Multilevel Environmental Governance in the United States

Environmental Scientist, November 2016

FSU College of Law, Public Law Research Paper No. 842

5 Pages Posted: 18 May 2017

See all articles by Erin Ryan

Erin Ryan

Florida State University, College of Law

Date Written: November 2016

Abstract

This short essay, solicited by the ENVIRONMENTAL SCIENTIST journal, distills the lessons of American experimentation with environmental federalism and multilevel governance for use by other nations (drawing from Environmental Federalism’s Tug of War Within, in THE LAW AND POLICY OF ENVIRONMENTAL FEDERALISM: A COMPARATIVE ANALYSIS (Kalyani Robbins, ed., 2015).

Multilevel environmental governance disputes reflect increasing pressure on all levels of government to meet the challenges of regulation in an increasingly interconnected world. In the United States (US), debate over the responsibilities of different levels of government are framed within our system of constitutional federalism, which divides sovereign power between the central federal administration and regional states. Dilemmas about devolution have been erupting in all regulatory contexts, but environmental governance remains uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples — “who gets to decide?” — in contexts where state and federal claims to power are simultaneously at their strongest.

Environmental problems tend to match the need to regulate the harmful use of specific lands (among the most sacred of local prerogatives) with the need to regulate border-crossing harms caused by these uses (among the strongest of national prerogatives). As a result, it is often impossible to solve the problem without engaging authority on both ends of the spectrum — and disputes erupt when local and national ideas on how best to proceed diverge. Ongoing jurisdictional controversies in energy policy, pollution law, and natural resource management reveal environmental law as the canary in federalism’s coal mine, showcasing the underlying reasons for jurisdictional conflict in all areas of law.

Wrestling with these incendiary tensions at the intersection of local land use and spill-over harm, environmental federalism helpfully exposes the fault lines underlying the American federal system to analysis — but also the available tools for coping with them. American environmental law has developed structural means of managing these tensions which may be instructive for other devolution conflicts or claims for decentralised environmental decision-making in other jurisdictions. This article suggests a few potential lessons from the American experience.

Suggested Citation

Ryan, Erin, Multilevel Environmental Governance in the United States (November 2016). Environmental Scientist, November 2016, FSU College of Law, Public Law Research Paper No. 842, Available at SSRN: https://ssrn.com/abstract=2970579

Erin Ryan (Contact Author)

Florida State University, College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States

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