Abstract

http://ssrn.com/abstract=1016767
 
 

Citations (2)



 


 



Adaptive Federalism: The Case Against Reallocating Environmental Regulatory Authority


David E. Adelman


University of Texas School of Law; University of Texas - School of Law, The Center for Global Energy, International Arbitration, and Environmental Law

Kirsten H. Engel


University of Arizona - James E. Rogers College of Law


Minnesota Law Review, 2007
Arizona Legal Studies Discussion Paper No. 07-23

Abstract:     
A hallmark of environmental federalism is that neither the states nor the federal government limits themselves to what many legal scholars have deemed to be their appropriate domains. The federal government regulates local issues, such as remediation of contaminated industrial sites, while states and local governments develop policies on environmental issues of national or even international scale, such as global climate change. The current system of environmental federalism is thus a dynamic one of overlapping federal and state jurisdiction. It is increasingly threatened, however, by federal legislation and Supreme Court rulings that favor preemptive federal control. This Article advocates an adaptive model of environmental federalism that reinforces the existing dynamic system. Our approach rejects the dominant economic theory, which holds that regulatory authority should reside at the level of government that roughly "matches" the geographic scope of the subject environmental problem. We show that its one-sided focus on static optimization is ill-suited to the complexity and variability of environmental problems. Drawing on an emerging trend in legal scholarship that calls for a dynamic conception of federalism, our adaptive model recognizes the importance of sustaining both a diversity of regulatory options and the processes for winnowing and refining them. An adaptive framework would exploit local variability, as well as the unpredictability of nature itself, to make the federal system both highly adaptable and resilient to environmental change. We propose several doctrinal and legislative principles to enhance the dynamic attributes of environmental federalism. These prescriptions include adopting a judicial presumption, and a corresponding principle of legislative drafting, against federal preemption, as well as a more specific presumption against federal regulations that preclude states from establishing more stringent standards. We further advocate tempering uniform federal standards by allowing a small number of competing state standards.

Number of Pages in PDF File: 57

Keywords: environmental federalism, federalism, adaptive federalism, dynamic federalism, cooperative federalism, environmental law, preemption, matching principle, Revesz, Stewart, Esty, Farber, Schapiro, scale, climate change, complexity theory

JEL Classification: K32

Accepted Paper Series


Download This Paper

Date posted: September 26, 2007  

Suggested Citation

Adelman, David E. and Engel, Kirsten H., Adaptive Federalism: The Case Against Reallocating Environmental Regulatory Authority. Minnesota Law Review, 2007; Arizona Legal Studies Discussion Paper No. 07-23. Available at SSRN: http://ssrn.com/abstract=1016767

Contact Information

David E. Adelman (Contact Author)
University of Texas School of Law ( email )
727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-0877 (Phone)

University of Texas - School of Law, The Center for Global Energy, International Arbitration, and Environmental Law ( email )
Austin, TX
United States

Kirsten H. Engel
University of Arizona - James E. Rogers College of Law ( email )
P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-621-5444 (Phone)

Feedback to SSRN


Paper statistics
Abstract Views: 1,332
Downloads: 242
Download Rank: 71,262
Citations:  2

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.312 seconds