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.
William W Buzbee
Although sometimes maligned as unduly rigid and inefficient, United States environmental laws in reality use a variety of regulatory design strategies and policy tools that are conducive to regulatory tailoring, dynamism, and improvement. These laws often call for several steps of refined regulatory judgments, and also to varying degrees embrace in their implementation use of markets or market-mimicking mechanisms. Most US environmental laws are also drafted with an array of nuanced strategies designed to lessen predictable forms of regulatory error and failure. A rich array of participatory and enforcement rights make US environmental law unlikely to be unimplemented or violated with impunity. This chapter discusses the reason for this regulatory tool diversity, highlights several different regulatory steps and structures in most laws, and the diverse strategies and tools utilized to address environmental harms and risks.
William W Buzbee
Abstract This chapter introduces the law and legal structures in the United States pertaining to the dual challenge of regulating greenhouse gas emissions from the transportation sector, focusing primarily on motor vehicles. Effective regulation must address both tailpipe emissions and the aggregate harms of motor vehicle use by millions of people and businesses. In the United States, transportation regulation has been a wedge catalyzing broader progress to mitigate climate change. State action and citizen litigation led to the critically important Supreme Court decision in Massachusetts v EPA, which prompted executive action and then regulatory agreement to reduce motor vehicle tailpipe emissions. That regulation also triggered regulation of other major categories of GHG emitters. The chapter then discusses the thornier challenge of reducing high vehicles miles travelled. It closes by looking at areas of potential reform and needed future scholarship.