When is two a crowd? The impact of federal action on state environmental regulation

Harvard Environmental Law Review

Volumn 31, Issue 1, 2007, Pages 67-114

  Adler, Jonathan H ^a  

^a Maastricht University   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL PROTECTION; FEDERAL SYSTEM; STATE ROLE; STRATEGIC APPROACH;

EID: 33947494194     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (324)

1. See Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 Md. L. Rev. 1141, 1147 (1995).
2. See generally Jonathan H. Adler, The Fable of Federal Environmental Regulation: Reconsidering the Federal Role in Environmental Protection, 55 Case W. Res. L. Rev. 93 (2004).
3. These statutes include the Clean Air Act, Pub. L. No. 91-604, 84 Stat. 1676 (1970),
4. the Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 898 (later amended as the Clean Water Act and codified at 33 U.S.C. §§ 1251-1387 (2000)),
5. the Federal Insecticide, Fungicide, and Rodenticide Act, Pub. L. No. 92-512, 86 Stat. 973 (1972),
6. the Endangered Species Act, Pub. L. No. 93-205, 87 Stat. 884 (1973),
7. the Safe Drinking Water Act, Pub. L. No. 93-523, 88 Stat. 1660 (1974),
8. the Resource Conservation and Recovery Act, Pub. L. No. 94-580, 90 Stat. 2795 (1976),
9. and the Toxic Substances Control Act, Pub. L. No. 94-469, 90 Stat. 2003 (1976).
10. The National Environmental Policy Act, Pub. L. No. 91-190, 83 Stat. 852 (1969), was also an important environmental statute, but it did not have as much of an impact on the federal-state balance in environmental law.
11. See Percival, supra note 1, at 1159.
12. See John P. Dwyer, The Role of State Law in an Era of Federal Preemption: Lessons from Environmental Regulation, 60 Law & Contemp. Probs. 203, 205 (1997) ("[The role of states] is increasingly restricted to those areas not yet subject to extensive federal regulation ... and to the implementation and enforcement of permits issued pursuant to federal standards and procedures").
13. See, e.g., Henry Butler & Jonathan R. Macey, Using Federalism to Improve Environment Policy (1996);
14. Daniel A. Farber, Eco-Pragmatism: Making Senssible Environmental Decissions in an Uncertain World 179-83 (1999);
15. Pierto S. Nivola & Jon A. Shields, AEI-Brookings Joint Ctr. for Regulatory Studies, Managing Green Mandates: Local Rigors of U.S. Environment Regualtion (2001);
16. David Schoenbrod, Saving Our Environment From Washington (2005);
17. Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev. 570 (1996);
18. James L. Huffman, Making Environmental Regulation More Adaptive Through Decentralization: The Case for Subsidiarity, 52 U. Kan. L. Rev. 1377 (2004);
19. Wallace E. Oates, A Reconsideration of Environmental Federalism, in Recent Advances in Environmental Economics 1, 22 (John A. List & Aart de Zeeuw eds., 2002);
20. Percival, supra note 1;
21. Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 Minn. L. Rev. 535, 536-37 (1997);
22. Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race to the Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. Rev. 1210 (1992) [hereinafter Revesz, Rehabilitating]. Even analysts that are highly skeptical of the benefits of granting states greater control over environmental policy decisions acknowledge that some measure of decentralization is warranted.
23. See, e.g., Esty at 653 (endorsing a "middle road" between centralization and decentralization);
24. Rena I. Steinzor, EPA and Its Sisters at 30: Devolution, Revolution, or Reform?, 31 Envtl. L. Rep. 11086, 11094 (2001) (calling for "accountable devolution").
25. For critiques of decentralization, see, for example, Kirsten H. Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "To the Bottom"?, 48 Hastings L.J. 271 (1996-97);
26. Kirsten Engel & Susan Rose-Ackerman, Environmental Federalism in the United States: The Risks of Devolution, in Regulatory Competition and Economic Integration: Comparative Perspective 135 (Daniel C. Esty & Damien Geradin eds., 2001);
27. Rena I. Steinzor, Devolution and the Public Health, 24 Harv. Envtl. L. Rev. 351 (2000);
28. Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 Yale L. & Pol'y Rev. 67 (1996).
29. It is important to note that a suboptimal regulatory regime could either over-regulate or under-regulate. In some environmental literature, however, there is a greater concern that states will under-regulate absent active federal participation in environmental protection.
30. For example, some commentators fear that interjurisdictional competition for economic investment will produce a "race to the bottom" that leads to systematic underprotection of environmental values. See, e.g., Clifford Recthschaffen & David L. Markell, Reinventing Environmental Enforcement & The State/Federal Relationship 22-25 (2003) (the race-to-the-bottom theory is "one of the central underpinnings of federal environmental regulation"
31. (quoting Esty, supra note 5, at 628));
32. William A. Fischel, The Home Voter Hypothesis 162 (2001) (noting "a widespread belief that competition among jurisdictions poses a danger of a mutually-destructive 'race to the bottom'");
33. Swire, supra note 6;
34. Engel, supra note 6.
35. See Paul Teske, Regulation in the States 8 (2004) ("[S]tate regulation is far less well understood than federal regulation, though it is no less important."). In this regard, the Teske volume is an important addition to the literature.
36. See Jonathan H. Adler, Jurisdictional Mismatch in Environmental Federalism, 14 N.Y.U. Envtl. L.J. 130 (2005) [hereinafter Adler, Jurisdictional Mismatch];
37. Jonathan H. Adler, Judicial Federalism and the Future of Federal Environmental Regulation, 90 Iowa L. Rev. 377 (2005) [hereinafter Adler, Judicial Federalism];
38. Adler, supra note 2;
39. Jonathan H. Adler, Letting Fifty Flowers Bloom: Using Federalism to Spur Environmental Innovation, in The Jurisdynamics of Environmental Protection: Change and the Pragmatic Voice in Environmental Law (Jim Chen ed., 2004);
40. Jonathan H. Adler, The Ducks Stop Here? The Environmental Challenge to Federalism, 9 Sup. Ct. Econ. Rev. 205, 226 (2001);
41. Jonathan H. Adler, Wetlands, Waterfowl, and the Menace of Mr. Wilson: Commerce Clause Jurisprudence and the Limits of Federal Wetland Regulation, 29 Envtl. L. 1 (1999) [hereinafter Adler, Wetlands];
42. Jonathan H. Adler, Comment, The Green Aspects of Printz: The Revival of Federalism and Its Implications for Environmental Law, 6 Geo. Mason L. Rev. 573 (1998).
