The Law and Policy of Environmental Federalism
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The Law and Policy of Environmental Federalism

A Comparative Analysis

Edited by Kalyani Robbins

This book provides a comparative analysis of the various approaches to environmental federalism and a consideration of what each system might learn from the others. Each chapter focuses on a different regime, and together they offer a broad overview of the field as well as original theory and policy analysis that is sure to meaningfully contribute to our understanding of environmental federalism as well as our policy-making future.
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Chapter 10: Reverse preemption in federal water law

Ann E. Carlson


Common accounts of federalism and preemption do not envision states as supreme. According to the conventional view, states may share regulatory space with the federal government, carry out federal programs, or operate independently and even exclusively. But in two provisions in federal law, states play a role of supremacy: they are given extraordinary power – what I call ‘reverse preemption’ – to veto federal agency decisions that conflict with state policy. One provision allows states to override federal actions that conflict with state coastal management; another gives states the power to reverse or condition federal licensing decisions that impede state water quality goals. This chapter examines these reverse preemption provisions and explores their ramifications. It suggests that reverse preemption provisions enhance the power of states with strong environmental preferences through an unexpected form of federalism. The chapter describes the ways in which the provisions allow Congress to check executive branch decision-making that could undermine environmental protection, particularly when Congress and the Presidency are held by different political parties. Thus, reverse preemption provisions play an important function in bolstering separation of powers values. Finally, the chapter includes preliminary suggestions for the use of reverse preemption provisions in other policy areas.

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