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Federal Supremacy

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Our founding fathers were right on target when they inscribed in the U.S. Constitution the provision Article Six, Clause Two, best known as the Federal Supremacy Clause. It dictates that federal law prevails over state law when the two are in conflict on matters of national consequence.

Federal Supremacy just makes good sense. If for no other reason than proximity, state regulators tend to be more susceptible than federal officials to undue influence by local business interests.

On controversies with ramifications that transcend state lines, federal authorities are usually better suited -- and inclined -- to deal with the big picture. In addressing matters that may have national significance, states can be guided by parochial concerns that don't advance the best interests of the nation as a whole. The federal government is delegated to set minimum regulatory standards that states can often amplify so they can't complain about being subjected to "one size fits all."

With the Supremacy Cause in mind, one looks askance at 21 states' legal challenge to the Environmental Protection Agency's (EPA) authority to oversee a six-state cleanup of the polluted Chesapeake Bay watershed.

The 21 states, mostly Republican-controlled and strong state rights proponents, argue that if the EPA is allowed to micromanage the Chesapeake Bay cleanup, it could easily decide to do the same thing with the Mississippi River Basin or some other waterway.

So what? When state cleanup efforts are seriously in default in rehabilitating waterways of national significance, EPA intervention is a logical -- and welcome -- next step.

No wonder the 21 disgruntled states are worried. Buffeted by commercial special interests, they haven't been able to get their act together to expedite cleanup of some major waterways within their borders. Outflow from the Mississippi River basin, for example, continues to pollute a sizable portion of the Gulf of Mexico.

The 21 complainant states contend that they have a right to regulate land use within their borders, consistent with the "cooperative federalism" framework called for in the Clean Water Act. But "cooperative federalism" doesn't translate into a federal regulator deferring to the states when they are not living up to their part of the bargain.

The 21 states filed an amicus brief joining the American Farm Bureau's appeal of a Federal District Court's decision upholding EPA's right to oversee the Chesapeake Bay cleanup. In the brief, the states argued that "the EPA can create incentives for states to control nonpoint pollution sources, but cannot mandate how states choose to do so."

Thanks to the Federal Supremacy Clause, plenty of lawyers (and judges) would beg to differ, especially if the states were severely failing to meet their environmental cleanup responsibilities.