43. For articulations of the contrary position, see, for example, Paul S. Weiland, Federal and State Preemption of Environmental Law: A Critical Analysis, 24 Harv. Envtl. L. Rev. 237, 242 (2000),
44. arguing that federal "minimum standards may raise the bar by establishing a baseline of protection" and "foreclose the possibility of a race to the bottom or race to laxity," and Steinzor, supra note 6.
45. It should be noted that increases in the stringency of environmental regulation will not necessarily produce net increases in social welfare. Insofar as the costs of increased environmental regulation, economic and otherwise, are greater than the benefits, increased regulation will reduce social welfare. However, insofar as one assumes that existing environmental regulations are under-protective, the potential for federal regulations to discourage greater protection at the state level should be of some concern. See also infra Part IV.
46. Identifying and quantifying the extent of any such crowding out and other indirect effects of non-preemptive federal regulation on state regulatory activities in the environmental and other regulatory contexts is a subject for subsequent empirical investigation, and lies beyond the scope of this Article.
47. See generally Jonathan H. Adler, Free & Green: A New Approach to Environmental Protection, 24 Harv. J.L. & Pub. Pol'y 653 (2001);
48. Terry Anderson & Donald Leal, Free Market Environmentalism (1991);
49. Fred L. Smith, Jr., Markets and the Environment: A Critical Reappraisal, 13 Contemp. Econ. Pol'y 62 (1995);
50. Fred L. Smith, Jr., A Free-Market Environmental Program, 11 Cato J. 457 (1992).
51. Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. Econ. & Org. 59, 61 (1992).
52. See Philip Shabecoff, A Fierce Green Fire: The American Environmental Movement 79-80 (rev. ed. 2003).
53. See, e.g., William Donahue Ellis, The Cuyahoga 157 (1966) (stating that some viewed the prismatic colors of pollution on the Cuyahoga River as "the sweetest colors a river ever had"). External factors also affected the level of concern about waste management and other environmental practices.
54. See, e.g., Craig E. Colten & Peter N. Skinner, The Road to Love Canal: Managing Industrial Waste Before EPA 139-41 (1996) (noting that wartime imperatives reduced concern for industrial waste management during World War II).
55. For examples of how federal policy has encouraged environmental harm, see generally Government vs. Environment (Donald R. Leal & Roger E. Meiners eds., 2002).
56. See also Jason Scott Johnston, The Tragedy of Centralization: The Political Economics of Natural Resource Federalism, 74 U. Colo. L. Rev. 487, 514 (2003) ("During the Progressive Era ... most federal laws were not passed to preserve natural resources but to develop them.").
57. Paul F. Scodari, Envtl. Law Inst., Measuring the Benefits of Federal Wetland Programs 16-17 (1997);
58. see also David E. Gerard, Federal Flood Policies: 150 Years of Environmental Mischief, in Government vs. Environment, supra note 18, at 59-77.
59. See J. Bishop Grewell, War on Wildlife, in Government vs. Environment, supra note 18, at 97-121.
60. See Roger E. Meiners & Andrew P. Morriss, Silent Springs and Silent Villages: Pesticides and the Trampling of Property Rights, in Government vs. Environment, supra note 18, at 15-37.
61. Indur M. Goklany, Clearing the Air: The Real Story of the War on Air Pollution 11 (1999).
62. Id. at 5, 87-109.
63. See Arthur C. Stern, History of Air Pollution Legislation in the United States, 32 J. Air Pollution Control Ass'n 44, 44 (1982).
64. See Adler, supra note 2, at 98-100;
65. Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 Harv. L. Rev. 553, 577 (2001).
66. Goklany, supra note 22, at 5 ("[T]he wealthier the society, the more it can afford to research, develop, and install the technologies necessary for a cleaner environment.").
67. Id. at 89.
68. See Bruce Yandle, Madhusudan Bhattarai & Maya Vijayaraghavan, Environmental Kuznets Curves: A Review of Findings, Methods, and Policy Implications, PERC Research Study 02-1 (Apr. 2004);
69. see also Richard L. Stroup, Eco-nomics: What Everyone Should Know about Economics and the Environment 13-14 (2003) (summarizing research finding that willingness to pay for environmental protection increases with income);
70. Jason Scott Johnston, On the Market for Ecosystem Control, 21 Va. Envtl. L.J. 129, 146 (2002) ("There is abundant evidence that the demand for outdoor recreation and environmental amenities increases with national income.");
71. Kenneth E. McConnell, Income and the Demand for Environmental Quality, 2 Envtl. & Dev. Econ. 383, 385-86 (1997) (reporting on empirical evidence of an Environmental Kuznets Curve);
72. Matthew E. Kahn & John G. Matsusaka, Demand for Environmental Goods: Evidence from Voting Patterns on California Initiatives, 40 J.L. & Econ. 137 (1997) (noting that for most environmental goods demand rises with income);
73. Patrick Low, Trade and the Environment: What Worries the Developing Countries?, 23 Envtl. L. 705, 706 (1993) (noting that "the demand for improved environmental quality tends to rise with income"). Not all analysts accept that the Environmental Kuznets Curve can be generalized across all societies or applied to all environmental problems, or even that it accurately describes observed trends in some developed nations.
74. See, e.g., Susmita Dasgupta, et al., Confronting the Environmental Kuznets Curve, 16 J. Econ. Persp. 147 (2002);
75. David I. Stern, Progress on the Environmental Kuznets Curve?, 3 Env't & Dev. Econ. 173 (1998).
76. Goklany, supra note 22, at 3.
77. See id. at 89.
78. See Adler, supra note 2, at 100.
79. In addition, as discussed infra Part III, the adoption of federal regulations may themselves influence when a state goes through the environmental transition for a given environmental concern.
80. See Johnston, supra note 18, at 494-95 ("for most of American history, American states and regions have exhibited tremendous variation in both their current economic development opportunities and the extent to which prior development has transformed their natural environments.").
81. See supra notes 26, 27, 28 and accompanying text.
82. This increase in the demand for environmental protection should also be driven, in part, by the increased marginal value of undeveloped land or resources as the supply dwindles. For example, holding all else equal, the marginal value of each acre of undeveloped land in a sparsely populated and largely undeveloped state should be less than the value of an acre in a highly developed state.
83. See generally Office of Tech. Assessment, Wetlands: Their Use and Regulation 37-60 (1984).
84. Likewise, a state in which coastal tourism industries predominate is likely to have different priorities within the realm of coastal protection than a state in which fishing or other coastal-related industries are more dominant.
