Attorney General: Hon. George Jepsen, Majority Leader, State Senate, 2000-009 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

March 7, 2000

Hon. George Jepsen
Majority Leader, State Senate
State Capitol
Hartford, CT 06106-1591

Dear Senator Jepsen:

You have inquired whether the State has authority to establish standards for air emissions which are stricter than those established under the federal Clean Air Act, 42 U.S.C. 7401 et. seq. You have also inquired whether the cost of establishing more stringent standards must be borne by the State. For the reasons set forth below, I conclude that the State does have the authority to establish more stringent standards than those imposed by the Clean Air Act and that the State is not required to bear the cost.

"The Clean Air Act, 42 U.S.C. 7401-7642 (Supp. III 1979), establishes a complex federal-state relationship to control air pollution." COUNCIL OF COMMUTER ORGS. V. GORSUCH 683 F.2d 648, 650 (2d Cir. 1982). In keeping with the joint responsibilities created by the Act, the Congress specifically left regulatory options open to the States. 42 U.S.C. 7416 provides:

Except as otherwise provided in sections 119(c), (e), and (f) (as in effect before the date of the enactment of the Clean Air Act Amendments of 1977 [enacted Aug. 7, 1977]), 209, 211(c)(4), and 233 [42 USCS 7543, 7545(c)(4), and 7573]1 (preempting certain State regulation of moving sources) nothing in this Act shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under section 111 or 112 [42 USCS 7411 or 7412], such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section.

The Clean Air Act, thus, specifically permits states to enact provisions more stringent than the federal provisions set forth in the Act.

Next you inquire whether the State is required to assume the costs for the more stringent controls it may require. It is not. A review of the provisions of the Clean Air Act does not reveal any such requirement on those States which choose to impose more stringent pollution control measures than those set forth in the Act. When Congress chooses to impose conditions on the States as a prerequisite for participation in federal programs it must do so unambiguously.

We held that Congress will not be presumed to have created substantive legal obligations [on the states] ... by legislation so ambiguous that a State is unaware of the conditions or is unable to ascertain what is expected of it .... .

GUARDIANS ASSN. v CIVIL SERV. COMM'N N.Y.C. 463 U.S. 582, 637 (1982).

It is therefore the opinion of this office that the Clean Air Act specifically permits states to require more stringent pollution controls than those imposed by federal law and that there is no requirement under the Act that the States pay the cost of compliance with such requirements.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Judith A. Merrill
Assistant Attorney General

RB/JAM


1 These exceptions do not apply to utility emissions.


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