Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 11: ‘Creatures of the State’: Regulatory Federalism, Local Immunities, and EU Waste Regulation in Comparative Perspective
Fernanda G. Nicola The European Union (EU) has committed itself to strengthening local power in a variety of ways. Since the 1980s, Brussels has aimed to increase the legitimacy of EU law and policy by enhancing the number of subnational actors and participants in its decisionmaking processes. In reaching out to individuals, associations and especially to local actors, the EU could potentially undermine the power of its Member States. However, EU law continues to privilege the relation between Brussels and its Member States rather than its developing relationship with subnational actors. Thus, when aiming to increase the power of local governments, EU law often encounters a problem: such empowerment either does not take place, or it backfires in ways often disruptive of the EU’s supranational aims. This situation resonates with what US local government law scholars have called the ‘creature of the state’ problem. In the name of decentralization, federal courts allow states to structure local power in any way they see fit; the federal courts cannot mandate particular local power structures in furtherance of federal goals without violating the constitutional commitment to federalism. Likewise, when EU law regulates local matters such as waste management, it cannot create new legal powers for subnational actors. Rather, decentralization through EU law relies on the existing national-local structure, which differs in each Member State and creates two different types of problems. A first problem is present in both the EU and the US and concerns the challenge of regulatory federalism, that is, the...
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