OF DUAL
AND COOPERATIVE FEDERALISM
Dual Federalism Cooperative Federalism
1. The Congress possesses only enumerated powers. 1. Each plane of government possesses certain autonomous powers which may be exercised cooperatively.
2. The Congress may employ its enumerated powers to promote only a few purposes. 2. One plane of government does not coerce the other plane of government.
3. Within their respective spheres, the Congress and the States are "sovereign" and "equal." 3. Voluntary cooperation may be initiated by either plane of government and may involve the loan of equipment and personnel, and joint program administration.
4. Tension and not collaboration is characteristic of national-state relations. 4. Cooperation may be stimulated by the Congress offering financial inducements-conditional grants-in- aid and tax credits-to the States.
5. Neither the Congress nor a State may nullify an act of the other. 5. The roles of the Congress in terms of national-state relations are facilitating and leadership ones.
6. One plane of government does not employ coercive powers against the other plane. 6. The Congress uses its power to regulate interstate commerce to assist the State by prohibiting the use of such commerce to promote immorality or otherwise violate the laws of a State.
7. Changes in the power distribution between the two planes of government can be accomplished formally only by constitutional amendments. 7. The Congress may delegate one of its powers, such as regulation of the insurance industry, to the States.
8. Inter-plane relations are minimal as each plane operates autonomously by employing its enumerated or its reserve powers.
Source:Zimmerman(1992 b.)
41


its multiple dimensions in the analysis of
federalism.
In such a relationship the individual parties
might be presumed to 1) build capacity and allocate
resources to enable progress toward a common goal;
2) assume responsibility and accountability for the
authority they have been given to pursue the goal
and; 3) recognize and respect the roles and
responsibilities of other parties with whom they
share the goal.
In areas where responsibility is shared with
others collaboration is also important. Each party
would be expected to establish and carry out
policies that were 1)compatible with the other;
2)recognize the limits of authority of other
parties; and 3)maintain sensitivity for the
political, economic and other factors that could
influence the response of one level of government
exercising power over the other. The selective use
of force or power by a federal agency over state and
local agencies may not be wholly inconsistent with a
cooperative relationship. A cooperative
relationship implies shared power. It is necessary
42


to determine if the use of power becomes a zero-sum
game. Nice (1987, 9) suggested that cooperation may
result in achievement of a mutual goal more readily.
If the participants hold to mutually exclusive goals
then circumstances may arise for which a zero-sum
situation arises in which one party gains and one
loses (Nice 1987, 9)
In that case the first test would be to
determine if all affected parties had input into the
development of the policy in question and if they
shared the goals of the policy. The second test is,
whether specific sanctions were incorporated into
the policy for failure to perform or achieve
selected goals. The final test is, whether the
sanction was administered following a good faith
effort to comply or was it imposed as a result of a
failure to try and achieve the goal. The latter
would be consistent with the appropriate use of
force in an otherwise cooperative relationship, if
that force resulted in accomplishment of the shared
goal.
A key issue which helps to define whether a
cooperative federal-state-local relationship exists
43


is: what type of political power is exercised by the
national government? Is it "power, over" or "power
to" (Stoker 1991, 15)? In this context Stoker helps
to define the nature of cooperative governance.
When there are numerous centers of authority with
each pursuing their own ends the purpose of
governance is not to command but to cooperate and to
create the capacity to act. This is the "power to"
accomplish the collective goals (Stoker 1991, 16).
An uncooperative relationship in the context of
federal-state-local policy implementation might be
characterized by federal dominance in policy
formulation with little state and local input, top-
down implementation strategies imposed on states,
limited flexibility for state or local governments
to address their priorities, unilateral top-down
enforcement decisions and/or, refusal or delay in
adoption of required implementation policies or
guidance by any of the three levels of government.
Elazar also reinforced Grodzin's earlier point
that the term cooperative does not necessarily mean
the absence of a hierarchy of power among the
various levels of government. In a cooperative
44


system each level of government retains primary
jurisdiction over certain functions., with
overlapping responsibility for others. National and
state governments must maintain autonomous powers to
make the term cooperative federalism meaningful.
This was evident as the power of the national
government was increased as a result of being the
source of grant-in-aid funds because it could
influence the response of state and local government
through the creation of conditions for receiving
grant funds. The result was the establishment of an
informal preemptive relationship of sorts over
participating states.
The distinguishing features of a cooperative
relationship are those of balance and
interdependence. The essence of most public policy
results from the interaction of governments at the
federal, state and local levels. Though the
Constitution identifies areas of reserved powers for
federal and state governments, few policy decisions
can be made without consideration of the influence
of that policy on all other levels of government.
The concept of cooperative federalism is consistent
45