85. See, e.g., John Dwyer, The Practice of Federalism Under the Clean Air Act, 54 Md. L. Rev. 1183, 1218 (1995) (noting that "[t]he knowledge necessary to administer any air pollution control program ... can be found only at the local level."). This observation is based on the insights of Nobel Laureate economist F. A. Hayek, who observed "[t]he knowledge of the circumstances of which we must make use never exists in concentrated or integrated form but solely as the dispersed bits of incomplete and frequently contradictory knowledge which all the separate individuals possess."
86. F. A. Hayek, The Use of Knowledge in Society, 35 Am. Econ. Rev. 519, 519 (1945).
87. For more on the "knowledge problem" in environmental policy, see Adler, Jurisdictional Mismatch, supra note 10, at 165-66.
88. Butler & Macey, supra note 5, at 27 ("Federal regulators never have been and never will be able to acquire and assimilate the enormous amount of information necessary to make optimal regulatory judgments that reflect the technical requirements of particular locations and pollution sources.").
89. See Teske, supra note 9, at 169
90. (citing Matthew Potosky, Clean Air Federalism: Do States Race to the Bottom?, 61 Pub. Admin. Rev. 335 (2001)).
91. See Teske, supra note 9, at 191.
92. See Richard J. Lazarus, A Different Kind of "Republican Moment" in Environmental Law, in The Jurisdynamics of Environmental Protection: Change and the Pragmatic Voice in Environmental Law 369, 374-81 (Jim Chen ed., 2003). There are some potential problems with the use of LCV vote ratings to measure the environmental nature of a given state's politics. First, some would argue that the LCV vote ratings are politicized, if not somewhat partisan. In this critique, the LCV vote ratings do not measure whether a given politician is "pro-environment" so much as whether he or she votes in line with Washington, D.C.-based environmental organizations and that such organizations have institutional or political interests which may conflict with some environmental goals. Insofar as such groups do not maintain a monopoly on what policy positions are pro-environment, a politician could receive a lower vote rating despite his or her attentiveness to environmental concerns. At the same time, because environmental issues may differ at the state and federal level, a pro-environment vote rating in Congress may not correlate with attentiveness to environmental concerns in a given state. It may be that in a given state, environmental issues addressed by state and local governments are more important to voters than environmental issues typically addressed by the federal government, or vice versa. It is not altogether clear that state concern for local environmental problems would necessarily translate into support for politicians that are supportive of measures to address national, or even international, environmental problems. Nonetheless, LCV ratings are almost certainly measuring a factor that influences state regulatory choices, even if only the political influence of mainstream environmental interest groups.
93. See Teske, supra note 9, at 186.
94. See id. at 187-88;
95. Chris Mooney, Measuring U.S. State Legislative Professionalism: An Evaluation of Five Indices, 26 St. & Loc. Gov't Rev. 70 (1994).
96. See Teske, supra note 9, at 180-81 (finding correlation between party control of legislature and state regulatory activity).
97. See Richard B. Stewart, Pyramids of Sacrifice?: Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1211-12 (1977);
98. see also Recthschaffen & Markell, supra note 8;
99. Fischel, supra note 8, at 162.
100. See Rechtschaffen & Markell, supra note 8;
101. see also Engel, supra note 6;
102. Swire, supra note 6.
103. See, e.g., Revesz, Rehabilitating, supra note 5;
104. see also Adler, Jurisdictional Mismatch, supranote 10, at 151-54.
105. Engel, supra note 6.
106. Several economic studies have failed to find empirical evidence of any race to the bottom in environmental policy. See, e.g., Daniel L. Millimet & John A. List, A Natural Experiment on the 'Race to the Bottom' Hypothesis: Testing for Stochastic Dominance in Temporal Pollution Trends, 65 Oxford Bull. Econ. & Stat. 395 (2003);
107. Daniel L. Millimet, Assessing the Empirical Impact of Environmental Federalism, 43 J. Regional Sci. 711 (2003);
108. John A. List & Shelby Gerking, Regulatory Federalism and Environmental Protection in the United States, 40 J. Regional Sci. 453 (2000);
109. see also Oates, supra note 5, at 11-17.
110. See also Johnston, supra note 18, at 517 (noting conditions that could produce strategic over-preservation of natural resources by local jurisdictions).
111. See Thomas W. Merrill, Golden Rules for Transboundary Pollution, 46 Duke L.J. 931, 968-70 (1997);
112. see also Adler, Jurisdictional Mismatch, supra note 10, at 162-63.
113. See Oates, supra note 5, at 15 ("States appear to be 'pulled' to higher levels of abatement spending by more stringent measures in neighboring states, but relatively lax regulations nearby appear to have no effect on such expenditures.");
114. Teske, supra note 9, at 180-81 (finding states are more likely to increase, rather than decrease, air quality regulation in response to actions taken in neighboring states, and concluding that "the race to the bottom is not a factor here");
115. id. at 191-92 (also finding no "race to the bottom" in groundwater regulation).
116. Teske, supra note 9, at 180-81.
117. See, e.g., Dwyer, supra note 4, at 203 ("For the most part, states are not genuinely autonomous regulators; they exercise regulatory authority only by congressional grace.").
118. One exception is Johnston, supra note 18, which considers the consequences of past and future centralization on state natural resource policy decisions.
119. It is also possible that while the aggregate level of environmental protection could increase, social welfare might decline because the costs of the increased levels of environmental protection are greater than the benefits.
120. See, e.g., Brown v. EPA, 521 F.2d 827 (9th Cir. 1975), vacated, 431 U.S. 99 (1977);
121. Maryland v. EPA, 530 F.2d 215 (4th Cir. 1975), vacated sub nom. EPA v. Brown, 431 U.S. 99 (1977);
122. District of Columbia v. Train, 521 F.2d 971 (D.C. Cir. 1975), vacated sub nom. EPA v. Brown, 431 U.S. 99 (1977).
123. This litigation is summarized in Adler, Judicial Federalism, supra note 10, at 423.
124. See, e.g., Stewart, supra note 46.
125. Gregory v. Ashcroft, 501 U.S. 452, 457 (1991).
126. New York v. United States, 505 U.S. 144 (1992) (holding that portions of the Low-Level Radioactive Waste Policy Act Amendments unconstitutionally commandeer state governments).
127. Ass'n of Cmty. Orgs. for Reform Now (ACORN) v. Edwards, 81 F.3d 1387 (5th Cir. 1996) (invalidating portions of the Lead Contamination Control Act).
128. See Printz v. United States, 521 U.S. 898, 935 (1997) ("[N]o case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.").
