Energy Policy

State Primacy in Regulatory Implementation


What is primacy?

Primacy is the act of coming first or foremost. So when we look at patchwork networks of energy policies spanning all geographic scales from the local level through the international community, it's important to understand how primacy is determined and how this influences the implementation of a policy.

The most common level of interplay between different geographic scales as it relates to primacy is that between the state and federal governments. As you've learned in earlier lessons of the course, many issues relating to climate and energy policy have yet to be fully addressed at the federal level, leaving states to lead the way with innovative policy. As the federal government 'catches up' to the states, what does that mean for the policies already enacted and implemented at individual state levels?

Let's look at tailpipe emission standards in California as an example of the battle for primacy:

California is the only state in the country with its own regulatory agency related to air quality, the California Air Resources Board. It was established in 1967 in the Mulford-Carrell Act and is a cabinet-level agency within the US EPA. Why don't any other states have a comparable entity? CARB was established before the Clean Air Act was passed at the federal level (in 1970). Other states are free to follow the CARB standards, but they do not have regulatory authority to establish any themselves - the federal act enjoys primacy over states in this matter.

While the federal government did recently update CAFE standards (which regulate passenger vehicle fuel economy), during the process, California decided they wanted to enact their own, more stringent Clean Car Standards, and 13 other states wanted to adopt them. As you might imagine, some vehicle manufacturers opposed this move (and challenged the ruling in court), recognizing that in order to stay competitive in these markets, their vehicles would need to progress to more stringent fuel economy standards more quickly than they initially considered under the federal standards because California and the other states constitute such a signifcant portion of the market.

The new standards began phasing in starting with model year 2009. To learn more about the proposed regulations, read this Final Statement of Reasons for Rulemaking from the Air Resource Board (updated February 2010).

The California tailpipe emissions example is one in which state primacy remained intact even with federal regulation. When discussions around emission trading on a national scale were circulating through the House and Senate, one of the primary concerns was whether state and regional programs would maintain primacy under a federal system, or if they would simply be absorbed. That case is a little different, though, because those regional emission trading programs were established with the consideration that, someday, a federal system would come along and take over. The smaller-scale programs were merely pilots or test cases to illustrate that greenhouse gas emissions could be reduced with a market-based approach driving technological innovation and private investment. The likely outcome would not be for state primacy to be maintained in a federal cap and trade emission trading program, but rather to have those programs be folded into the larger federal system.

The function of primacy as it relates to public policy can be sensitive. States strive to maintain autonomy, and in the case of environmental and energy legislation, often act in areas very important to their own interests if the federal government fails to do so. They spend considerable time and resources developing and implementing programs and, consequently, can be defensive then of federal regulation preempting their efforts.