with the fact that it is unlikely that any policy
arena exists at any given level of government that
is so exclusive as to not potentially influence
another level. A cooperative relationship suggests
a place on the continuum between the extremes of a
mutually exclusive or a totally dominant
hierarchical relationship. It also implies a
flexibility to enable that place to shift one way or
the other while still maintaining the features of
cooperation and maximizing productivity.
In practice, federalism is focused on the
administration and implementation of public
services. The provision of services is shared by
different levels of government and involves all
government functions. Representation of state and
local interests comes from the decentralized nature
of the political process. During the post-
Depression period and the New Deal the public looked
to the national government for leadership in
addressing the special issues of the population.
Cooperative federalism established a new
relationship between the national and sub national
governments. There is little doubt that the power
46


of the national government increased substantially
under the banner of cooperative federalism.
At issue in this research is the question of
whether the description of cooperative federalism
above adequately and accurately characterizes the
relationship between federal and sub-federal
governments regarding implementation of the Clean
Air Act during the study period.
Influence of the Supreme Court
Within the jurisdiction assigned to it by
Article III of the U.S. Constitution, the Supreme
Court has been faced with the duty of interpreting
that document to maintain an effective balance of
authority between national and sub national
governments.
The common law doctrine of implied powers
prescribed three areas of authority for states -
police, taxing and eminent domain powers (Tribe
1978, 422). The state's police power gives it the
authority to enact laws to protect health, safety
and the general welfare of the people. The fifty
states have police power whereas the national
47


government is a government of delegated power (Grad
1973, 5). That police power is the source of
authority from which state and local environmental
regulation emanate. The commerce clause is the
chief source of Congressional power to regulate
activity in the states (Tribe 1978, 232).
There have been dramatic shifts in court
opinion with regard to the scope of Congress'
legislative power. The Marshall Court (1800-1835)
was protective of its authority to render ultimate
judgment regarding unconstitutional actions of the
branches of the federal government (Walker 1981,
49). It was particularly protective of Congress'
powers under the U.S. Constitution while recognizing
that the states had some sovereign power.
Marshall's pro-federalist decisions were in contrast
to the equally strong anti-federalist sentiment of
the Taney Court (1835-1863). From 1887 until 1937
the Court repeatedly struck down Congressional
action as unauthorized under the commerce clause
(Tribe 1978, 234). During that time the Court
attempted to preserve the distinction between the
exclusive police power of the states and the also
48


exclusive power of Congress to regulate interstate
commerce (Tribe 1978, 234)
In 1937, the Court turned away from its
restrictive approach and returned to the philosophy
of Justice Marshall's early Court. In a landmark
decision, NLRB v. Jones & Laughlin Steel Corp., 301
U.S. 1 (1937), the Court deferred to the concept of
"substantial economic effect" and determined that a
broad range of activities were sufficiently related
to interstate commerce to justify Congressional
action. This change in interpretation followed
directly after the Constitutional crisis of 1936-37.
President Roosevelt responded to his frustration
with the Court's failure to broaden its
interpretation of the power of Congress by proposing
a plan that included expanding the Supreme Court to
fifteen justices.
As a result the Court extended its
interpretation to include not just acts which alone
would have a substantial economic effect on
interstate commerce but also acts that would be
significant in their aggregate economic effect
(Tribe 1978, 237). This cumulative effect principle
49


provided the basis for Congress to assume authority
to enact civil' rights legislation.. That authority
was extended to pave the way for the modern
environmental era and the assumption by Congress of
authority to regulate in the environmental arena on
the basis of its power under the commerce clause
(Tribe 1978, 237).
Responsibility for the formulation of a broad
range of policy was now focused at the federal level
and the role of state and local government as policy
makers began to diminish.
Variations of Cooperative Federalism
More cooperative and interdependent
relationships developed among the three levels of
government during the 1960s. However, that was
accompanied by a growing number of more complex
issues for which the federal government was looked
to for leadership. The reliance on the federal
government resulted in an overloaded system of the
1970s and what was described as the subsequent
collapse of cooperative federalism (Walker 1981,
100) .
50