129. There is language in Printz that suggests purely ministerial requirements might be exempt from the anti-commandeering rule, but the federal courts have not, as yet, found an attempted commandeering that was sufficiently immaterial to warrant an exception. See Printz, 521 U.S. at 936 (O'Connor, J., concurring) (noting the Court "appropriately refrains from deciding whether other purely ministerial reporting requirements" represent unconstitutional commandeering of state governments).
130. This may be due, in part, to the fact that relatively few statutes, environmental or otherwise, commandeer state governments. Two exceptions, the Forest Resources Conservation and Shortage Relief Act and a provision of the Lead Contamination Control Act, were invalidated by lower courts on commandeering grounds. See Bd. of Natural Res. v. Brown, 992 F.2d 937 (9th Cir. 1993);
131. ACORN, 81 F.3d 1387. A few such statutes in the environmental context remain, but these statutes have not been challenged in court.
132. Two examples are mandatory reporting requirements contained in the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §§ 11001(a)-(c), 11003(e), 11022(a), 11022(e)(3) (2000),
133. and the underground storage tank provisions of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6991a(c) (2000).
134. As these statutes impose minimal requirements on state governments, and the relevant programs are already in place, it is unlikely that these statutes will be challenged in the future. See Adler, Judicial Federalism, supra note 10, at 423-30.
135. Where federal courts have excused commandeering of state agencies in the environmental context, it has been by denying that commandeering is taking place. The court's order in Strahan v. Coxe arguably commandeered state officials under the federal Endangered Species Act, yet the First Circuit denied this was the case. See Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997);
136. Adler, Judicial Federalism, supra note 10, at 429-30.
137. "Regulatory activity" here should be understood to include legislation and agency regulations, as well as judicial decrees that have a forward-looking regulatory effect, including tort judgments that create de facto standards for product safety or professional conduct.
138. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190 (1983) ("It is well established that within Constitutional limits Congress may preempt state authority by so stating in express terms.").
139. Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992)
140. (quoting Fid. Fed. Sav. & Loan Ass'n v. De La Cuesta, 458 U.S. 141, 153 (1982)).
141. Id.
142. See Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. Chi. L. Rev. 429 (2002);
143. Michael S. Greve & Jonathan Klick, Preemption in the Rehnquist Court: A Preliminary Empirical Assessment, 14 Sup. Ct. Econ. Rev. 43 (2006).
144. See Wisc. Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991) ("When considering pre-emption, 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'"
145. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). Although this is the stated presumption, it is not clear how powerfully this presumption is applied in practice.
146. See Caleb Nelson, Preemption, 86 Va. L. Rev. 225 (2000);
147. Thomas W. Merrill, Preemption in Environmental Law: Formalism, Federalism Theory, and Default Rules, available at http://federalismproject.org/preemption/papers/ Merrill_Preemption_in_Environmental_Law.pdf (on file with the Harvard Environmental Law Review). A revised version of this article will be included in a forthcoming book from AEI Press, edited by Richard Epstein and Michael Greve.
148. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)
149. (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963));
150. see also CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993) (Courts should "focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' preemptive intent.").
151. See Teske, supra note 9, at 15 (noting federal preemption has often been "designed to facilitate greater total deregulation"). In some cases the purpose of federal preemption is to replace one type of regulation with another. This still results in less regulation than if the federal regulation was adopted in addition to the state regulation. The effects of preemption across states may not be uniform, however. A federal statute that imposes a federal standard when only a handful of states have regulated will increase regulation in some jurisdictions at the same time that it reduces regulation by preempting preexisting rules elsewhere.
152. The most obvious example, albeit a case of constitutional rather than statutory preemption, occurs under the "dormant commerce clause." States are precluded from adopting measures that discriminate against out-of-state trade not because it is assumed that such regulations will be adopted by Congress. Rather, there is a constitutional presumption against the adoption of such rules by any level of government, though Congress does retain the authority to adopt laws limiting the flow of interstate commerce or even delegating authority to the states to adopt such measures themselves. This division of authority "creates obstacles to states' enacting laws that are more protective of the environment." Richard J. Lazarus, The Making of Environmental Law 38 (2004).
153. See Weiland, supra note 11, at 258-59.
154. See supra note 68 and sources cited therein.
155. See Weiland, supra note 11, at 242 ("By creating a ceiling, environmental laws may allow the private sector to operate within a predictable and uniform environment.").
156. For a recent example, see Am. Chemistry Council v. Dep't of Transp., No. 90-345 (D.C. Cir. Oct. 13, 2006) (in which trade associations sued a federal agency seeking more expansive regulation of hazardous waste transportation so as to provide for greater preemption of local rules). Similar arguments have been used to support federal preemption of state regulations and tort suits in other areas as well.
157. See, e.g., Caroline E. Mayer, Rules Would Limit Lawsuits; U.S. Agencies Seek to Preempt States, Wash. Post, Feb. 16, 2006 at D1 (preemption by Consumer Product Safety Commission);
158. Gary Young, FDA Strategy Would Preempt Tort Suits, Nat'l L.J., Mar. 1, 2004, at 1 (preemption by Food & Drug Administration).
159. See E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. Econ. & Org. 313, 330-33 (1985).
160. For other examples of this phenomenon, see Environmental Politics: Public Costs, Private Rewards (Michael S. Greve & Fred L. Smith, Jr., eds., 1992);
161. Political Environmentalism: Going Behind the Green Curtain (Terry L. Anderson, ed. 2000).
162. Levels of stringency are not the only way in which federal and state standards could differ. For example, it would be possible for the federal government to impose a technology standard on a given facility while the state government could impose an explicit emission limit, or vice-versa.
163. See, e.g., 42 U.S.C. § 7416 (2000) (preempting state enforcement of emission standards less stringent than existing federal standards).
164. Ann E. Carlson, Federalism, Preemption and Greenhouse Gas Emissions, 37 U.C. Davis L. Rev. 281, 306 (2003) ("[E]nvironmental regulation-in which both the states and the federal government play an active role-frequently raises preemption questions.").
165. 42 U.S.C. § 7543(a) (2000).
166. There are exceptions to this rule. EPA may waive preemption of emission standards adopted by California, subject to certain conditions. 42 U.S.C. § 7543(b) (2000).
167. Where EPA has approved a waiver for California, other states may adopt the California rule. In all cases, however, the other 49 states may not adopt a "third" standard. The CAA contains similar provisions governing standards for gasoline. 42 U.S.C. § 7545(c)(4) (2000).
168. 49 U.S.C. § 32919(a) (2000). Unlike with emission standards, there is no conditional exemption for California.
