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Unformatted text preview: Environmental Politics Professor Kelemen
Lecture 7: Environmental Federalism Outline What is Federalism and why have it Dilemmas of Federalism Environmental Federalism A brief history of US environmental federalism What is Federalism? An institutional arrangement in which: – public authority is divided between a federal government and two or more "state" governments – Each level of government has the ultimate authority in some policy areas – A court adjudicates disputes concerning the division of authority Why have federalism? Country is too big and diverse to govern centrally Country has distinctive regions that want some autonomy (ethnic, religious, linguistic) Federalism divides power and helps prevent tyranny Key = Federalism allows for cooperation in some areas, while preserving autonomy in others 2 Dilemmas in maintaining the Federal Balance Dilemma 1: State Shirking Dilemma 2: Federal Overreach
– Feds usurp state powers – Feds pass ‘unfunded’ mandates – States disobey federal law, fail to pay taxes, impose costs/problems on neighbouring states Other problems of federalism Blame shifting and credit claiming Accountability problems Coordination / administration problems Environmental Federalism Constitution, 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Why should federal government have a role in environmental policy? – Negative Externalities: Cross border pollution – Racetothebottom: States will not act for fear of undermining competitive position – Interstate Commerce: Prevent ‘nontariff’ barriers to trade between states Examples Negative Externalities: – 8090% of toxics in Lake superior come from air pollution from distant states Racetothebottom: – California Green house gas initiative? Interstate Commerce: – Minnesota v. Clover Leaf Creamery Co. Minnesota v. Clover Leaf Creamery For the stated purposes of promoting resource conservation, easing solid waste disposal problems, and conserving energy, the Minnesota Legislature enacted a statute banning the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permitting such sale in other nonreturnable, nonrefillable containers, such as paperboard cartons. Respondents filed suit in Minnesota District Court, seeking to enjoin enforcement of the statute on constitutional grounds. The District Court held that the statute violated, inter alia, the Equal Protection Clause of the Fourteenth Amendment and the Commerce Clause. Finding that "the evidence conclusively demonstrate[d] that the discrimination against plastic nonrefillables [was] not rationally related to the Act's objectives," the Minnesota Supreme Court affirmed on the equal protection ground without reaching the Commerce Clause issue. Minnesota v. Clover Leaf Creamery Even if a statute regulates "evenhandedly," and imposes only "incidental" burdens on interstate commerce, the courts must nevertheless strike it down if "the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Minnesota's statute does not effect "simple protectionism," but "regulates even handedly" by prohibiting all milk retailers from selling their products in plastic, nonreturnable milk containers, without regard to whether the milk, the containers, or the sellers are from outside the State. This statute is therefore unlike statutes discriminating against interstate commerce, which we have consistently struck down. Environmental Federalism: The Big Questions How should authority be divided between feds and states?
– – – – How much flexibility/discretion should states have? Arguments: ‘level playing field’ vs. flexibility & local control Racetothebottom is bad vs. it is good Or is there actually a ‘racetothetop’ (example of California and auto emissions) US Environmental Federalism: Decade by Decade Pre1970s: Few federal mandates, but lots of ‘pork barrel’ funding for states 1970s: Many new statutory mandates, backed by increased funding for states 1980s: Existing fed statutes remain & new ones added, but fed funding cut 1990s: States fight back.
– National Unfunded Mandates Day – National Unfunded Mandate Reform Act
– National Environmental Performance Partnership System (NEPPS) 2000s: States emerge as ‘new heroes’ of environmental protection The Division of Authority Who sets standards?: Mostly Federal Who implements?: Mostly State
– Federal ‘floors’ rather than ‘ceilings’ – Partial preemption v. total preemption – States issue 90% of enviro permits Who enforces?: Mostly state, backed by Feds Who pays? States pay 75% – States take 75% of enforcement actions Division of Authority Under Various statutes Clean Air Act (1970, 1977, 1990) – State Implementation Plans (SIP) – Mandatory Notice of Federal Enforcement Clean Water Act (1972) – National Pollutant Discharge Elimination System (NPDES) permits – EPA enforcement. No mandatory notice to states. CERCLA (Superfund) 1980 – Federal list of sites – EPA enforcement CAFE standards (auto fuel economy) – Feds set and enforce standards The States Strike Back 2005: Mercury emissions suit: The suit, filed Wednesday by New Jersey on behalf of the coalition, challenges an EPA rule that removes power plants from the list of pollution sources subject to stringent pollution controls under the federal Clean Air Act. They later challenge EPA’s proposed capandtrade system for regulating mercury emissions, which will allow some plants to increase mercury emissions, creating hot spots of local and regional mercury deposition. 2006: Mass. Et al. v. EPA California to cut gas emissions California's Governor Arnold Schwarzenegger has signed a law which sets targets to reduce the state's greenhouse gas emissions. Becoming the first US state to impose such limits, California is aiming to reduce its emissions by 25% by 2020. Details on how the state will achieve the cut have not been worked out, but it seems inevitable that businesses will face tougher emissions limits. While good news for the environment, critics argue that firms may relocate. In addition to companies simply moving outside California, opponents of the Global Warming Solutions Act of 2006 say California's move will fail to make a meaningful reduction to US greenhouse gas emissions unless other states follow suit. … Schwarzenegger says: "Also our federal government will follow us. Trust me." … BBC News, 27 September 2006 Leaders and Laggards (see table 2.1, p.38 in Vig and Kraft) Leaders: Oregon, New Jersey, Minnesota…. California Laggards: New Mexico, Wyoming, Alabama Huge variations in environmental performance & commitment ...
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- Spring '09