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Robert Fowler

The Commonwealth (federal) government in Australia has a broad capacity to legislate on environmental matters as a result of an expansive interpretation by the High Court of Australia of the heads of power contained in section 51 of the Australian Constitution. However, in practice, the Commonwealth has pursued a highly cooperative form of environmental federalism that is based on political arrangements reached with the states which substantially limit its role and avoid duplication, or preemption, of state environmental regulation. A new phase of environmental federalism emerged following the election of the Abbott Coalition government in late 2013, with the recognition by the Commonwealth of state ‘sovereignty’ in relation to various matters, including the environment, and a consequential strategy to reduce significantly its role in environmental management. It is unclear at present how far this strategy will impact on the previously well-established cooperative approach to environmental federalism, but it constitutes a step in the opposite direction from the strong leadership on environmental matters that opinion polls indicate is widely expected of the Commonwealth by the Australian public.

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Alexandra B. Klass and Emma Fazio

This chapter considers federalism concerns raised by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in the context of common law claims for relief following hazardous substance contamination. Congress enacted CERCLA in 1980 to provide a vehicle for the federal government, state and local governments, tribes and private parties to recover costs associated with contamination from releases of hazardous substances that occurred in the past, often decades ago, during a time when there were few requirements for the disposal of hazardous substances. But CERCLA did not provide a remedy for plaintiffs to recover other damages associated with hazardous substance contamination such as lost profits, lost rents, personal injury, diminution in value to property, or punitive damages, instead leaving those damages to be addressed by existing and developing state law. Thus, a central federalism question posed by CERCLA is how the provisions of CERCLA should impact, if at all, state statutory and common law claims to recover damages associated with past releases of hazardous substances. Like most federalism issues involving the impact of federal statutes on state law, the answer is a matter of determining the extent to which Congress intended CERCLA to preempt (that is, displace) state law. This chapter concludes that to the extent state law provides remedies for harm caused by releases of hazardous substances that go beyond the remedies provided in CERCLA, CERCLA should not bar such remedies except to the extent there is a direct conflict between state and federal law. Moreover, where CERCLA is ambiguous, courts should look to the remedial purposes of CERCLA in resolving those ambiguities. This chapter explains these conclusions by exploring (1) preemption of state statutory and common law claims for relief that provide remedies in addition to CERCLA and (2) preemption of state statutes of limitations and statutes of repose that may apply to state law claims for relief associated with hazardous substance contamination.

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William W. Buzbee

The traditional federalism literature, which focused largely on static allocations of governmental authority at the federal and state level, has expanded to include multi-level governance and shifting, overlapping and shared authority allocations. These more nuanced versions of federalism are useful frames for understanding the governance of energy development – an area that is growing within the United States due in large part to unconventional oil and gas resources and renewable energy development. This chapter describes where authority over energy development currently rests, providing examples of states that leave most control to local governments, others that preempt most local control, and still others that use ceiling or floor preemption or other types of shared authority. It also briefly explores the more minor federal and regional roles in energy governance. After describing existing authority allocations, this chapter assesses how governance might need to change regardless of the metric of ‘good governance’ that we follow. It concludes that a nascent energy federalism literature shows that shared authority over energy development is needed and suggests approaches for ensuring that all governments and stakeholders have a role in energy governance. These approaches include avoiding ‘zero-sum’ allocations of authority to any one government, leaving some backstop authority with courts, opening up decision-making processes, collecting and reporting more information about impacts so that participants in decision-making processes are better informed, and providing for more consistent bonding of energy infrastructure and payment for damages caused by this infrastructure.

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Alice Kaswan

Climate change impacts will be felt throughout the physical world with pervasive environmental, economic and social consequences at the local, state and federal level. In this chapter, I review their multiscalar nature and then elaborate the federalism values that shape governance choices, including pragmatic effectiveness, democratic legitimacy, and individual liberty and prevention of tyranny. I then argue that cooperative federalism regimes can best bridge the multiscalar nature of adaptation challenges and satisfy key federalism values. Although no one model can govern adaptation across the wide array of affected legal regimes, I identify generic types of federal requirements and federal support functions that could guide and facilitate state and local efforts. Lastly, I provide several examples of existing programs that can and do incorporate adaptation, such as coastal planning and disaster management, and identify contexts, such as land use and water policy, in which existing reliance on state and local initiative would benefit from a greater federal role.

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Kalyani Robbins

States have traditionally played a substantial role in managing wildlife, but play a very small role in implementing the Endangered Species Act, and an even smaller role with other federal wildlife statutes. The state and federal programs operate largely independently of one another, only minimally taking each other into account in making policy choices. This disconnect between the federal government and states results in both inefficiencies and potentially harmful incentives. While states and local governments are best positioned to manage local habitat, federal oversight is needed to ensure that our widely shared benefits (biodiversity) are not lost to a tragedy of the commons problem, so each has something valuable to bring to the table, but perhaps do not need to function as distinctly as they do. As climate change worsens, and wildlife migrates or needs to be assisted with relocation, on-the-ground federal involvement will likely become even more necessary. While it may be possible to develop work-arounds for federal wildlife laws, there may be conflicts with state regulation of endangered species. Cutting-edge active management techniques designed to assist species adaptation to climate change will require multi-jurisdictional collaboration among land managers. This chapter will explore the existing federalism structure, which developed somewhat unintentionally and at random. Then, taking into account the changing needs of species, especially the more climate-sensitive species, it will draw attention to aspects of the current system that are not likely to carry well into the future.