169. 7 U.S.C. § 136v(b) (2000).
170. There has been a significant amount of litigation about the scope of preemption under this provision, in part because FIFRA also contains a savings clause at 7 U.S.C. § 136v(a) (2000).
171. See generally Alexandra B. Klass, Pesticides, Children's Health Policy, and Common Law Tort Claims, 7 Minn. J. L. Sci. & Tech. 89 (2005).
172. 15 U.S.C. § 2617 (2000).
173. 529 U.S. 89 (2000) (finding preemption under the Port and Waterways Safety Act of 1972).
174. See City of Milwaukee v. Illinois, 451 U.S. 304 (1981).
175. See also Robert Percival, The Clean Water Act and the Demise of the Federal Common Law of Interstate Nuisance, 55 Ala. L. Rev. 717 (2004).
176. See Printz v. United States, 521 U.S. 898 (1997).
177. 505 U.S. 144, 167 (1992).
178. See, e.g., 33 U.S.C. § 1256 (2000) (authorizing financial support for state water pollution control programs that conform with federal requirements);
179. see also Percival, supra note 1, at 1173 (noting other examples).
180. See, e.g., 42 U.S.C. § 7509 (2000) (detailing sanctions imposed on states for failing to meet federal air quality standards).
181. New York, 505 U.S. at 167-68 (1992) ("[W]here Congress has the authority to regulate private activity under the Commerce Clause, we have recognized Congress' power to offer States the choice of regulating that activity according to federal standards or having state law pre-empted by federal regulation.... This arrangement ... has been termed ... 'a program of cooperative federalism.' ..." (internal citations omitted)). Statutes that employ the cooperative federalism model include the Clean Water Act, Occupational Safety and Health Act, Resource Conservation and Recovery Act, and the Surface Mining Control and Reclamation Act.
182. Id.
183. See Dwyer, supra note 38, at 1184.
184. See generally Denise Scheberle, Federalism and Environmental Policy: Trust and the Politics of Implementation (1997).
185. Adam Babich, Our Federalism, Our Hazardous Waste, and Our Good Fortune, 54 Md. L. Rev. 1516, 1534 (1995) ("The essence of cooperative federalism is that states take primary responsibility for implementing federal standards, while retaining the freedom to apply their own, more stringent standards."). A notable exception is the case of product standards. As a general matter, federal product standards, such as vehicle emission standards, tend to preempt more stringent state standards.
186. See, e.g., 42 U.S.C. § 7543(a) (2000) (preemption of state automobile emission standards);
187. 42 U.S.C. § 7545(c)(4)(A) (2000) (preemption of state fuel standards).
188. 42 U.S.C. §§ 7401-7661f (2000).
189. 42 U.S.C. § 7410 (2000).
190. 42 U.S.C. § 7509 (2000). The imposition of such sanctions is not solely, or even primarily, within EPA's discretion, as individual citizens and activist groups may force EPA's hands through citizen suits seeking to enforce the express requirements of the CAA and regulations promulgated pursuant to it.
191. See 42 U.S.C. § 7604 (2000).
192. 42 U.S.C. § 7506 (2000).
193. See Stewart, supra note 46, at 1204 ("State and local officials
194. see also supra note 57, and cases cited therein.
195. This author has argued elsewhere that, while the CAA's inducement scheme is effective, it also may be unconstitutional insofar as it exceeds the scope of permissible uses of conditional spending. See Adler, Judicial Federalism, supra note 10, at 447-52.
196. It should be noted that the hypotheses presented in this section are not dependent upon any particular theory about what sorts of interests ultimately drive the policy-making process. The hypotheses are equally compatible with public interest and public choice theories of policy formation. See Andrew P. Morriss, Bruce Yandle & Andrew Dorchak, Choosing How to Regulate, 29 Harv. Envtl. L. Rev. 179, 214-23 (2005) (summarizing various theories of regulation);
197. Farber, supra note 15, at 62-70 (same).
198. William W. Buzbee, Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89 Iowa L. Rev. 1, 55 (2003) ("[I]ncreased activity and publicity about an issue can over time change stakeholder perceptions and possibly preferences.").
199. See Goklany, supra note 22, at 43 (noting that "indoor air quality, particularly in the home, is a far better indicator of the impact of air pollution on public health" than is outdoor air quality).
200. For a discussion of where federal intervention is, and is not, justified to address environmental concerns, see Adler, Jurisdictional Mismatch, supra note 10, at 139-57.
201. See EPA, Air - Indoor Air Quality, http://www.epa.gov/iaq (last visited Oct. 18, 2006) (on file with the Harvard Environmental Law Review).
202. For example, EPA distributes various publications, posters and other materials on the risks posed by secondhand smoke. See EPA, Indoor Air Quality - Smokefree Homes Program, http://www.epa.gov/smokefree/ publications.html (last visited Oct. 18, 2006) (on file with the Harvard Environmental Law Review).
203. See EPA, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders (1992), available at http://cfpub2.epa.gov/ncea/cfm/ recordisplay.cfm?deid=2835. While quite influential, this study has been subject to criticism and challenged in court.
204. See Flue-Cured Tobacco Coop. Stabilization Corp. v. U.S. EPA, 4 F. Supp. 2d 435, (M.D.N.C. 1998), vacated on other grounds, 313 F.3d 852 (4th Cir. 2002).
205. See, e.g., Editorial, Yes, Smoking's Still Dangerous, Capital Times, (Madison, Wis.) July 22, 1998, at 8A, available at 1998 WLNR 2459193 (on file with the Harvard Environmental Law Review) ("That EPA report turned secondhand smoke into a national issue, and led to state and local bans on smoking in public buildings, airplanes, restaurants and other spaces.");
206. Jim Quinn, Big Ban to Come: Smoking Prohibition in State Vehicles, Buildings to Go into Effect June 13, Five Months After Order, Akron Beacon J., Apr. 30, 1993, at C1, available at 1993 WLNR 1234938 (on file with the Harvard Environmental Law Review) (Ohio Governor "Voinovich signed the order Jan. 8 after the U.S. EPA issued a report that called secondhand smoke a health hazard");
207. Study Prompts More Smoking Restrictions, Bradenton Herald, Mar. 1, 1993, at A4, available at 1993 WLNR 737630 (on file with the Harvard Environmental Law Review) ("A government report linking secondhand cigarette smoke to lung cancer and children's diseases has triggered a surge in smoking restrictions across America - from a delicatessen in Denver to state offices in tobacco-growing Kentucky.").