By the end of the 1960s a new conflict was
emerging that resulted in the development of.
cooperative federalism's conceptual offspring. The
following discussion will describe how federalism
was rather explicitly addressed in the Johnson,
Nixon and Reagan administrations. Each called for
new attention to the role of state and local
government. Many promoted the return of
responsibility and authority to the states. The
actions of Congress, however, suggested a somewhat
different approach to federal-state relations. They
applied the regulatory command and control
philosophy to establishing and enforcing mandates
that defined the responsibilities of state and local
government. Congress and the administration were
often working in competition with each other. The
result of this competition was a conflict between
Congress and the states in addition to the
competition between Congress and the federal
Executive branch. Congress preempted the role of the
states in public policy formulation. The States'
view was that they could be more effective with a
relationship more reflective of cooperation. The
51


following discussion will describe examples of the
unique perspective of various presidential
administrations toward federalism.
Creative Federalism
The key change in intergovernmental relations
initiated by President Johnson was the expansion of
certain government programs to the local level. By
1968, about 70 federal grant programs allowed funds
to bypass states and go directly to cities, counties
and other local agencies and organizations (Walker
1981, 102).
The foundation of Johnson's Great Society
programs was conditional grants-in-aid. More than
200 new grant programs were enacted during his term
(Walker 1981, 103). It is important to note that
there was not a question as to whether the federal
government should administer any of the new
programs. It was clear that the state and local
governments shared the responsibility for
implementation. The role of the federal government
was to establish the goals and objectives of the
grant-in-aid programs and eligibility requirements
52


for public and community participation. State and
local governments were viewed as key players in the
implementation of the Great Society programs (Walker
1981, 104).
This creative federalism expanded the range of
new grant programs and the diversity of
participating state and local agencies. It relied on
federal, state and local sharing of
responsibilities; there was no division of functions
between levels of government; federal, state and
local officials were allies not adversaries; and it
represented the concept of one government serving
one people, therefore the name, Great Society
(Walker 1981, 104). .
Federalism during this period clearly was
characterized by cooperation and the absence of
overt state opposition to federal direction. Local
governments were particularly appeased because large
sums of federal grant funds were flowing directly
into communities, yet an important variation emerged
that would be exploited in the next 20 years. The
use of grants-in-aid has been characterized as
"informal" federal preemption. The federal
53


government was able to identify conditions and
eligibility requirements for such grants yet the
process was described as informal because
participation by state and local government was
voluntary. Preemption would soon become a popular
tool for the control of the policy process.
New Federalism
President Nixon's New Federalism theme was
introduced in his inaugural address and carried
through State of the Union and budget messages
during his term. He described the need to "reverse
the flow of power and resources back from
Washington to the States and communities" (Lieber
1975, 2). It was also ironic that during this same
period of time when Nixon was returning authority to
the states Congress passed the Clean Water Act and
the Clean Air Act that were unprecedented in their
preemptive nature. Nixon was calling for greater
decentralization of the federal departments,
devolution of power with greater'discretion to state
and local units of government and streamlined
service delivery (Lieber 1975, 106). The hallmark
54


of the New Federalism was the introduction of
general revenue sharing. This concept provided
federal funding with the decision making
responsibility at the state and local level. State
and local government had considerable flexibility
with regard to how revenue sharing moneys were
expended. Nixon's New Federalism returned a measure
of independence to the states yet it did not go so
far as to return to laissez-faire or dual
federalism.
William Safire, writing as a modern day
Publius, wrote "The New Federalist Paper No. 1" that
outlined the principles of the New Federalism that
President Nixon promoted. These principles are as
follows:
1. Acceptance of national goals and the
assumption of responsibility for achieving
them;
2. Leeway for local option;
3. Federal and judicial checks on any
unfairness;
4. Power be permitted to seek its own level of
efficient response;
5. Local innovation, providing for a variety of
experimentation;
55


