Iterative Federalism and Climate Change

Abstract

While the federal government has remained on the sidelines, a number of states have produced interesting and innovative programs to reduce greenhouse gas emissions. This Article suggests that though states deserve credit for their climate change leadership, at least two of the most significant state initiatives - California's greenhouse gas mobile source emissions standards and the Regional Greenhouse Gas Initiative - would not have occurred but for the backdrop of federal law. Indeed these two state initiatives are the end product of what the Article terms "iterative federalism." Under iterative federalism schemes, federal law singles out a state or particular group of states for special regulatory power rather than treating all fifty states as legally homogeneous. The result has been an iterative pattern of regulatory innovation, under which the special state "super-regulator" moves to regulate, followed by the federal government, followed in turn by more regulatory innovation by the state super-regulator and so forth.

These schemes of iterative federalism not only produce regulatory innovation and significant environmental success but also shed new light on the long-standing debate about which level of government, state or federal, is the appropriate locus of regulatory power in environmental policymaking. Iterative federalism retains some of the chief benefits of devolution - policy experimentation, respect for local preferences, and the avoidance of potentially expensive and untested federal mandates. Yet iterative federalism schemes quite effectively address interstate externalities, national product market economies of scale and the race to the bottom often feared by advocates of national environmental policy-making. And through the creative deployment of federal law, iterative federalism has bolstered innovative state environmental leadership.

Keywords: climate change, greenhouse gas emissions, iterative federalism, state regulatory powers