Competitive Federalism: Environmental Governance as a Zero-Sum Game

• Author: Shannon Roesler
• Pages: 193-218

193

Chapter 9

Competitive Federalism:

Environmental Governance

as a Zero-Sum Game

Shannon Roesler

The political climate that facil itated the passage of major pollution con-

trol statutes such as the Clean Air Act (CAA)1 and the Clean Water

Act (CWA)2 is dicult to imagine today. When the U.S. Congress

passed the major pollution control laws in the 1970s, it was responding to a

growing consensus that federal environmental regulations were essential to

the protection of human health and the environment. In their absence, ma ny

feared that states would engage in a “race to the bottom,” setting lax envi-

ronmental regulations in an eort to attract industry and economic growth.

Policymakers also recognized that environmental pollution increasingly pre-

sented problems of scale; pollutants emitted into the air and discharged into

water bodies did not always remain within the political borders of a state. A

federal role was perceived as a necessary means to ensure the ecient regula-

tion of interstate pollution.

Today, political support for new environmental regulations at the federa l

level is less uniform, particularly given the resistance to federal regulation

by a sizeable number of states during the Barack Obama Administration.

Along with industry, states routinely led lawsuits challenging new envi-

ronmental regulations as abuses of federal power. Instead of thinking seri-

ously about shared governance, the political default in many red states was

to litigate with the hope of invalidating the federal rule. is turns envi-

ronmental governance into a zero-sum jurisdictional game; if the federal

rule is invalidated, the state wins, and if the rule stands, the state loses. Of

course, environmental regulation is not a zero-su m game; the optimal com-

bination of local, state, and federal regulation depends on a number of fac-

tors, including geographic scale, exi sting regulatory structures, and va rious

1. 42 U.S.C. §§7401-7671q.

2. 33 U.S.C. §§1251-1387.

194 Beyond Zero-Sum Environmentalism

market forces. Unfortunately, when states treat environmental governance

as a zero-sum game, they preclude the consideration of win-win shared-

governance scenarios. Along the way, time, eort, and money are wa sted in

protracted legal battles that delay important protections for human health

and the environment.

is chapter investigates the recent turn to competitive federalism in the

context of anti-pollution regulation. It begins with a brief overview of con-

current jurisdiction contemplated by antipollution statutes such as the CAA

and CWA and the increase in state challenges to federal authority under

the Obama Administration. e second part examines the states’ federal-

ism arguments from both a constitutional and a theoretical perspective. e

chapter then explores some of the economic and political forces behind these

cases. With the polarization of politics generally, the oces of state attor-

neys general have grown increasingly partisan. Republican and Democratic

attorneys general now form coalitions and pursue national policy agendas,

a phenomenon likely driven in part by the ow of big money into political

campaigns since the U.S. Supreme Court’s decision in Citizens United v.

Federal Election Commission.3

e chapter ends with some observations about the risks that this trend

poses to the public welfare and democracy. e polarization of politics fueled

by well-organized, wea lthy interests leads to zero-su m rhetoric that pits envi-

ronmental protection against economic growth. Despite this rhetoric, grow-

ing evidence suggests that people do not view environmental protection and

economic well-being in zero-sum terms. e zero-sum rhetoric of public o-

cials is therefore contrary to public preferences and values.

I. From Cooperative to Competitive Federalism

Somewhat ironically, today’s landscape of state-federal litigation takes place

against a model of shared state-federal governance. Every student of federal

pollution control laws learns that they depend on a regulatory model often

called “cooperative federalism.” Under this model, the U.S. Environmental

Protection Agency (EPA) uses its rulemaki ng authority to set minimum stan-

dards limiting the release of harmful pollutants into the environment, and

state-level agencies typical ly implement and enforce these standards t hrough

permit processes. States also have some exibility in deciding how to imple-

ment standards and meet other federal requirements. For example, under

the CAA program that establishes ambient air quality standards for certain

3. 558 U.S. 310 (2010).