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Adaptive Federalism: The Case Against Reallocating Environmental Regulatory Authority

By David E. Adelman & Kirsten H. Engel. Full text here.

A hallmark of environmental federalism is that neither federal nor state governments limit themselves to what many legal scholars have deemed to be their appropriate domains. The federal government regulates local issues, such as remediation of contaminated industrial sites, while state and local governments develop policies on environmental issues of national or even international scale, such as global climate change. The current system of environmental federalism is thus a dynamic one of overlapping federal and state jurisdiction. The system is increasingly threatened, however, by federal legislation and Supreme Court rulings that favor preemptive federal control.

This Article advocates an adaptive model of environmental federalism that reinforces the existing dynamic system. Our approach rejects the dominant economic theory, which holds that regulatory authority should reside at the level of government that roughly “matches” the geographic scope of the subject environmental problem. We show that its one-sided focus on static optimization is ill-suited to the complexity and variability of environmental problems. Drawing on an emerging trend in legal scholarship that calls for a dynamic conception of federalism, our adaptive model recognizes the importance of sustaining both a diversity of regulatory options and the processes for winnowing and refining them. An adaptive framework would exploit local variability, as well as the unpredictability of nature itself, to make the federal system both highly adaptable and resilient to environmental change.

We propose several doctrinal and legislative principles to enhance the dynamic attributes of environmental federalism. These prescriptions include adopting a judicial presumption, and a corresponding principle of legislative drafting, against federal preemption, as well as a more specific presumption against federal regulations that preclude states from establishing more stringent standards. We further advocate tempering uniform federal standards by allowing a small number of competing state standards.