Democratic Environmental Experimentalism.

• Author: Engel, Kirsten H.

1. INTRODUCTION II. DYNAMIC, ADAPTIVE ENVIRONMENTAL FEDERALISM A. The Legal Framework: Unleashing Regulation at Multiple Scales B. Rethinking Theoretical Underpinnings of Static Regulatory Frameworks C. Theoretical Underpinnings of Dynamic Federalism: Ecological Adaptation D. Examples of Overlapping Jurisdiction III. DYNAMIC, ADAPTIVE FEDERALISM AND DEMOCRATIC EXPERIMENTALISM IV. ADAPTATION TO CLIMATE CHANGE POLICY V. CONCLUSION I. INTRODUCTION

   Democratic experimentalism is a theory of governance intended to encourage continuous improvement in the problem-solving capabilities of local governing units in a federal or decentralized system of government. (1) According to the vision of two founding members, democratic experimentalism locates policymaking authority at the local level. A central regulatory authority would exist, but significantly, the role of that body would be primarily that of supporting local government, feeding the local government information regarding the performance of peer local governments and challenging it to do better. The composition of the central governing body would also differ from that of your typical federal environmental agency given that it would be populated by private and non-profit sector representatives. ()

   The united States provides an increasing number of examples of public-private, multilevel institutional collaborations that reflect aspects of this idealized vision. (3) Often these collaborations are found with respect to ecosystems facing a crisis due to development pressures or external changes related to climate change. A few examples include the Comprehensive Everglades Restoration Plan, the CALFED Bay-Delta Program, and the Piscataqua Region Estuaries Partnership. (4) Like the ideal of democratic experimentalism, these governance arrangements are "networked" and "multilevel" so as to enable decision makers to collaborate in search of solutions and to shift and change in response to changing conditions. Other rules and procedures incorporated into the corpus of U.S. environmental regulation trigger the generation of information and self-regulation. (5)

   Nevertheless, it is fair to say that collaborative, multilevel governance regimes, however desirable to address the "wicked" problems facing particular ecosystems, are the exception rather than the rule. Environmental regulation is otherwise characterized by autonomous regulation by states, local governments and the federal government. Granted, the levels of government do interact and are even combined in larger schemes such as cooperative federalism found in major federal environmental laws. Nevertheless, in sharp contrast to the vision of democratic experimentalism, U.S. environmental law presupposes a strong federal role characterized by binding regulatory authority and the power to preempt state and local law. This overarching role of the federal government, made possible through broad interpretations of the Commerce Clause, arises out of concerns for curbing interstate pollution spillovers and preventing a welfare-reducing race to the bottom in state environmental regulation. (6)

   Scholars of democratic experimentalism and new governance rightly criticize the static allocations of authority found in this traditional federalism framework for its rigidity and for its potential to stifle innovation at the state and local levels. Nevertheless, this critique underappreciates the level of experimentation harbored by this framework, as witnessed in the dynamic interaction between the various levels of government. This dynamic interplay, which is very much on display with respect to climate change regulation, is far from being devoid of new policy innovation. It also exhibits something that, in the long run, may be just as important--the adoption, at local and regional levels, of policy innovations developed at other, often national or international levels. Hence not only do we see policy innovation arising out of traditional American federalism, but also "scale innovation."

   This backdrop is important when exploring the best governance models for relatively newly understood environmental issues, such as adaptation to climate change. Where does adaptation fit? Does it best pair with the prevailing model of horizontal and vertical competitive federalism, or is it best addressed as a problem ripe for the multilevel governance solutions offered by collaborative models? Any attempt to answer this question must match up the problems presented by adaption to the tools and processes offered by more traditional environmental federalism and that offered by collaborative governance regimes.