6. Reliance on individual responsibility; and
7. Citizen thought and action at national and
local levels (Satire 1972, 111-112).
What prevented a more effective
application of these principles was the
conflict that developed between the executive
and legislative branches as developed below.
Another Version of New Federalism
In 1980, President Reagan renewed the call for
a New Federalism, though he did not appear to have
the same motives as Nixon. The primary motives of
the Reagan Administration were the deregulation
business and reduction in the cost of government.
He called for regulatory reform and the use of cost-
benefit analysis to support the adoption of any
regulations, free market allocation of resources,
and devolution of programs to the state and local
levels where feasible (Lester 1986, 151).
Although Reagan had been the Governor of
California and could be expected to support an
increased state role in policy implementation, it
appeared that his objectives were deregulation and
budget reduction with devolution of responsibility
56


and authority to states as a convenient vehicle to
shift fiscal and programmatic burdens away from the
federal government. Gage (1990) described this era
as one characterized by "budget-driven" federalism.
The strategy for implementation of Reagan's New
Federalism included greater oversight of the
regulatory process by the Office of Management and
Budget and delegation of responsibilities to the
states through the partial preemption framework of
regulatory federalism. Overall, he proposed a more
innovative and flexible regulatory program in
environmental protection that would complement
market forces and bring environmental decisions
closer to the people being affected by them (Welborn
1988, 40).
The bottom line of this new regulatory scheme,
however, was the reduction of fiscal support to
state and local government accompanied by increased
use of regulatory tools to ensure the supremacy of
federal policy. In the environmental protection
arena the federal policy was characterized by
significant reduction in federal program funds for
EPA and the states along with the de-emphasis of
57


enforcement. Decentralization through the
devolution of power did not really occur as
advertised (Kincaid 1990, 139). The ideals of
cooperative federalism lost when they competed with
goals such as reducing the federal budget,
deregulating the private sector and supporting the
conservative social agenda (Conlan 1993, 360).
The EPA budget, including grants-in-aid that
were prominent during earlier years, became subject
to significant cuts during the early 1980s. In
constant (1982) dollars the EPA budget for operating
programs was cut from $1.5 billion to about $1.0
billion between 1980 and 1983 (GAO 1988, 21). The
trade-off for fewer resources was supposed to be
more independence in program implementation.
While the budget increased during the
remainder of the decade it didn't regain the 1980
level in constant (1982) dollars (GAO 1988, 21).
During the same time (1983-1987) state grant funds
increased only 13% in constant (1982) dollars
despite significantly increased responsibilities in
such areas as hazardous waste, solid waste and
drinking water. It was not until 1991 that the EPA
58


budget returned to the 1979 level of funding (GAO
1991, 16). Despite some increases in the EPA budget
during the mid-1980s the Office of Management and
Budget continued to hold regulations hostage that it
thought were burdensome to business. This further
inhibited the Agency's effectiveness in meeting its
mandates.
While the executive branch promoted the
president.'s version of federalism there was growing
pressure in Congress to assume policy-making
responsibility in what had, heretofore, been the
near exclusive domain of state and local government.
By enacting the Clean Air Act of 1970 Congress had
already crossed a threshold by preempting state and
local authority in environmental health legislation.
Congressional response to environmental program
implementation by executive branch officials such as
Interior Secretary James Watt and EPA Administrator
Anne Gorsuch in the early 1980s involved a re-
assertion of legislative authority in matters that
had been largely delegated to the executive branch.
59


Congressional Federalism
What was later described, by Walker (1981,.
108), as Congressional Federalism was characterized
by actions that were incremental, confrontational,
strongly categorical, heavily conditional and
politically cooptive. Moreover, there was not a
long-term strategic plan for federal preemption.
Each Congressional action became a product of the
fragmented system of lawmaking that exists in
Congress. The overlapping jurisdictions of
Congressional committees and sub-committees and
multiple points of entry into the legislative system
suggests that Congress typically addresses problems
in a very ad hoc way. This tendency may also be
attributed to the need for these elected officials
to show short term, positive results in response to
their constituents' demands. This short term focus
would not always enable Congress to evaluate a
comprehensive, long-term strategy that addresses a
problem in a comprehensive way.
Congress is forced into this incremental mode
by its fragmented structure. The proliferation of
committees and subcommittees, many of which have
60


very narrow interests, are charged with recommending
action to address issues. The power structure .in
Congress and the importance of power and influence
often inhibit cooperation between various committees
in addressing a problem (Walker 1.981, 108) .
The conflict between Congress and the executive
branch also influenced intergovernmental
relationships. For example, later discussion of the
Clean Air Act will describe how the confrontation
between Congress and President Nixon resulted in
more far- reaching goals for the Act than either
would have promoted without the threat of being
overshadowed by the other. In this case such
conflict may have been more visible due to the
divergent agendas of the conservative Republican
administration and more liberal Democratic Congress.
The Congress responded to the apparent reluctance of
EPA to administer the major environmental laws
aggressively with more prescriptive requirements and
deadlines to force action in the executive branch.
The result of this tension between the
legislative and executive branches was that the
ideals of federalism seemed to become secondary to
61


