From Cooperative to Inoperative Federalism: The Perverse Mutation of Environmental Law and Policy

Abstract

Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal and state programs will yield more effective results than either level of government would have been capable of achieving by itself Although this model of environmental statutory cooperative federalism is nominally still in place today, it operates today in a manner that is distinctly different from the way Congress initially envisioned. Federal power to prevent environmental harm is in some respects more limited today than it has been for most of the modern environmental era. This contraction of federal power has resulted from a combination of judicial, legislative, and administrative activity. Many state and local governments have reacted by pursuing innovative initiatives to fill the resulting gaps in federal environmental law. Instead of welcoming this development, however, the federal government, acting again through all three branches, has restricted state and local authority to continue with these endeavors. Recent congressional efforts to delegate to the states the authority to grant exemptions from federal environmental requirements provide yet another component of the inversion of the manner in which federalism operates in the context of environmental law. This article discusses the transformation of environmental law from a set of rules and doctrines that used to enable federal and state governments to cooperate in the quest for environmental protection to a revised system that, at least in some respects, restrains both levels of government from the vigorous pursuit of that goal. The upshot of these developments is a federal system that hinders the capacity of all levels of government to pursue environmental protection initiatives, thereby constraining the force of environmental law by pushing it toward the lowest common denominator.

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