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Keith H. Hirokawa and Jonathan Rosenbloom

If there is a victim of federalism, it is undoubtedly the community. Self-governance demands that the persons affected by a governance decision have priority of control in decision-making over persons not so affected. Through the exercise of federal regulatory authority over local environmental conditions, citizens lose their ability to govern their communities. A federal top-down regulatory scheme imposes unwanted – and sometimes unwarranted – uniformity upon the diverse local prerogatives and priorities that are individually expressed among thousands of local jurisdictions. Local communities are stripped of critical opportunities to self-identify and build a community around their natural environs. This chapter subjects the federalism question to the ecological economics of ecosystem services and suggests that community is a worthwhile expression of values. By looking to the exercise of federal control over environmental issues and their potential assault on the benefits in fostering local diversity, this chapter explores whether imposed homogeneity or sameness at the federal level defeats the benefits of self-identifying communities through land use controls. Our objective is to help clarify the impact of federal regulation on local land use control and to more completely articulate how federal regulation detaches a community from its local ecosystem.

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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.

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William L. Andreen

The Clean Water Act is an excellent example of a statute that utilizes overlapping and intertwined federal and state roles. In adopting this model, Congress expressed its frustration with a prior program that had relied almost exclusively upon state agencies to adopt and implement water quality standards. In Congress’s view, that earlier approach had failed due to the reluctance of many states to adopt acceptable standards notwithstanding years of federal assistance. In its place, Congress turned to the US Environmental Protection Agency (EPA) to promulgate technology-based effluent limitations, which would be implemented through a new permit program for point source discharges of water pollutants. States, however, retained important roles, subject to federal oversight. The state water quality standard program was not discarded, but strengthened to supplement technology-based limitations in cases where the uniform approach proved inadequate to meet water quality objectives. States, moreover, have obtained approval, in most instances, to administer the permit program. They also enjoy the freedom to establish regulatory requirements that are more protective of the environment than EPA would require. This dynamic strategy has produced a tremendous amount of progress. Nevertheless, more work remains to be done, and the biggest problems lie in two areas where the Clean Water Act left control primarily within state prerogative: the management of nonpoint source pollution and the establishment of adequate and variable instream flows to meet the needs of aquatic ecosystems. Nonpoint source pollution, as a result, has become our most significant source of water quality impairment while flow alterations place second on the list for impairing the quality of our rivers and streams. This chapter explores a number of ways in which EPA’s authority could be enhanced in both areas to enable the states and EPA, working as partners, to better protect the nation’s waters.

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Kirsten H. Engel

Starting in the 1990s, states began filling the gap left by the federal government’s failure to enact climate change legislation. Policies adopted by states, such as regional greenhouse gas cap-and-trade regimes and renewable portfolio standards, have been lauded as demonstrations of the continuing ingenuity of the states as ‘laboratories of democracy’, devising new and innovative solutions to the global problem of climate change. This view is in tension with the predictions of well-respected economists that states will innovate at sub-optimal levels due to the risk-averse nature of politicians and the ability of one state to free-ride off the innovative ideas of other states. This chapter concludes that the truth lies somewhere in the middle. While state governments are the original source of only a few of the most touted climate policy initiatives, they are frequently the first to adapt a policy previously adopted only on the national level. As opposed to ‘policy innovators’, state and local governments might more accurately be described as ‘scale innovators’. Given the overarching necessity of cutting back on greenhouse gas emissions, policy adoption on multiple scales is arguably of greater social value than developing new and original policy tools.

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Erin Ryan

The intensity of federalism disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world. Yet even as federalism dilemmas continue to erupt from all corners, environmental law remains at the forefront of controversy. This chapter argues that environmental law is uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples – who gets to decide? – in contexts where state and federal claims to power are simultaneously at their strongest. Environmental problems tend to match the need to regulate the harmful use of specific lands (among the most sacred of local prerogatives) with the need to regulate border-crossing harms caused by these uses (among the strongest of national prerogatives). As a result, it is often impossible to solve the problem without engaging authority on both ends of the spectrum – and disputes erupt when local and national ideas on how best to proceed diverge. Ongoing jurisdictional controversies in energy policy, pollution law and natural resource management reveal environmental law as the canary in federalism’s coal mine, showcasing the underlying reasons for jurisdictional conflict in all areas of law. Concluding the book, this chapter explores why environmental law regularly raises such thorny questions of federalism, and how environmental law has adapted at the structural level to manage federalism conflicts. Drawing from the theoretical framework that I introduced in Federalism and the Tug of War Within (Oxford University Press, Oxford 2012), Part II of the chapter reviews the central objectives of federalism, examining the conflicting values they imply and the resulting tension that suffuses all federalism-sensitive governance. Part III evaluates why federalism conflicts are heightened in the context of environmental law. Divisiveness not only reflects the intense competition among federalism values in environmental governance, it also provides key insights into the core theoretical dilemmas of jurisdictional overlap more generally. Part IV of the chapter probes how environmental law has adapted to manage the challenges of overlap by asymmetrically allocating local, state and federal authority within various models of collaborative or coordinated governance. Part V concludes with consideration of what the larger discourse can learn from the dynamic federalism and multiscalar governance innovations emerging from within environmental governance. Through processes that engage stakeholders at all levels of jurisdictional scale, environmental federalism is lighting a path away from the old presumptions of ‘zero-sum’ federalism and toward a model of negotiated multiscalar governance emphasizing consultation, compromise and coordination.