the desire of each branch to control the policy
outcome. An example is the enaction of the
preemptive CAA statute in 1970 that resulted from a
conflict between Richard Nixon and presidential
contender Edmund Muskie (Cohen 1992, 14) A similar
scenario occurred in the mid-1980s when Congress
reauthorized the Safe Drinking Water Act with the
specific requirement for 80 new maximum contaminant
level standards by a date certain. Even from the
earliest national environmental laws, policy was
established that featured unrealistic expectations
and insufficient resources to achieve the
established policy goals (Schoenbrod 1983, 748;
Ruckelshaus 1985, 460). This creates vertical
conflict between the federal, state and local
agencies charged with the implementation of these
policies. The result of the conflict is reluctance
of state and local agencies to implement the
mandates. That leads to further coercion or cooption
by Congress through the threat of sanctions for
failure to perform. Ultimately, it becomes a
vicious circle of conflict.
62


The importance of these issues to the ability
of state and local government to implement national
programs cannot be overemphasized. Despite the
rhetoric about what Congress or the executive branch
of the federal government claims to believe with
regard to federalism, how it is practiced depends on
other factors such as those described above. Conlan
(1993, 374) eloquently summarized the situation and
suggested a philosophy that he believes is shared by
much of the general public:
Most Americans continue to pay lip service to
the ideals of federalism and decentralization,
but they, like the politicians who represent
them, appear to be generally unwilling to
sacrifice specific policy goals to pursue this
ideal.
Another feature of Congressional federalism -is
its cooptive nature. Beginning in the 1970s
national interest groups came to the forefront in
the political process. In the early years of the
environmental movement, interest groups made a
strategic decision to focus their efforts at the
national level. The alternative was to organize in
50 state capitols where they would try to influence
the development of environmental policy. The
63


explosive growth of interest groups in Washington
forced Congress to be responsive to them. The use
of the politically cooptive method of satisfying all
groups emerged during that time. It was especially
prevalent during the process of reauthorizing
environmental legislation through which every
interested group was given the opportunity to
participate. Congress made the effort to pacify
each group in one way or another. This method of
policy making has been compared with the traditional
legislative method of "logrolling", or trading votes
with others to gain support of individual issues,
only on a much larger scale with many more players
(Walker 1981, 111-112).
One could also speculate that the tactics of
the special interests groups to centralize their
power in Washington may have falsely empowered
Congress to take a more authoritative stance with
regard to environmental policy issues than the
public at-large would have considered necessary.
The negative response of state and local politicians
to federally driven environmental policy suggests
that this notion may have merit.
64


The fragmentation within Congress, the tension
with the executive branch and the desire to satisfy
the demands of each interest group caused the
influence of state and local government to be
further diminished. Federalism became a secondary
consideration in the deliberations of Congress.
Walker (1981, 112) summarized the paradoxes
that have emerged from the conflict in the rhetoric
of the executive branch toward the ideals of
cooperative federalism and the realities of
Congressional action. A few examples from the
period 1969-1976 follow:
1. A presidential effort to curb categorical
grants was mounted yet their number multiplied.
2. Efforts to devolve greater authority to sub
national governments resulted in an increase in
intrusive conditions.
3. An effort to streamline the grant delivery
system was met with more programs, more
recipients, and more conditions.
EPA and Environmental Federalism
In a 1988 management review of EPA, the General
Accounting Office (GAO) reported on the EPA/state
relationship. GAO claimed that EPA was working to
65



put into place a relationship that acknowledged the
states' increasing role as key partners and yet.
assured that delegated programs were carried out
effectively. That relationship should, according to
EPA, include the following:
1. A clear and appropriate division of
authority and responsibilities;
2. State involvement in goal-setting, policy
formulation and planning;
3. Reporting and other oversight mechanisms
that provide control and evaluative information
that EPA needs (GAO 1988, 144).
These principles have been reflected in the
following four elements of what EPA claims to be an
effective and cooperative federal-state working
relationship:
1. A clear definition of roles that organize
the work so that each element of government
makes its unique contribution and efforts are
coordinated, not duplicative;
2. Clear negotiated performance expectations so
that each party knows what is expected of it;
3. An opportunity for each party to
appropriately influence decisions affecting its
role and capability to carry them out;
4. A sense of mutual trust and support.
66


