Negotiating Environmental Federalism: Dynamic Federalism as a Strategy for Good Governance
23 Pages Posted: 23 Apr 2018
Date Written: October 2017
This symposium piece distills a few important points from my previous research about the need for negotiated governance and the options for accomplishing it—including Negotiating Federalism (https://ssrn.com/abstract=1583132), which identified the pervasive use of intergovernmental bargaining as a tool for dealing with jurisdictional uncertainty; FEDERALISM AND THE TUG OF WAR WITHIN (https://ssrn.com/abstract=1991612), which folded the concept of negotiated governance into a general theory of Balanced Federalism, exploring how contrasting federalism values are managed by various means of consultation, competition, and collaboration; and Environmental Federalism’s Tug of War Within, (https://ssrn.com/abstract=2532687), the closing chapter to an environmental federalism book, in which I applied Balanced Federalism theory to bridge the collection’s analyses of different areas of environmental law.
Drawing from this body of work, this conversational essay draws out two separate themes, digesting the implications of negotiated federalism for: (1) administrative environmental governance; and (2) American federalism in general, using environmental law as a substantive laboratory to demonstrate the challenges in American federalism that lead us toward negotiated governance in all fields. Part I thus begins by exploring why environmental law seems always at the epicenter of federalism controversy—why it is, as I have previously called it, the “canary in federalism’s coal mine.” In Part I, I will ask why environmental controversies become so intense that they require negotiated resolution, and I will suggest that it has to do with both the nature of environmental problems specifically and the nature of American federalism itself.
Part II considers how the nature of American federalism itself is also responsible for the dilemmas that lead us toward negotiated resolutions. Federalism, after all, is a strategy for good governance—a means of accomplishing the underlying good governance values that the Constitution envisions, and for coping with the inevitable values conflicts identified in Balanced Federalism. Part II reveals how unresolved constitutional issues foment jurisdictional uncertainty, encouraging the use of negotiation to mediate multiscalar governance dilemmas. It considers how state-federal bargaining is not only a rational means of coping with uncertainty, but deployed effectively, a wise means that confers benefit up and down the jurisdictional scale.
Part III brings this conversation about federalism’s underlying values clash back to environmental law, and the innovative technologies of multiscalar governance that have evolved there. It observes how environmental law has responded to federalism’s challenge at the structural level, experimenting with various means of asymmetrically allocating regulatory authority to encourage different valences of consultation, negotiation, collaboration, and competition. It shows how different approaches to cooperative federalism can be adapted to procure distinct mixtures of local and national input. I conclude with reflections on the critical insight with which the phenomenon of negotiated federalism should leave us: despite centuries of rhetoric to the contrary, federalism need not be, and indeed never has been, a zero-sum game.
Keywords: federalism, negotiated federalism, multiscalar governance, intergovernmental bargaining, environmental law, administrative law, executive branch, jurisdictional overlap, Balanced Federalism, cooperative federalism, jurisdictional uncertainty, coordinated capacity, conditional preemption, general per
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