Competitive Federalism: Environmental Governance as a Zero-Sum Game

AuthorShannon Roesler
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 A ir Act (CAA)1 and the Clean Water
Ac t ( 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 federa l 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 necessa ry 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, particu larly given the resistance to federal regulation
by a sizeable number of states during the Barack Oba ma Administration.
Along with industry, states routinely led lawsuits cha llenging new envi-
ronmental regulations as abuses of federa l power. Instead of thinking seri-
ously about shared governance, the political defau lt in many red states was
to litigate with the hope of invalidating the federa l 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 sta nds, 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.
194 Beyond Zero-Sum Environmentalism
market forces. Unfortunately, when states treat environmental governance
as a zero-sum game, t hey 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 env ironment.
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 CA A
and CWA and the increase in state challenges to federal authority under
the Obama Administration. e second part examines t he states’ federal-
ism arguments from both a constitutional a nd a theoretical perspective. e
chapter then explores some of the economic and political forces behind these
cases. With the polariz ation of politics generally, the oces of state attor-
neys general have grown increasingly partisan. Republican a nd Democratic
attorneys general now form coalitions and pursue national polic y 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 t hat 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 qua lity standards for certain
3. 558 U.S. 310 (2010).

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