EPA went on to inform GAO that what they termed
"environmental federalism" was a major management
priority. This form of federalism is intended to
recognize that each level of government has a proper
role in public health and environmental protection
and that only the integrated and coordinated efforts
of federal, state and local agencies would best
serve the public interest.
Many variants of cooperative federalism have
been described since the concept first emerged in
the 1930s. It would be difficult to define a single
set of parameters that was consistent across each
variation. It seems that the term "cooperative"
referred to the single dimension described earlier
(that is, parties working together to achieve a
common goal). Only during the Nixon administration
and later in the EPA study of environmental
federalism was a more explicit and multiple
dimension definition used.
During the 1970s and 1980s the use of
preemption to control policy formulation and
implementation was seen as moving intergovernmental
relations toward the coercive end of the federalism
67


continuum. The growing use of preemption had a
profound influence on intergovernmental relations.
The Growing Use of Preemption
Since the New Deal the federal government had
assumed much greater authority to address the
economic and social welfare problems of the nation.
It appears that since 1970 Congress has taken every
opportunity to strengthen its dominance over
national environmental policy formulation. Public
interest groups and industry have also prevailed
upon the federal government to assume more
leadership in the environmental arena.
Despite.President Johnsons Creative
Federalism, President Nixon's New Federalism, or
President Reagan's New Federalism, the coercive
elements of the intergovernmental relationship
became more visible. The most visible form of
coercion was the use of formal preemption.
The concept of preemption provides the
foundation for the federal response to policy needs
in areas that state or local government were not
considered to be sufficiently effective or where
68


pressure on Congress had otherwise encouraged its
use. This new direction in intergovernmental .
relations was also marked by the changing emphasis
from financial subsidy to compulsory regulation
(ACIR 1984, 3).
The 1970s were characterized by the
proliferation of new, preemptive regulatory
programs. Congress assigned state and local
governments major responsibility in the
implementation of these programs but only a minor
role in the development of policy and guidance for
implementation. This is in sharp contrast to the
time prior to 1970 in which Congress repeatedly
affirmed the sovereignty of state and local
government in certain policy areas, such as health
and environmental protection.
The political factors that influenced the
growth of new federal programs, beginning in the
1930s, have been described. They include supportive
public opinion, the emergence of interest groups,
budgetary constraints, changes in Congress and the
liberal interpretations of the preemptive powers of
Congress by the Supreme Court.
69


The expansive interpretation of the commerce
clause that began after 1937 and the loosening of
restraints on the exercise of Congressional powers
provided bases for federal preemption. Judicial
decisions nationalized the protection of rights.
But as the fiscal capacity of the federal government
began to decline during the 1980s Congress started
to rely upon its regulatory powers to dominate
policy development and establish national
priorities. In addition, the growing concern about
the competitiveness of the U.S. in the world economy
has motivated Congress to provide more national
direction (ACIR 1992, 37-38).
Types' of Intergovernmental Regulatory Strategies
Four major intergovernmental regulatory
strategies have been commonly used to encourage
acceptance of national goals. They include direct
orders, cross-cutting requirements, crossover
sanctions and partial preemption. The literature
has described each of these methods of preemption
(ACIR 1984, 7; ACIR 1992; Hamilton 1990, 27).
70


Direct orders require or prohibit certain
action by state or local officials under the threat
of civil or criminal penalties. The Equal
Employment Opportunity Act of 1972 is an example of
a direct order statute.
Crosscutting requirements apply horizontally
across all or many federal assistance programs.
Such programs as the Civil Rights Act and the
Americans With Disabilities Act are examples of this
technique. Most environmental statutes have
crosscutting requirements. For example, the
National Environmental Policy Act (NEPA) requires
the preparation of an environmental impact statement
for a major action that may significantly affect
environmental quality.
Crossover sanctions threaten the termination or
reduction of aid under one program unless the
requirements of another are met. The commonly cited
example of crossover sanctions is the threats to
highway construction funds in states that did not
meet statutory deadlines for attainment of ambient
pollutant concentrations.
71


