Competitive Federalism: Environmental Governance as a Zero-Sum Game

• Date: 01 September 2019

49 ELR 10858 ENVIRONMENTAL LAW REPORTER 9-2019

The political climate that facilitated the passage of

major pollution control statutes such as the Clean

Air Act (CA A)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,

many feared that states would engage in a “race to the

bottom,” setting lax environmental regulations in a n eort

to attract industry and economic growth. Policymakers

also recogn ized that environmental pollution increasingly

presented problems of scale; pollutants emitted into the air

and discharged into water bodies d id not always remain

within the political borders of a state. A federal role was

perceived as a necessar y means to ensure the ecient

regulation of interstate pollution.

Today, political support for new environmental regu-

lations at the federal level is less uniform, particularly

given the resistance to federal regulation by a sizeable

number of states during the Barack Obama Administra-

tion. Along with industry, states routinely led lawsuits

challenging new environmental reg ulations as abuses of

federal power. Instead of thinking seriously about shared

governance, the political default in ma ny red states was

to litigate with the hope of invalidating the federa l rule.

is turns environmental governance into a zero-sum

jurisdictional game; if t he federal rule is invalidated, the

state wins, and if the ru le stands, the state loses.

Of course, environmental regulation is not a zero-sum

game; the optimal combination of local, state, a nd fed-

eral regulation depends on a number of factors, including

geographic scale, exist ing regulatory structures, and vari-

ous market forces. Unfortunately, when states treat envi-

ronmental governance as a zero-sum ga me, they preclude

the consideration of win-win shared-governance scenar-

ios. Along the way, time, eort, and money are wasted in

protracted legal battles that delay important protections

for human health and the environment.

is Article investigates the recent turn to competitive

federalism in the context of anti-pollution regulation. It

begins with a brief overview of concurrent jurisdict ion

contemplated by antipollution statutes such as the CAA

and CWA and the increase in state challenges to federal

authority under the Obama Administ ration. e sec-

ond part examines the states’ federalism arguments from

both a constitutional and a theoretica l perspective. I then

explore some of the economic and political forces behind

these cases. With the polarization of politics generally, the

oces of state attorneys general have grown increasingly

1. 42 U.S.C. §§7401-7671q.

2. 33 U.S.C. §§1251-1387.

Competitive

Federalism:

Environmental

Governance as a

Zero-Sum Game

by Shannon Roesler

Shannon Roesler is the Robert S. Kerr Jr. Professor

of Natural Resources and Environmental Law at

the Oklahoma City University School of Law.

Summary

When the major pollution control laws were passed in

the 1970s, there was growing consensus that federal

environmental regulations were essential to the pro-

tection of human health and the environment. At that

time, many feared that states would engage in a “race

to the bottom,” setting lax environmental regulations

to attract industry and economic growth. Political

support for new federal environmental regulation has

since changed, with many states challenging such reg-

ulations as abuses of federal power. is has turned

environmental governance into a zero-sum juris-

dictional game; if the federal rule is invalidated, the

state wins, and if the rule stands, the state loses. is

Article, adapted from Chapter 9 of Beyond Zero-Sum

Environmentalism (ELI Press 2019), investigates this

recent turn to competitive federalism in the context of

anti-pollution regulation. It concludes that despite the

zero-sum rhetoric that pits environmental protection

against economic growth, there is growing evidence

that people do not view environmental protection and

economic well-being in zero-sum terms.

Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.