208. See The Health Consequences of Exposure to Tobacco Smoke: A Report of the Surgeon General (2006), available at http://www.surgeongeneral.gov/ library/secondhandsmoke.
209. See Harlan Spector, Sweeping Prohibition on Smoking Is Adopted, Cleve. Plain Dealer, Nov. 8, 2006, at S7, available at 2006 WLNR 19427960 (on file with the Harvard Environmental Law Review) (citing Surgeon General's report as factor contributing to passage of statewide indoor smoking ban).
210. See, e.g., U.S. Global Change Research Program, Climate Change Impacts on the United States: The Potential Consequences of Climate Variability and Change (2000), available at http://www.usgcrp.gov/usgcrp/Library/ nationalassessment/00Intro.pdf.
211. See also Nat'l Academy of Sciences Comm. on the Science of Climate Change, Climate Change Science: An Analysis of Some Key Questions (2001) (specifically requested by the Bush Administration);
212. EPA, Global Warming, http://yosemite.epa.gov/oar/globalwarming.nsf/ content/index.html (last visited Oct. 18, 2006) (on file with the Harvard Environmental Law Review);
213. U.S. Dep't of Energy, Climate Change, http://www.energy.gov/environment/ climatechange.htm (last visited Oct. 18, 2006) (on file with the Harvard Environmental Law Review).
214. Congress considered, and rejected, a proposal to control greenhouse gas emissions during the debate over the legislation that would eventually become the 1990 CAA Amendments. During the Clinton Administration, several environmental organizations petitioned EPA, claiming the agency was nonetheless required to regulate greenhouse gases under the CAA. EPA, meanwhile, declared it had the authority to adopt such regulations, yet it did not take any steps to do so. Subsequently, under the Bush Administration, EPA revised its legal opinion, concluding that the CAA did not confer regulatory jurisdiction over greenhouse gas emissions. The Bush Administration has opposed legislative proposals to regulate greenhouse gas emissions. At the time of this writing, litigation efforts to force EPA to regulate greenhouse gases have been unsuccessful, but are ongoing. See Massachusetts v. EPA, 413 F.3d 50 (D.C. Cit. 2005),
215. cert. granted, 126 S. Ct. 2960 (2006). See Teske, supra note 9, at 17 (noting several states adopted carbon dioxide standards, while others oppose ratification of the Kyoto Protocol);
216. see also Barry G. Rabe, Statehouse and Greenhouse: The Emerging Politics of American Climate Change Policy xi-xii (2004) ("[O]ver the past decade approximately one-third of the American states have enacted multiple policies that show considerable promise of reducing greenhouse gases.");
217. Carlson, supra note 78, at 282 (noting many states "have quietly begun to fill the void in leadership that some believe exists at the national level").
218. See, e.g., Juliet Eilperin, Cities, States Aren't Waiting for U.S. Action on Climate, Wash. Post, Aug. 11, 2006, at A1 (noting state and local governments are adopting climate change policies due to "deadlock" over the issue at the federal level);
219. Jim Marzilli, Laboratories of Progress, Am. Prospect, Oct. 2005, at A13.
220. Assemb. B. 1493, 2001-2002 Sess. (Ca. 2002), codified at Cal. Health & Safety Code § 43018.5(a) (2003).
221. See, e.g., Eilperin, supra note 111 ("Some local officials said they are pushing ahead with plans because the Bush administration, which has promoted cleaner technology but opposes mandatory curbs on greenhouse gas emissions, has failed to adequately address the problem."). Despite its relative inaction on the climate front, EPA takes credit for facilitating some state programs.
222. See EPA, Global Warming - Actions: State, http://yosemite.epa.gov/oar/ globalwarming.nsf/content/ActionsState.html (last visited Nov. 8, 2006) (on file with the Harvard Environmental Law Review) ("Many of these actions were initiated and/or have received assistance from the US EPA's State and Local Climate Change Program, a capacity-building program that provides technical and financial assistance to state (and local) officials and organizations that support state functions.").
223. Nat'l Research Council, Confronting the Nations's Water Problems: The Role of Research 68 (2004) ("[A] federal role is appropriate in those research areas where the benefits of such research are widely dispersed and do not accrue only to those who fund the research.").
224. See Esty, supra note 5, at 614-15 ("Absent centralized functions, independent state regulators will either duplicate each other's analytic work or engage in time-consuming and complex negotiations to establish an efficient division of technical labor."). Of course it is possible that competition could improve scientific research insofar as different entities pursue different research methodologies to address emerging environmental problems.
225. Where federal regulation is preemptive, it may also provide a "ceiling" as well. See supra Part II.A.
226. "See Barry G. Rabe, Mikael Roman & Arthur N. Dobelis, State Competition as a Source Driving Climate Change Mitigation, 14 N.Y.U. Envtl. L.J. 1, 6-7 (2005) (noting "the notion of federal policy as a 'floor' protecting certain 'fundamental rights' still has vitality" in environmental policy debates).
227. See McNollgast (Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast), Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 25 (1994) (noting that "an action is informative if it is taken by an informed person who pays a fee, expends effort, or foregoes some valuable alternative activity in order to take the action").
228. On signaling generally, see Jeffrey S. Banks, Signaling Games in Political Science (1991).
229. See Jerome M. Organ, Limitations on State Agency Authority to Adopt Environmental Standards More Stringent than Federal Standards: Policy Considerations and Interpretive Problems, 54 Md. L. Rev. 1373, 1376-86 (1995);
230. see also Arnold W. Reitze, Jr., Federalism and the Inspection and Maintenance Program Under the Clean Air Act, 27 Pac. L.J. 1461, 1465 (1996) (noting "movement among state legislatures to prohibit more stringent state standards").
231. Organ, supra note 119, at 1376 n.13.
232. Id. at 1377.
233. See N.M. Stat. § 74-2-5 (2003);
234. Colo. Rev. Stat. § 25-7-114.2 (2004).
235. See Va. Code Ann. § 62.1-44.15:1 (2004).
236. See, e.g., Ky. Rev. Stat. Ann. § 13A.120 (2003).
237. See Organ, supra note 119, at 1390.
238. See supra notes 38-39 and accompanying text.
239. See Organ, supra note 119, at 1380 (noting some states bar "an agency from promulgating standards or regulations more stringent than federal law unless unique circumstances justify more stringent regulations").
240. See Adler, Jurisdictional Mismatch, supra note 10, at 163-69 (noting inadequate understanding of data concerning environmental problems covered by various federal programs).
241. See Organ, supra note 119, at 1387.
242. See Adler, Jurisdictional Mismatch, supra note 10, at 145-49 (noting potential benefits from economies of scale generated by regulatory uniformity).
