Localizing Environmental Federalism

Abstract

Local environmental action has gained attention and importance in the face of inaction by the federal government and many states. By taking action when other levels of government are not, these local governments are fulfilling an important federalism function. Environmental federalism theory has long highlighted the potential for local governments to play this gap-filling function, and to fulfill other federalism values. To date, however, environmental federalism theory has not examined closely the legal basis for local governmental action, and the vulnerabilities that surround that local authority. In many states, local authority is easily, and often, preempted by the state. Given the importance of local environmental activity, the looming threat of removal of local ability to act is an important, and as-yet relatively unexamined, aspect of environmental federalism dynamics.

This Article proposes a new framework—localized environmental federalism—for better acknowledging the role that local governments play in environmental federalism and environmental governance, and for thinking through the implications of the loss of local authority over the environment in the context of environmental federalism. Notably, this is a theory of localized, not localist, environmental federalism; the framework has no built-in preference for local authority over other actors. Instead, it endeavors to make clear the realities of local environmental governance and how that reality affects environmental federalism conversations.

Localized environmental federalism takes as its starting point three central tenets: 1) local governments play a distinct role in environmental federalism; 2) environmental federalism values may be impacted by the vulnerability of local authority; and 3) because local authority varies by state in highly particularized ways, conversations about local environmental governance must become more particularized too. Using that framework for thinking through the role of local governments in environmental federalism, it becomes possible to have nuanced conversations about how, why, and when local actors may be well-suited for environmental action. In a time of pressing environmental concerns, that knowledge has never been more crucial.

Keywords: environmental federalism, local government, climate change, sustainability, state, preemption, home rule, environmental law