Harnessing the Benefits of Dynamic Federalism in Environmental Law

Abstract

Despite scholarly commentary urging otherwise, the federal government continues to address environmental issues of purely local effect while the states continue to address issues of national and even international effect. In this essay, Kirsten Engel examines the basis of the predominant scholarly preference for static allocation of authority between the states and the federal government and the countervailing benefits of overlapping jurisdiction. She argues that a static allocation of authority deprives citizens of the benefits of overlapping jurisdiction, such as a built-in check upon interest group capture, greater opportunities for regulatory innovation and refinement, and relief, for the courts, from the futile and confusing task of jurisdictional line-drawing.

Keywords: environmental law, federalism, state government, federal government, overlapping jurisdiction, dynamic federalism, economic efficiency, allocation of authority, preemption, innovation