Partial preemption is the approach most
commonly relied upon by Congress in connection with
environmental statutes. Partial preemption statutes
establish federal standards, but delegate
administration to states if they adopt equivalent
standards and meet certain requirements for program
administration. Other partial preemption statutes
establish minimum national standards and then allow
states to enact more stringent state standards to
meet their unique needs.
It is not uncommon for individual statutes to
combine more than one preemption strategy. For
example, the Clean Air Act of 1970 employed partial
preemption, crosscutting requirements and crossover
sanctions.
The Role of Preemption
The concept of preemption can have positive and
negative connotations, depending upon the
circumstances in which it is used and the
perspective of the analyst. On the positive side,
there are issues for which a minimum standard or
national uniformity should apply. Part of the
72


incentive for federal regulation of environmental
quality emerged from the disparity in economic
opportunity that existed between states or
communities with more stringent standards than
neighboring states. There were also spillover
effects related to health and environmental risk
that resulted from lax regulations in one community
which affected a neighboring community. Preemption
also proved a useful tool for encouraging state
involvement in a program. It provided states with a
method of overriding state and local political or
economic fears that could otherwise inhibit state
responsiveness to environmental issues.
On the negative side, federal actions like
unfunded mandates, severe sanctions and prescriptive
one-size-fits-all requirements for the states have
also been criticized as having a negative influence
on the quality of intergovernmental relationships
and the effectiveness of policy implementation.
These were some of the findings of a 1980 study by
the GAO analyzed the perspectives of state
environmental administrators about the obstacles to
73


managing federally directed environmental programs
in the states'.
In a discussion of how preemption might be used
effectively, the Advisory Commission on
Intergovernmental Relations (ACIR 1984) proposed the
following five principles:
1. To protect basic political and civil rights;
2. To ensure national defense and proper
conduct of foreign relations;
3. To establish uniform standards affecting the
flow of interstate commerce;
4. To prevent state and local actions that
adversely affect another state;
5. To assure integrity in the use of federal
grants and contracts with state and local
government.(
There is little evidence that these principles
are regularly considered. It has been suggested
that the current system of preemption "undermines
governmental responsibility and public
accountability" but state and local government do
not have the constitutional or political leverage to
change the system (Kincaid 1990, 139).
At first, it might seem that any form of
preemption would present an immediate conflict with
74


the concept of cooperation. Preemption may be more
often associated with coercion and.the use of "power
over" another level of government. The ACIR
principles listed above suggest that preemption
could be used by the federal government, in this
case, to assure it is meeting its responsibility of
equal protection under the Constitution and not to
unduly restrict state and local autonomy.
What was described as cooperative federalism in
1930 may have become more coercive by 1990 with
little study as to the value or need for forced
compliance across the spectrum of policy issues.
Between 1970 and 1989 there were 208 preemptive
statutes enacted by Congress as compared with 206
from 1900-1960 (ACIR 1992, 9). These figures
suggest that there were few barriers to check the
expansion, by Congress, of its preemptive powers.
Administrative Agency versus Political Perceptions
It is important to acknowledge the existence of
two other key elements in the study of the
intergovernmental relationship between federal,
state and local levels of government. This study is
75


intended to portray the perceptions of the
administrative agencies that are charged with the
implementation of environmental mandates. These
agencies, at all three levels of government, work in
an environment in which they must be responsive to
political pressure from within their own
jurisdictions as well as pressure from other
administrative agencies at other levels of
government. Their job is a very practical one of
balancing the political demands with the technical
and administrative issues associated with
implementing the enabling statute.
The second element is the political perception
of the effectiveness of intergovernmental relations
in achieving improved air quality. The perceptions
of elected officials at the various levels of
government might be quite different than those in
the administrative agencies. They certainly affect
the way in which the mandate is carried out in any
given city or state. While both the administrative
and political points of view are important, this
study will focus on the view of the administrative
agencies charged with meeting the requirements of
76


the Clean Air Act with reference, as appropriate to
the influence of political decisions on the ability
of the agencies to meet their objective
The Current State of Federalism Theory
The present study will evaluate the
intergovernmental relationship in implementation of
the Clean Air Act in an effort to begin construction
of a theory of federalism that is grounded in the
results of this case study research. Of particular
interest are those features of the intergovernmental
relationship that influence the effective
achievement of statutory goals. Also, how coercive
elements such as preemption have been used as tools
to drive air quality improvement will be analyzed.
Prior to a discussion about federalism and the
evolution of environmental policy, an introduction
to the more recent discussions in the literature
about federalism theory might be useful. This
discussion will make the transition from the generic
description of federalism, and how it evolved
through several decades, to the application of a
77


