Document Type

Article

Disciplines

International Law

Abstract

Modem environmental protection law in the United States, mostly created since 1970, has been introduced into a mature federal system in which the principal legal issues of allocation of governmental power had already been resolved. Thus, with some exceptions, most of the federalism legal issues presented by environmental law have involved application of known principles in a new factual context, rather than the working out of new basic principles. While some legal issues remain, federalism issues in U.S. environmental law are much more concerned with political issues and effective program implementation than with strictly legal determinations of the allocation of legal powers. Accomplishing effective environmental protection in a federal system, to the limited extent this has been achieved, has required policy and political adjustments to the demands of federalism politics, even though these adjustments are not commanded by law.

A federal system must mediate political tensions among its different parts in order to make policy, and this is certainly true of environmental policy. The United States is a geographically large and varied country with much cultural and political diversity. The country's diversity means that local environmental problems may indeed be different in different parts of the country, and that the preferences and values supporting environmental protection may genuinely vary within the country. Political values favoring local autonomy, as well as deep suspicion of centralized political power, form an additional part of the complex backdrop of United States' political culture upon which environmental policy must be painted. These political values and pressures play importantly on the structure and effectiveness of environmental policy.

The practical requirements of effective policy implementation also require a policy that uses both the federal and state governments. Environmental protection requires imposing regulatory controls on the behavior of a vast and diverse array of businesses, individuals, and other institutions spread through a large and diverse country. There is no realistic prospect that the federal government alone can effectively impose the needed controls.' It does not have the environmental protection personnel or other administrative resources needed to do so and there is no political prospect that it will be able to muster them, for this task, in the foreseeable future. In addition, the controls needed often impose tight restrictions on powerful business and citizen interests, restrictions the interests find uncomfortable, or worse. The federal government might well give pause before spending as much of its scarce political capital as would be needed to impose these controls by itself. Involving the states brings both more enforcement resources and more political capital to support their use. Finally, effective environmental protection requires at least some degree of sensitivity to local environmental, political, and economic conditions that will be difficult for a unitary, centralized federal program.

The result of these conflicting tensions is a system of environmental protection law that is typically a hybrid combination of federal and state governmental programs and agencies. Federal standards and state enforcement are the predominant parts of the mix, although many exceptions and variations also appear. Federalism political values and restraints, as well as the practical demands of administrative enforcement, are real limitations in the design and implementation of environmental protection policy. This paper will describe this system in three sections following this introduction. The next section will survey the basic legal principles of allocation of power in the United States federal system that are relevant to environmental protection. It will then trace the dramatic shift from state law to federal law that took place when modern environmental law was enacted, a shift that has resulted in our present federal-state hybrid mix. The second section will then discuss the particular mix of federal and state law in pollution control, while the third will examine examples of parallel state and federal regulatory systems, including waste cleanup law and other areas.

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