243. See supra Part I.A.
244. See id.
245. Environmental protections can be evaluated in both quantitative and qualitative terms. This initial discussion focuses exclusively on the quantity of environmental protection. The effects of qualitative differences in environmental protection are discussed below. See infra Part IV.
246. B, the presence of a federal regulatory floor will result in a lower level of environmental protection
247. William Eskridge defines a "vetogate" as "a place within a process where a statutory proposal can be vetoed or effectively killed." William N. Eskridge, Jr., Norms, Empiricism, and Canons in Statutory Interpretation, 66 U. Chi. L. Rev. 671, 677 n. 13 (1999).
248. See McNollgast, supra note 118, at 11 (observing that because "attempts to pass new legislation typically must navigate through numerous veto gates ... it is difficult and time-consuming to change most prior legislative bargains"). While some states have different legislative structures, and therefore may have a lesser (or greater) number of "vetogates," the general observation that determined minority interests can block the adoption of policies that enjoy majority support still holds.
249. Id. at 16 (noting "the basic structure of government establishes several checks on the ability of legislative majorities to enact their will").
250. Lazarus, supra note 71, at 32 (noting the "strong structural bias within our existing lawmaking institutions in favor of government's acting more slowly and incrementally"). While Lazarus' comments are directed at the national government, this same structural bias can be seen in state governments as well.
251. The utility maximized by the policy-maker need not be the policy-maker's "self-interest" but could also be the "public interest" that the policy-maker seeks to serve. See Nathaniel O. Keohane, Richard L. Revesz & Robert N. Stavins, The Choice of Regulatory Instruments in Environmental Policy, 22 Harv. Envtl. L. Rev. 313, 333 (1998) (observing that a legislator may derive utility from many different interests). Alternate assumptions do not alter the analysis. Indeed, as Jonathan Macey observes, [O]ver a wide range of issues, the outcomes predicted by the public-interest model will be identical to those predicted by the interest-group model when the political-support-maximizing solution varies widely from jurisdiction to jurisdiction.
252. Jonathan R. Macey, Federal Deference to Local Regulators and the Economic Theory of Regulation: Toward a Public-Choice Explanation of Federalism, 76 Va. L. Rev. 265, 284 (1990);
253. see also supra note 98 and sources cited therein.
254. See Buzbee, supra note 99, at 27-28 (noting policy-makers may view "regulatory opportunity as a commons resource much as fishers would view a shared ocean," resulting in regulatory inattention).
255. See Macey, supra note 139, at 275 (noting the division of authority between federal and state governments can enable Congress to "shift the blame for controversial enactments even more effectively ... than by deferring to administrative agencies");
256. Buzbee, supra note 99, at 31 ("Where numerous regulators could be blamed for the ill, or sought out for relief, demanders of regulation encounter substantial informational and strategic hurdles confounding attribution decisions.").
257. See Michael S. Greve, Against Cooperative Federalism, 70 Miss. L.J. 557 (2000-01);
258. see also Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and "Dual Sovereignty" Doesn't, 96 Mich. L. Rev. 813, 828 (1997-98) (noting "accountability" argument for anti-commandeering rule, insofar as it is accepted, applies with equal force to "cooperative federalism" arrangements).
259. See Keohane, Revesz & Stavins, supra note 139, at 313 (noting that the design of environmental policy requires determining both the desired level of environmental protection and what policy instruments should be used to achieve the specific environmental goal).
260. See Teske, supra note 9, at 23 (summarizing potential advantages of state regulation).
261. See supra notes 38-39 and accompanying text.
262. See Dwyer, supra note 4, at 222 ("The sheer size of the nation and the dizzying variety of social and environmental conditions and political preferences leave little hope that the central government could efficiently or accurately custom tailor environmental laws for different regions.").
263. See also Johnston, supra note 18, at 487 ("Regulatory centralization may be ... just as tragic for natural resources as the regime of local control that it is designed to replace.").
264. On state innovation generally, see Alexander Volokh et al., Nat'l Envtl. Policy Inst. & Reason Pub. Policy Inst., Race to the Top: The Innovative Face of State Environmental Management (1998).
265. See also Revesz, supra note 25, at 636 ("[T]he states, not the federal government, produced the most innovation in pollution control legislation in the 1990s.").
266. See Revesz, supra note 25, at 603 (noting state leadership in waste site clean up and brownfield redevelopment);
267. J. Winston Porter, Cleaning Up Superfund: The Case for State Environmental Leadership, Reason Foundation Policy Study No. 195 (1995), available at http://www.reason.org/ps195.pdf.
268. See Adler, Judicial Federalism, supra note 10, at 462-63.
269. For instance, as of 1992 ten states were using wetland classification systems to evaluate function and value in the regulatory process. William E. Taylor & Dennis Magee, Should All Wetlands Be Subject to the Same Regulation?, 7 Nat. Resources & Env't 32, 34 (1992).
270. The development of these sorts of programs is important because "[a]bsent regulatory classification, there is a presumption that all wetlands are of equal significance with respect to functional value, and that no distinctions are necessary in the level of regulation or in designating mitigation requirements." Id. at 32.
271. On the other hand, a review of Corps permitting decisions found no evidence such considerations entered into the regulatory process. See Michael J. Mortimer, Irregular Regulation Under Section 404 of the Clean Water Act: Is the Congress or the Army Corps of Engineers to Blame?, 13 J. Envtl. L. & Litig. 445, 446 (1998).
272. The costs and benefits of a given measure need not be measured in monetary terms. Moreover, this claim is not dependent upon being able to quantify the costs and benefits of a given regulatory measure. Whether a given measure increases social welfare is independent of the ability to measure effects on social welfare. In addition, a narrow cost-benefit comparison may ignore distributional effects that are equally relevant in the formulation of sound policies.
273. See 33 U.S.C. § 1344 (2000).
274. Only two states, Michigan and New Jersey, have delegated authority to administer wetlands regulations in lieu of the federal government. See Roxanne Thomas, Profiling State Wetland Programs, Nat'l Wetlands Newsl. (Envtl. Law Inst., Wash., D.C.), July-Aug. 2006, at 14.
275. The primary exception is federal funding for state coastal zone management programs which may include regulations of coastal wetlands. See 16 U.S.C. § 1455 (2000).
276. Alexandra D. Dawson, Massachusetts' Experience in Regulating Wetlands, in Wetland Protection: Strengthening the Role of the States 255, 255 (Ass'n of State Wetland Managers, 1985).
