The introduction begins by laying a foundation for the book, introducing the concept of federalism broadly, as well as environmental federalism specifically, in the interest of making the book more accessible to students and non-academic readers. This is followed by a brief overview of each chapter and explanation of how the editor has endeavored to organize them for this book.
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Robert L. Glicksman and Jessica A. Wentz
This chapter describes how the Clean Air Act (CAA) lays the foundation for US cooperative environmental federalism programs. The CAA was the first federal pollution law to significantly expand the federal government’s role beyond providing information and financial assistance to the states and regulating interstate pollution. At the same time, the Act preserved an important policy-making role for states choosing to participate. Despite its path-breaking federalism structure, the CAA’s approach is sometimes misunderstood, as reflected in stunning mischaracterizations of that structure in recent judicial decisions, including an important Supreme Court case. To set the record straight, the chapter explores why Congress embarked on this cooperative federalism venture, emphasizing the manner in which the CAA responds to collective action problems. It also evaluates the CAA’s implementation, identifying CAA cooperative federalism success stories that include the leadership provided by states such as California in regulating pollution from motor vehicles and, potentially, state and regional efforts to restrict greenhouse gas emissions that contribute to climate change. Its failures include the persistent inability of some states to achieve the national ambient air quality standards and, ironically given its early provenance, the program to control interstate pollution. The chapter concludes by assessing whether the CAA’s cooperative federalism model is a good fit for mitigating greenhouse gas emissions that contribute to climate disruption and suggesting alternative mechanisms for addressing intractable air pollution problems.
The UN Convention on the Law of the Sea (LOSC), which was adopted in 1982, devotes a significant proportion of its provisions to the protection of the marine environment. This chapter seeks to assess the value of those provisions at the present time, more than 30 years after the adoption of the LOSC. The chapter does this in two distinct ways. First, it asks how the LOSC compares with an ideal general treaty for the protection of the marine environment that might be drawn up today. Second, the chapter tries to determine the impact and influence that the marine environmental provisions of the LOSC have had on the practice of States and international organizations. To these ends the chapter looks in turn at each of those matters with which, it is suggested, an ideal contemporary general marine environmental treaty would deal. Those matters are: principles for marine environmental policy-making and legislation; the conservation of species; the protection of habitats; the prevention of marine pollution; and climate change. The chapter considers how, if at all, the LOSC addresses each of those issues; and insofar as the LOSC does address them, the chapter comments on the adequacy and practical impact of the LOSC provisions in question. The chapter concludes that the LOSC has serious deficiencies, especially when compared with an ideal contemporary marine environmental treaty, most notably weaknesses in its substantive norms and its failure to provide adequately for its normative development. The most significant contribution of the LOSC has been to establish a clear jurisdictional framework for the adoption and enforcement of national measures to protect the marine environment.