   I argue that, as understood so far, adaptation calls for a hybrid between traditional federalism models and democratic experimentalism or collaborative governance. Commentators uniformly predict that climate change will bring with it dynamic, complex and potentially abrupt, ecosystemic change at varying scales. Thus, for some, regulations in the service of adaptation should seek to reduce the vulnerability of ecosystems to abrupt and uncertain change and reinforce the resiliency of such systems. This process would seem ideally suited to democratic experimentalism--a problem in need of a regulatory system that is constantly monitoring its effects and updating its requirements. But for others, adaptation will necessitate national (and possibly international) infrastructure and regulations, which, together with needed minimum standards applicable to even intrastate issues, will call for federal, state and local regulation similar to traditional federalism. I conclude that a model for a hybrid of the two--experimentalism and federalism--might be found in the cooperative federalism structure of EPA's recent Clean Power Plan. Here, states are held accountable by the federal government to regulatory goals of their own making. Thus the Clean Power Plan incorporates flexibility of experimentalism but also the minimum standards and backstop of federal regulation.

2. DYNAMIC, ADAPTIVE ENVIRONMENTAL FEDERALISM

   U.S. environmental regulation is frequently portrayed as a rigidly hierarchical regime of dictates from the federal government that purport to solve complex environmental problems in one fell swoop. (7) The reality today, however, is that environmental regulation is a vast network of laws and regulations at all levels of government. Furthermore, there are no particular boundaries between levels of government concerning who is regulating what. Neither the federal government nor the state governments are content to address only the issues that would seem to be in their unique jurisdiction. Thus congress has authorized the EpA to regulate groundwater contamination, (8) leaking underground storage tanks (9) and municipal solid waste landfills (10)--all activities with fairly local impacts. On the other hand, the states have reached, literally, for the stars, regulating local sources of greenhouse gases in an effort to mitigate global climate change. (11) This section will discuss the legal framework that makes such overlapping regulation possible, the dynamic interaction it fosters, and the benefits, costs and opportunities provided by such overlapping jurisdiction.

   1. The Legal Framework: Unleashing Regulation at Multiple Scales

      By virtue of their general welfare authority, states may regulate broadly in response to political mandates. There are limits, of course, namely where a state regulates with respect to an activity expressly or impliedly preempted by congressional statute or, in the case of the dormant Commerce Clause, by a quasi-constitutional doctrine protecting the national market. (12) Otherwise, so long as a state can establish a rational basis for its concern that an activity will adversely affect its citizens or its territory, it is subject to lawful regulation. (13)

      The expansion of federal power under the Commerce Clause during the New Deal (14) ushered in the present era of overlapping federal-state jurisdiction. (15) This modern era is in contrast to the pre-New Deal era when overlap between state and federal authority was rare. (16) Federal environmental regulation has been a particular beneficiary of the modern expansive interpretations of the Commerce Clause. Forgiving interpretations of the Commerce Clause enabled Congress to develop comprehensive environmental programs that protected even the most localized aspects of larger ecosystems. More recent Supreme Court decisions placing limits on federal authority threaten the scope of Congress's regulatory authority over the environment but have not undermined major federal environmental programs. (17)

   2. Rethinking Theoretical Underpinnings of Static Regulatory Frameworks

      The key to a dynamic federal system is the elimination of barriers to overlapping environmental regulation rooted in theoretical models. While numerous models might support a static framework--protection of fundamental human rights, or environmental ethics--efficiency considerations have held a dominant position in debates over the proper allocation of regulatory authority in federal jurisdictions.

      One particular efficiency model, the "matching principle," has been highly influential. According to the "matching principle," the choice of regulatory jurisdiction is dictated by the perceived geographic scope of the environmental problem at issue. Hence, under this principle, localized environmental problems are suitable only for local government regulation, whereas, for example, problems of international scope are suitable for agreement by nation states.

      The theoretical basis of the matching principle is neoclassical economics and specifically, models of perfect competition. (18) Specifically, where externalities are fully internalized, the environmental standards of each jurisdiction will perfectly reflect the preferences of their residents in terms of any trade-off between environmental quality and economic...