277. Id.
278. Id.
279. This history is recounted in Adler, Wetlands, supra note 10, at 47-54.
280. Jon A. Kusler et al., State Wetland Regulations: Status of Programs and Emerging Trends 1 (1994).
281. U.S.C. § § 1311(a), 1362(6, 12) (2000).
282. U.S.C. § 1362(7) (2000).
283. C.F.R. § 328.3(a) (2005).
284. U.S.C. § 1344(a), (c) (2000).
285. See Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 168 (2001)
286. (citing Corps' 1974 regulation, 33 C.F.R. § 209.120(d)(1) (1974)).
287. Nat'l Res. Def. Council v. Callaway, 392 F. Supp. 685, 686 (D.D.C. 1975).
288. EPA also disagreed with the Army Corps' initial statutory interpretation. SWANCC, 531 U.S. at 183, n.10 (Stevens, J., dissenting).
289. Callaway, 392 F. Supp. at 686.
290. See Kusler et al., supra note 159, at 5-8 (Table 1). The states in question are Alabama, Delaware, Florida, Georgia, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, New Jersey, North Carolina, South Carolina, and Wisconsin.
291. Id. at 3.
292. See Oliver A. Houck & Michael Rolland, Federalism in Wetlands Regulation: A Consideration of Delegation of Clean Water Act Section 404 and Related Programs to the States, 54 Md. L. Rev. 1242, 1253 (1995).
293. U.S.C. §§ 1451-1465 (2000).
294. U.S.C. § 1452(2)(A) (2000).
295. See supra note 154.
296. U.S. 159, 168 (2001).
297. Id. at 174.
298. See, e.g., Lance D. Wood, Do Not Be Misled: CWA Jurisdiction Extends to All Non-Navigable Tributaries of the Traditional Navigable Waters and to Their Adjacent Wetlands, 34 Envtl. L. Rep. 10187, 10189, 10195 (2004) (noting "potentially disastrous" and "catastrophic" effects).
299. Writing in dissent, Justice Stevens also predicted dire consequences from the Court's decision to "needlessly weaken[] our principal safeguard against toxic water." 531 U.S. at 175 (Stevens, J., dissenting).
300. See Wood, supra note 175, at 10189 (noting SWANCC was "ambiguous" and courts have been "inconsistent" in their interpretations); Amended Statement of Patrick Parenteau, Professor of Law, Vermont Law School, Before the House of Representatives Comm. on Gov't Reform, Sept. 19, 2002 ("The decision has created substantial uncertainty regarding the geographic jurisdiction of the Clean Water Act.");
301. Position Paper on Clean Water Act Jurisdiction Determinations Pursuant to the Supreme Court's January 9, 2001 Decision, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, Ass'n of State Wetland Managers, Dec. 2001 ("The section 404 regulatory program has been in turmoil ever since the Supreme Court's SWANCC decision.").
302. Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of "Waters of the United States," 68 Fed. Reg. 1991 (proposed Jan. 15, 2003).
303. Id. at 1995, Appendix A.
304. See Eric Pianin, EPA Scraps Changes To Clean Water Act; Plans Would Have Reduced Protection, Wash. Post, Dec. 17, 2003, at A20.
305. One reason given by the Army Corps and EPA to forego the rule-making was that federal courts had narrowly interpreted SWANCC's impact. Ironically, on the same day as the Army Corps/EPA announcement, the U.S. Court of Appeals for the Fifth Circuit held that such narrow interpretations of SWANCC were "unsustainable." See Daniel Simmons, Navigating SWANCC: An Examination of the U.S. Army Corps of Engineers' Authority Under the Clean Water Act, 43 Envtl. L. Rep. 10723, 10730 (2004)
306. (citing In re Needham, 354 F.3d 340, 345 (5th Cir. 2003)).
307. U.S. Gen. Accounting Office, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO-04-297, Feb. 2004, at 3 ("Corps districts differ in how they interpret and apply the federal regulations when determining what wetlands and other waters fall within the jurisdiction of the federal government.").
308. Id.
309. See, e.g., United States v. Deaton, 332 F.3d 698 (4th Cir. 2003) (interpreting SWANCC narrowly);
310. United States v. Rapanos, 339 F.3d 447 (6th Cit. 2003) (same);
311. United States v. Rueth Dev. Co., 335 F.3d 598 (7th Cir. 2003) (same).
312. Compare In re Needham, 354 F.3d 340 (5th Cir. 2003) (after SWANCC federal jurisdiction only extends to wetlands adjacent to navigable waters);
313. Rice v. Harken Exploration Co., 250 F.3d 264 (5th Cir. 2001) (same).
314. See Needham, 354 F.3d 340;
315. Rice, 250 F.3d 264.
316. S. Ct. 2208 (2006).
317. For an early assessment of Rapanos and its application by lower courts, see Jonathan H. Adler, Reckoning with Rapanos: Revisiting "Waters of the United States" and the Limits of Federal Wetland Regulation, 14 Mo. Envtl. L. & Pol'y Rev. (forthcoming 2006).
318. Id.
319. See Buzbee, supra note 99, at 14 (noting "uncertain regulatory turf creates both demand and supply-side incentives for regulatory inattention").
320. According to Professor Michael Gerhardt, [A]t least 19 states have responded to the decision by either enacting or recommending the enactment of laws to fill the void left as a result of the Court's decision. These states include, inter alia, California, Connecticut, Illinois, New Jersey, North Carolina, Ohio, Oregon, South Carolina, Virginia, and Wisconsin. These reactions are a clear illustration of environmental federalism in action.
321. Michael J. Gerhardt, The Curious Flight of the Migratory Bird Rule, 31 Envtl. L. Rep. 11079, 11085 (2001). The state of Ohio, for example, enacted an "emergency measure" to extend state regulations to isolated wetlands in July 2001, only a few months after the SWANCC decision. Sub. H.B. 231, 124th Gen. Assemb., Reg. Sess. (Ohio 2001).
322. See also C. Victor Pyle III, Isolated Wetlands Jurisprudence Post-SWANCC and Resulting Federal and State Attempts to Fill the Void, 11 Southeastern Envtl. L.J. 91, 101-06 (2002) (summarizing initial state-level responses);
323. Jan Goldman-Carter, Isolated Wetland Legislation: Running the Rapids at the State Capitol, Natl'l Wetlands Newsl. (Envtl. L. Inst., Wash., D.C.), May-June 2005, at 27 (same).
324. See generally Robert N. Strassfeld, If ...: Counterfactuals in the Law, 60 Geo. Wash. L. Rev. 339 (1992).