Contextual Environmental Federalism

Abstract

Environmental policy analysts sometimes make broad claims about federal and state environmental roles based on isolated, anecdotal examples. This essay suggests that policy analysts should seek to distinguish events that are the result of particular historical opportunities and context, from propensities and incentives that are more stable and predictable under current forms of environmental federalism. Greater attention should be paid to the array of regulatory actors and regulatory modalities. Activity by one actor in one modality does not necessarily reveal much about "the state's" proclivities. This essay suggests that recent state enforcement activism proves little about inherent state environmentalism, but instead reflects political opportunities created by a shift on the federal level towards a more anti-environmental position. Rather than seeing recent state actions as providing support for the elimination or reduction of the federal environmental role, this essay argues that these recent state actions reveal once again the benefits of regulatory overlap, cooperative federalism structures, and redundant enforcement mechanisms. These aspects of the American system of environmental federalism reduce the risk of regulatory underkill that can result from failures to address environmental ills, as well as failures adequately.

Keywords: Regulation, Environmental Law, Federalism