conceptual theoretical construct to air quality
policy for the present study.
It is Zimmerman1s contention that a general
theory of federalism must include the premise that
there is no optimal degree of centralization or
decentralization of political power, that vertical
coordination problems are inherent in a system where
functional assignments shift between planes of
government and that interplane coordination is,
hindered by the piecemeal enactment of statutes
distributing responsibilities to several
administrative agencies (Zimmerman 1992a, 203) His
concept of a general theory of federalism includes
the postulates of dual and cooperative federalism
that are described in Table 2.1.
The absence of a general theory that is
reflective of federalism today should not deter the
discussion of a proposal that would result in more
effective intergovernmental relationships and
promote the achievement of statutory goals enacted
by Congress. Zimmerman developed a concept he
termed true cooperative federalism. He argues for a
definition of cooperative federalism reflecting the
78


reliance of each plane of government upon the others
for the performance of certain functions and
investment of funds to achieve national goals.
(Zimmerman 1991, 161). This concept relies on more
than merely a descriptive definition of the term
cooperative. It involves a more complex
relationship based on the multiple dimensions
described previously. This magnified view of
cooperation, to expose its key components, will
enable a more critical analysis of the
intergovernmental relationship that exists between
federal, state and local agencies in Clean Air Act
implementation. Such a theory can recognize the
contributions of cooperative and coercive elements
through a flexible, mutually interdependent
relationship that can vary in response to need. For
example, this theory might suggest a contingent
preemption to achieve national goals. A statute
would not apply to a state unless it failed to meet
minimum national standards. In general, the Clean
Air Act embodies this concept. In support of such an
approach, Derthick (1987, 66) referred to a
Madisonian middle ground" that would provide for
79


due supremacy of the national government while
leaving the states to be useful where they are
capable. She claimed that history shows Madison was
correct in presuming that the federal government
would not be well suited to the entire task of
governing the country.
Ostrom also supported this balancing concept.
He suggested that government in a democratic society
is not simply a matter of command and control, but
that there are multiple structures that have access
to diverse methods of problem solving (Ostrom 1991,
17). He further points out that the concept of
federalism enables people to break out of the
conceptual trap inherent in the theory of
sovereignty that presumes the existence of a single
center of supreme authority that rules over society
(Ostrom 1991, 8). Lowry (1992, 4) provided an
additional perspective when he commented that a
system of federalism, where responsibility is
shared, can provide a buffer for dangerous
concentrations of power away from the people while
still facilitating citizen participation.
80


Congress' approach to preemption has been ad
hoc resulting in problems of accountability,.
coordination, costs, effectiveness and
responsibility. The discussion of the evolution of
environmental policy will show that preemption has
not uniformly resolved environmental problems. This
suggests that Congress should exercise great care
when employing its powers of preemption to ensure
that impediments are not created that impose
restrictions on the ability of states to develop and
implement regulatory programs. It is intended that
this study can help identify the role preemption
might play in an effective intergovernmental
relationship.
A Conceptual Framework for Cooperative Federalism
Zimmerman described a theory of true
cooperative federalism that provides a starting
point for construction of a conceptual framework.
The work of the General Accounting Office and Tobin,
described in Chapter 1, and that of Advisory
Commission on Intergovernmental Relations and others
81


discussed previously, offer additional elements for
the construction of this definition.
From that work there were six categories of
factors considered in the definition of cooperative
federalism used in the present study. These
included: 1) an adequate statutory foundation; 2)
division of authority and responsibility; 3) use of
power and coercion; 4) flexibility; 5) mutual trust
and support; and 6) state and local initiative.
Table 2.2 lists the specific factors included
in each of these.categories. The discussion in
Chapter 4 will describe the application of these
theoretical components to the study instrument and
case study interviews.
The literature has described two basic
descriptive theories in the evolution of federalism
since the Constitution became the foundation of our
democracy. These are dual and variations of
cooperative federalism. The ideals of federalism
often seem to be overshadowed by other factors in
the public policy arena, yet the federal-state-local
relationship remains as a critical part of effective
82