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Contribution to Book
Environmental Federalism's Tug of War Within
THE LAW AND POLICY OF ENVIRONMENTAL FEDERALISM: A COMPARATIVE ANALYSIS (2015)
  • Erin Ryan
Abstract
Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste to water pollution to climate change, environmental federalism cases have always been among the most contentious on the bench, producing some of the most fractured judicial opinions on record. Why is that? In fact, environmental law is uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples—who gets to decide?—in contexts where state and federal claims to power are simultaneously at their strongest. Environmental problems tend to match the need to regulate the harmful use of specific lands (among the most sacred of local prerogatives) with the need to regulate border-crossing harms caused by these uses (among the strongest of national prerogatives). As a result, it is often impossible to solve the problem without engaging authority on both ends of the spectrum—and disputes erupt when local and national ideas on how best to proceed diverge. Ongoing jurisdictional controversies in energy policy, pollution law, and natural resource management reveal environmental law as the canary in federalism’s coal mine, showcasing the underlying reasons for jurisdictional conflict in all areas of law. And they indicate the critical need to better cope with the problems of jurisdictional overlap at the level of federalism theory. Concluding the book, this chapter explores why environmental law regularly raises such thorny questions of federalism, and what the broader federalism discourse can learn from environmental law. Drawing from the theoretical framework that I introduced in FEDERALISM AND THE TUG OF WAR WITHIN (Oxford, 2012; http://works.bepress.com/erin_ryan/17/), Part II reviews the central objectives of federalism, examining the conflicting values they imply and the resulting tension that suffuses all federalism-sensitive governance. Part III evaluates why federalism conflicts are heightened in the context of environmental law. Divisiveness not only reflects the intense competition among federalism values in environmental governance, it also provides key insights into the core theoretical dilemmas of jurisdictional overlap more generally. Part IV probes how environmental law has adapted to manage the challenges of overlap by asymmetrically allocating local, state, and federal authority within various models of collaborative or coordinated governance. Part V concludes with consideration of what the larger discourse can learn from the dynamic federalism innovations emerging from within environmental governance. Environmental law demonstrates that the most successful multiscalar governance is conducted through processes of consultation, compromise, and coordination that engage stakeholders at all levels of jurisdictional scale. The broader federalism discourse is increasingly recognizing environmental federalism for lighting a path away from the entrenched “zero-sum” model, which treats every assertion of authority at one jurisdictional level as a loss of authority for the others. Many areas of environmental law doubtlessly remain imperfect in their implementation of these ideals. Still, every-day environmental governance shows us that, at the end of the day, good multiscalar governance is essentially a project of negotiation.
Keywords
  • federalism,
  • environmental federalism,
  • zero-sum federalism,
  • negotiated federalism,
  • cooperative federalism,
  • New Federalism,
  • dynamic federalism,
  • Balanced Federalism,
  • federalism values,
  • multiscalar governance,
  • intergovernmental bargaining,
  • interjurisdictional gray area,
  • jurisdictional overlap,
  • environmental law,
  • land use,
  • climate change,
  • climate governance,
  • energy policy,
  • water pollution,
  • wetlands,
  • air pollution,
  • nuclear energy,
  • radioactive waste,
  • fracking,
  • New York v. United States,
  • Massachussets v. EPA,
  • Rapanos v. United States,
  • coordinated capacity,
  • conditional preemption,
  • federally supported state implementation,
  • general permitting,
  • federalism and the tug of war within
Publication Date
2015
Editor
Kalyani Robbins
Publisher
Edward Elgar Press
Citation Information
Erin Ryan. "Environmental Federalism's Tug of War Within" THE LAW AND POLICY OF ENVIRONMENTAL FEDERALISM: A COMPARATIVE ANALYSIS (2015)
Available at: http://works.bepress.com/erin_ryan/30/