Competitive Federalism: Environmental Governance as a Zero-Sum Game

AuthorShannon Roesler
Pages193-218
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 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).

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT