Adaptive federalism: The case against reallocating environmental regulatory authority

Minnesota Law Review

Volumn 92, Issue 6, 2008, Pages 1796-1850

  Adelman, David E ^a   Engel, Kirsten H ^a  

^a UNIVERSITY OF ARIZONA   (United States)

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EID: 49049103556     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (296)

1. PAUL TESKE, REGULATION IN THE STATES 4-5 (2004) (enumerating preemptive federal statutes and noting that "more federal preemptions have occurred in recent decades than over the rest of U.S. history"). In addition, several federal agencies have recently claimed in the preambles to regulations in the Federal Register that their regulatory actions preempt state statutory and common law.
2. William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction, 82 N.Y.U. L. REV. 1547, 1573 (2007).
3. See Edmund L. Andrews, Auto Chiefs Make Headway Against a Mileage Increase, N.Y. TIMES, June 7, 2007, at C1 (reporting that a House bill would prevent the Environmental Protection Agency (EPA) from authorizing states to regulate vehicle greenhouse gas emissions, thus preempting rules promulgated by California and adopted by other states). The two powerful House sponsors, Representatives John Dingell and Rick Boucher, ultimately abandoned the preemption effort.
4. California Congressional Leaders Defeat Effort to Preempt State's Climate Change Legislation, CAL. CAPITOL HILL BULL. (Cal. Inst. for Fed. Pol'y Res., Wash., D.C.), June 22, 2007, at 6, available at http://www.calinst.org/2007Bullpdf.shtml.
5. See, e.g., H.R. 2927, 110th Cong. § 2(a) (2007) (preempting any state law or regulation on consumer tire fuel efficiency information that is different from requirements imposed by the Department of Transportation); Alternative Fuel Standard Act of 2007, S. 1158, 110th Cong. § 2 (2007) (preempting state and local laws and regulations relating to the renewable or alternative energy content of fuels when the Administrator of the EPA issues a waiver during an "extreme or unusual fuel supply circumstance"); Gasoline for America's Security Act of 2005, H.R. 3893, 109th Cong. §§ 101, 102, 107 (as presented in House, Oct. 7, 2005) (preempting state authority regarding the siting and operation of oil refineries on federal lands within a state and authorizing the establishment of a Federal Fuels List of approved fuels and blends); Engine Coolant and Antifreeze Bittering Agent Act of 2005, S. 1110, 109th Cong. § 2 (2005) (preempting state or local laws that impose requirements different from that of the federal government relating to the inclusion of a bittering agent in retail engine coolant or antifreeze). A review of bills currently pending before Congress reveals a heated debate over preemption; several bills on similar topics expressly reject preemption. See Carbon-Neutral Government Act of 2007, H.R. 2635, 110th Cong. § 104 (2007) ("Nothing in this Act . . . shall be interpreted to preempt or limit the authority of a State to take any action to address global warming."); Future Fuels Act, H.R. 2296, 110th Cong. § 304(d)(6) (2007) ("Nothing in this chapter shall be construed to preempt State law relating to higher fuel economy standards applicable to replacement tires designed for use on passenger cars and trucks."); H.R. 2215, 110th Cong., § 711 (2007) (adding a title to the Clean Air Act providing a reduction in greenhouse gas emissions from vehicles and aircraft and stating that "nothing in this title shall be interpreted to preempt or limit State actions to address climate change").
6. Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 258-59 (2004) Giolding that section 209(a) of the Clean Air Act preempts California regulations prohibiting the purchase or lease by various public and private fleet operators of vehicles that do not comply with stringent emission requirements); see also Erwin Chemerinsky, Empowering States When It Matters: A Different Approach to Preemption, 69 BROOK. L. REV. 1313, 1314-15 (2004).
7. E.g., Am. Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003) (addressing the disclosure of insurance policies sold in Europe between 1920 and 1945); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (cigarette smoking); Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (state tort law).
8. See, e.g., Jonathan H. Adler, Jurisdictional Mismatch in Environmental Federalism, 14 N.Y.U. ENVTL. L.J. 130, 157 (2005) (arguing that the division of authority in environmental law is inefficient as it fails to comport with an analytical framework that reserves issues of national scope to the federal government and issues of local effect to state governments);
9. Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL'Y REV. 23, 25 (1996) ("The Matching Principle suggests that, in general, the size of the geographic area affected by a specific pollution source should determine the appropriate governmental level for responding to the pollution. There is no need for the regulating jurisdiction to be larger than the regulated activity.");
10. Daniel C. Esty, Revitalizing Environmental Federalism, 95 MICH. L. REV. 570, 587 (1996) ("Whenever the scope of an environmental harm does not match the regulator's jurisdiction, the cost-benefit calculus will be skewed and either too little or too much environmental protection will be provided.");
11. Richard O. Zerbe, Optimal Environmental Jurisdictions, 4 ECOLOGY L.Q. 193, 245 (1974) ("[W]hile the arguments show the case for local jurisdiction [over environmental regulation] to be strong, important exceptions remain . . . . where there is undue political influence at local levels, where there is sufficient interjurisdictional pollution, and where technological considerations give substantially greater efficiency to larger jurisdictions.").
12. Adler, supra note 6, at 135 ("[M]ost environmental problems are local or regional.").
13. See, e.g., Chemerinsky, supra note 4, at 1329; Renee M. Jones, Dynamic Federalism: Competition, Cooperation and Securities Enforcement, 11 CONN. INS. L.J. 107, 109 (2004);
14. Robert A. Schapiro, Polyphonic Federalism: State Constitutions in the Federal Courts, 87 CAL. L. REV. 1409, 1411-13 (1999).
15. The divergent stands that states have taken on regulating greenhouse gases reflect this variation, with some states seeking to regulate them aggressively (e.g., California, Oregon, New Jersey) and others formally opposing the Kyoto Protocol and, in at least one case, barring state regulators from working with the EPA on voluntary climate-change programs. Tom Arrandale, The Pollution Puzzle, GOVERNING, Aug. 2002, at 22, 23;
16. see also Brian J. Gerber & Paul Teske, Regulatory Policymaking in the American States: A Review of Theories and Evidence, 53 POL. RES. Q. 849, 856 (2000) ("[S]tates vary considerably in terms of their populations, political cultures, and political institutions.");
17. Matthew Potoski, Clean Air Federalism: Do States Race to the Bottom?, 61 PUB. ADMIN. REV. 335, 338-39 (2001) (finding a correlation between the "political climate" in a state and whether a state enacts more stringent standards than mandated by the EPA under the Clean Air Act);
18. Evan J. Ringquist & David H. Clark, Issue Definition and the Politics of State Environmental Justice Policy Adoption, 25 INT'L J. PUB. ADMIN. 351, 364 (2002) ("[T]he general political and economic characteristics of a state exert terrific influence over the type of policies that a state will adopt.").
19. For example, rigorous fire suppression appeared to be a logical policy for many years, but it gradually became evident that fire serves an important ecological function, so policy shifted to embrace prescribed burns. However, in part because of this earlier policy, human development had extended into many forested regions, raising the stakes of prescribed burns. See, e.g., William L. Baker, Restoration of Landscape Structure Altered by Fire Suppression, 8 CONSERVATION BIOLOGY 763, 767 (1994) (asserting that extensive periods of fire suppression may require a return to the presettlement fire regime in order to restore landscape structures).
20. Here we draw upon an example from the natural world as a repository of the characteristics that contribute to the successful maintenance of a system over long time periods and in the face of change. In doing so, we use natural adaptive systems in a manner similar to the use of evolution in the work of E. Donald Elliott and others on the evolution of environmental statutes. E. Donald Elliott et al., Toward a Theory of Statutory Evolution: The Federalization of Environmental Law, 1 J.L. ECON. & ORG. 313, 314-15 (1985) (modeling development of environmental statutes using evolution as a metaphor for influences of the political and organizational environment).
21. Simon A. Levin, Complex Adaptive Systems: Exploring the Known, the Unknown and the Unknowable, 40 BULL. AM. MATHEMATICAL SOC. 3, 5-6 (2002) (observing that in complex adaptive systems, "[t]he winnowing of variation must be balanced against the appearance of new variation; else the systems will run down").
22. C.S. Holling, From Complex Regions to Complex Worlds, 7 MINN. J.L. SCI. & TECH. 1, 2-4 (2005); Levin, supra note 12, at 4 (pointing out that "[natural] selection is manifest on multiple interacting scales").
23. The multilevel structure of an adaptive model also mirrors the current system of environmental federalism. But one must be careful not to take the analogy too far. Clearly, many features of the federal system have no analogue in the natural world. Ecosystems, for instance, have nothing akin to a national government with hierarchical authority over their subdivisions, and natural systems are not "designed" to achieve societal ideals, such as justice or economic efficiency. As we will show, these differences do not diminish the value of an adaptive model; its basic structure is uniquely suited to sustaining a diverse range of environmental policy options and processes for winnowing and refining them that a federal system would do well to duplicate.
24. See Chemerinsky, supra note 4, at 1315-16; Erwin Chemerinsky, Empowering States: The Need to Limit Federal Preemption, 33 PEPP. L. REV. 69, 74-75 (2005) [hereinafter Chemerinsky, Empowering States]; Jones, supra note 8, at 107; Schapiro, supra note 8, at 1411-13;
25. Robert A. Schapiro, Justice Stevens's Theory of Interactive Federalism, 74 FORDHAM L. REV. 2133, 2135 (2006) [hereinafter Schapiro, Justice Stevens];
26. Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243, 248-50 (2005) [hereinafter Schapiro, Interactive Federalism].
27. See Pietro S. Nivola, Does Federalism Have a Future?, PUB. INTEREST, Winter 2001, at 44, 46 (noting the prevalence of federal preemption and observing that businesses seek "compulsory ceilings on the possible excesses of zealous states").
28. Wallace E. Oates & Paul R. Portney, The Political Economy of Environmental Policy, in 1 HANDBOOK OF ENVIRONMENTAL ECONOMICS 326, 346 (Karl-Göran Mäler & Jeffrey R. Vincent eds., 2003) ("Environmental federalism thus remains a highly contentious issue, both in terms of theory and practice.").
29. The term "matching principle" is a relatively recent one in the federalism literature, as it was first coined in a 1996 article. Butler & Macey, supra note 6, at 25 (suggesting a "Matching Principle," according to which "the size of the geographic area affected by a specific pollution source would determine the appropriate governmental level for responding to the pollution," and asserting that "[t]here is no need for the regulating jurisdiction to be larger than the regulated activity"). For a similar view, see Adler, supra note 6, at 157.
30. Schapiro, Interactive Federalism, supra note 15, at 285-88.
31. As one commentator has observed, support and opposition to devolution shows some interesting contradictions. Most generally, conservatives hoped that the combination of federal deregulation and devolution of powers to the states would lead to a greatly reduced regulatory role at both levels. Instead, federal deregulation and reduced social regulatory enforcement created a gap that some state actors have moved to fill. And while conservatives generally applaud the idea of different state and local jurisdictions pursuing different policy approaches, they get quite concerned when one or a few states or local jurisdictions are able to leverage their policies into, in effect, national policies. On the other hand, from the historical lessons of segregation policies by the states, halted only by federal policy intervention, many liberals retain strong skepticism about state policymaking even in an era when it often seems to their advantage, at least in regulatory policy. TESKE, supra note 1, at 238.
32. Barry Rabe, Environmental Policy and the Bush Era: The Collision Between the Administrative Presidency and State Experimentation, 37 PUBLIUS 413, 413 (2007).
33. Id. at 421 (observing that the Bush administration has imposed numerous "federal rules and mandates that expanded the state government workload and narrowed its ability to pursue priorities").
34. See supra note 6 and accompanying text; see also Oates & Portney, supra note 17, at 342 (observing that a central tenet of environmental economics "is that the responsibility for providing a particular service should be placed with the smallest jurisdiction whose boundaries encompass the various benefits and costs associated with the provision of the service").
35. Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1210 (1977). Stewart's preference for local decision making was broader than simple cost-internalization, and included the opportunity to reap the benefits of policy experimentation and nonutilitarian values of self-determination. Id. at 1215-16.
36. Id. at 1215.
37. Id. at 1210 ("As a nation, we have traditionally favored noncentralized decisions regarding the use and development of the physical environment."); see also Butler & Macey, supra note 6, at 25 ("[T]he size of the geographic area affected by a specific pollution source should determine the appropriate governmental level for responding to the pollution . . . . [W]hen a particular polluting activity is limited to a particular locality or state, there is very little justification for federal environmental regulation."); Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210, 1222 (1992) ("Given our system of federalism, in which state and local governments have broad police powers, and in which, throughout most of our history, they have had primary responsibility for health-and-safety regulation, there ought to be an affirmative justification for federal intervention.").
38. See, e.g., Kirsten H. Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "to-the- Bottom"?, 48 HASTINGS L.J. 271, 274-76 (1997); Revesz, supra note 26, at 1210-12; Zerbe, supra note 6, at 245.
39. Adler, supra note 6, at 157 (arguing that the division of authority in environmental law is inefficient as it fails to comport with an analytical framework that reserves issues of national scope to the federal government and issues of local effect to state governments); Butler & Macey, supra note 6, at 25; Revesz, supra note 26, at 1238-42 (arguing that the race-to-the-bottom rationale for federal regulation of intrastate environmental issues is unsupported and federal regulation in such contexts inefficient).
40. Engel, supra note 27, at 275.
41. Id.
42. See Revesz, supra note 26, at 1238-42. Applying a model developed by economists Wallace Oates and Robert Schwab, Revesz argues that regulators choose environmental standards and capital rates that maximize the utility of their residents. He assumes, among other things, that the number of participants in the market for industrial firms is sufficiently large that no single decision maker is able to influence the actions of any other decision maker. Id.
43. Engel, supra note 27, at 314-15, 356-59 (analogizing states to the prisoners in game theory's "prisoner's dilemma," and contending that one state's environmental choices are not immunized from the influence of other states and hence, left to their own devices, states may establish suboptimal environmental standards in an interstate regulatory race to the bottom).
44. See Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 HARV. L. REV. 553, 571 n.95 (2001) Gisting sources that discuss the powerful business lobby); see also Gerber & Teske, supra note 9, at 862-63 (observing that studies "definitely show that interest group pressure shapes state regulation," but interest group "influence may vary by state . . . as interest group power in particular industries . . . and interest group density generally . . . vary").
45. Esty, supra note 6, at 650-51; Stewart, supra note 24, at 1213.
46. Revesz, supra note 33, at 578. Indeed, recent assessments of lobbying at the state level suggest that "the stakes in state policy are high enough that they are now inundated with requests from interest groups to develop favorable public policies." TESKE, supra note 1, at 203. There are now "five registered state lobbyists for every state legislator" for a total of "37,000 registered lobbying organizations at the state level"; collectively, those organizations spent one billion dollars in 2000. Id.
47. Esty, supra note 6, at 652; see also Daniel C. Esty, Toward Optimal Environmental Governance, 74 N.Y.U. L. REV. 1495, 1554-56 (1999) [hereinafter Esty, Governance].
48. Esty, Governance, supra note 36, at 1555.
49. Id.
50. More recently, Esty seems to be leaning more toward a dynamic model that reflects the "diversity and complexity of the world" and "requires a flexible mix of competition and cooperation between government actors as well as between government and non-governmental actors, along both horizontal and vertical dimensions." Daniel C. Esty & Damien Geradin, Regulatory CoOpetition, 3 J. INT'L ECON. L. 235, 235 (2000).
51. Interestingly, although arguing that efficiency calls for standard setting by one or the other level of government, scholars within this school nonetheless recognize some of the many examples in which the level of government presumed to be efficient has failed in practice to live up to expectations. For instance, Richard Revesz has extensively criticized both the design and the implementation of the federal statutory provisions for reducing interstate air and water pollution spillovers. Richard L. Revesz, Federalism and Interstate Environmental Externalities, 144 U. PA. L. REV. 2341, 2342-47 (1996); see also Adler, supra note 6, at 162;
52. Rena I. Steinzor, EPA and Its Sisters at 30: Devolution, Revolution, or Reform?, 31 ENVTL. L. REP. 11,086, 11,092 (2001). Yet, rather than viewing these examples as a reason to question either the general assumption that each environmental problem can be correlated with an optimizing level of government or that their chosen level is the correct one, these scholars simply argue for tweaks to the existing allocation of authority. See Adler, supra note 6, at 143-45 (explaining that the existence of national public goods may, but does not necessarily, justify federal regulation); Revesz, supra, at 2410 (suggesting interstate spillovers be reduced through a federal scheme of marketable permits in environmental degradation).
53. See Chemerinsky, supra note 4, at 1313-16; Chemerinsky, Empowering States, supra note 15, at 1013-18.
54. See Schapiro, supra note 8, at 1411-17; Schapiro, Interactive Federalism, supra note 15, at 250-62.
55. Schapiro, Interactive Federalism, supra note 15, at 285-317.
56. See Jones, supra note 8, at 108-10.
57. Id. at 122.
58. Schapiro, Interactive Federalism, supra note 15, at 295 ("In the polyphonic conception, courts should apply a background presumption that state power and federal power can coexist.").
59. Id. at 290-92.
60. See United States v. Lopez, 514 U.S. 549, 576 (1995); New York v. United States, 505 U.S. 144, 168 (1992); Schapiro, Interactive Federalism, supra note 15, at 291.
61. Schapiro, Interactive Federalism, supra note 15, at 292-93 (arguing that preserving clear channels of political accountability between the states and the federal government is all but impossible in a complex commercial society like the United States).
62. See, e.g., id. at 248-49 (describing a dynamic model of federalism that is independent of the substantive legal issues).
63. See, e.g., William W. Buzbee, Brownfields, Environmental Federalism, and Institutional Determinism, 21 WM. & MARY ENVTL. L. & POL'Y REV. 1, 4446 (1997).
64. William W. Buzbee, Contextual Environmental Federalism, 14 N.Y.U. ENVTL. L.J. 108, 114, 115-16 (2005) ("[W]hen federal environmental action appears to be 'underkill' of what written laws and regulations have historically allowed or required, it creates opportunities for environmentally oriented citizen and state actors (such as state attorneys general) to supplement federal enforcement or challenge the legal adequacy of the newly relaxed regulatory environment.").
65. Buzbee, supra note 51, at 1-2.
66. Buzbee, supra note 52, at 125-26. Buzbee has also pointed out the accountability risk that comes with regulatory overlap: namely, the potential that it will appear that no one is in charge and hence regulatory inaction will result. See William W. Buzbee, Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89 IOWA L. REV. 1, 30-33 (2003) [hereinafter Buzbee, Regulatory Commons]. He nevertheless argues that regulatory overlap contains an "antidote" to this very problem by ensuring that those most interested in addressing a given environmental problem can assess what might be the appropriate level of government to address it. These interested parties hope that, in the long term, the association that will develop between a particular problem and a regulatory jurisdiction will erase the "ownership" problem that results from too many potential regulators. Buzbee, supra note 52, at 126.
67. For another analysis of the benefits of overlapping jurisdiction in the environmental field, see Kirsten H. Engel, Harnessing the Benefits of Dynamic Federalism in Environmental Law, 56 EMORY L.J. 159, 160-63 (2006).
68. Kirsten H. Engel & Scott R. Saleska, Subglobal Regulation of the Global Commons: The Case of Climate Change, 32 ECOLOGY L.Q. 183, 189 (2005).
69. Empirical evidence exists supporting this hypothesis from both the Reagan era and the current Bush administration, where political scientists have observed a marked shift to progressive policymaking at the state level. See, e.g., TESKE, supra note 1, at 16-17 (noting the push by "regulatory activists" to enact reforms at the state level relating to nutrition, the environment, and ATM charges when the federal government's enthusiasm for such reforms waned in the 1980s and again in the 2000s).
70. Engel & Saleska, supra note 55, at 253; see also Engel, supra note 54, at 162-63 (arguing that giving states the freedom to develop environmental policy will create a "regulatory dialogue" between state and federal government and improve environmental regulation).
71. Engel, supra note 54, at 161; see also Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 20 (2007) ("State laws . . . are an important influence on Congress's agenda.").
72. See Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 DUKE L.J. 795, 809 (2005) (asserting that institutional limits on jurisdiction lead to challenges, at both the state and federal level, to government efforts to formulate environmental policy);
73. see also J.B. RUHL ET AL., THE LAW AND POLICY OF ECOSYSTEM SERVICES 284-88 (2007) (advocating an "institutional structure" for ecosystem management that integrates authority at the state, regional, and local level);
74. Bradley C. Karkkainen, Collaborative Ecosystem Governance: Scale, Complexity, and Dynamism, 21 VA. ENVTL. L.J. 189, 193 (2002) (advocating the acceptance of a "collaborative ecosystem governance" model that "recognizes the need for integrated, holistic management of ecosystems as systems, and grapples with questions of scale and complexity in ecosystem management, emphasizing locally or regionally tailored solutions within broader structures of coordination and public accountability").
75. Freeman & Farber, supra note 59, at 797-98.
76. Id. at 798-99.
77. Id.
78. Id. at 836-37; see also id. at 799 ("[T]he goal of modularity is to let the solutions to environmental problems determine institutional arrangements as much as possible.").
79. See Denise Scheberle, The Evolving Matrix of Environmental Federalism and Intergovernmental Relationships, PUBLIUS, Winter 2005, at 69, 72 (noting that, under a cooperative federalism framework, "[b]y 2000, states ran about three-fourths of all environmental programs, up from 41 percent in 1993").
80. RUHL ET AL., supra note 59, at 282-83.
81. Scheberle, supra note 64, at 71 (describing cooperative federalism as a "partial-preemption approach" under which "the EPA or other federal agency would delegate day-to-day programmatic responsibilities back to the states with approved programs").
82. Id.
83. RUHL ET AL., supra note 59, at 283.
84. Joseph Zimmerman, National-State Relations: Cooperative Federalism in the Twentieth Century, PUBLIUS, Spring 2001, at 15, 24-25 (arguing that the partial preemption aspect of cooperative federalism "increase[es] its complexity and rais[es] accountability issues"); see RUHL ET AL., supra note 59, at 283 (noting that the complexity created by cooperative federalism can lead to "uncoordinated and ineffective" distributions of power).
85. RUHL ET AL., supra note 59, at 283; see also Michael S. Greve, Against Cooperative Federalism, 70 MISS. L.J. 557, 559 (2000) (calling cooperative federalism a "rotten idea").
86. Scheberle, supra note 64, at 71-73.
87. Id. at 72-73.
88. Stewart, supra note 24, at 1215-16.
89. See, e.g., Robert L. Glicksman, From Cooperative to Inoperative Federalism: The Perverse Mutation of Environmental Law and Policy, 41 WAKE FOREST L. REV. 719, 800-03 (2006) (arguing that cooperative federalism binds the hands of both the federal government and the states). Nevertheless, some scholars sympathetic to the dynamic framework cite cooperative federalism approvingly. See, e.g., Buzbee, supra note 52, at 122-26 (discussing the advantages of "regulatory overlap").
90. Other scholars have drawn on theories about complex adaptive systems. See generally J.B. Ruhl, The Fitness of Law: Using Complexity Theory to Describe the Evolution of Law and Society and Its Practical Meaning for Democracy, 49 VAND. L. REV. 1406, 1409-11 (1996) (attempting to explain how and why law "evolves"). As we will argue, however, the lessons we draw from adaptive systems and the policy recommendations we make differ substantially from this prior work.
91. Glenn Harlan Reynolds, Is Democracy Like Sex?, 48 VAND. L. REV. 1635, 1646 (1995) ("Just as the randomizing factor of sex creates a 'moving target' for parasites, preventing them from becoming too well adapted to their hosts, so the randomizing factor of democratic politics creates a 'moving target' for special interests, keeping their relationships with lawmakers from being too comfortable or mutually beneficial.").
92. See U.S. Environmental Protection Agency, Wetlands, http://www.epa.gov/owow/wetlands/types/pothole.html Gast visited Apr. 28, 2008).
93. See id. (describing the Upper Midwest as "one of the most important wetland regions in the world" and "home to more than 50 percent of North American migratory waterfowl, with many species dependent on the potholes for breeding and feeding").
94. See Lisa Heinzerling & Rena I. Steinzor, A Perfect Storm: Mercury and the Bush Administration, 34 ENVTL. L. REP. 10,297, 10,303-05 (2004) (discussing mercury contamination and noting that it is both a local and a global problem).
95. Id.
96. Id.
97. See Stephen R. Carpenter et al., Millennium Ecosystem Assessment: Research Needs, 314 SCIENCE 257, 257 (2006) ("Local processes sometimes spread to become important regionally or globally, but ecosystem services at more aggregated scales are seldom simple summations of the services at finer scales. . . . We need robust, manageable frameworks for analyzing ecosystem services at multiple scales."); Holling, supra note 13, at 7 ("Adaptive cycles in ecosystems occur in scales ranging from . . . centimeters and days to hundreds of kilometers and millennia.").
98. George Busenberg, Wildfire Management in the United States: The Evolution of a Policy Failure, 21 REV. POL'Y RES. 145, 146 (2004).
99. Id. at 147-48.
100. ROBERT PERCIVAL ET AL., ENVIRONMENTAL REGULATION: LAW, SCIENCE, & POLICY 230-33 (5th ed. 2005) (noting the challenges of risk assessment and the frequency with which regulators get it wrong).
101. Jesse McKinley & Kirk Johnson, On Fringe of Forests, Homes and Wildfires Meet, N.Y. TIMES, June 26, 2007, at A1.
102. TIFFANY WRIGHT ET AL., CTR. FOR WATERSHED PROT., DIRECT AND INDIRECT IMPACTS OF URBANIZATION ON WETLAND QUALITY, at i-ii (2006), http://www.cwp.org/wetlands/articles/WetlandsArticle1.pdf.
103. Holling, supra note 13, at 15 (arguing that globalization and dramatic wealth accumulation "could trigger a rare and major pulse of social transformation"); Jianguo Liu et al., Complexity of Coupled Human and Natural Systems, 317 SCIENCE 1513, 1516 (2007) ("As globalization intensifies, there are more interactions among even geographically distant systems and across scales." (citations omitted)).
104. PERCIVAL ET AL., supra note 85, at 34-38.
105. Karkkainen, supra note 59, at 200. Forest ecosystems, for example, are designed to adapt to unpredictable change and thus incorporate structural features that belie strategies premised solely on optimization. See also Levin, supra note 12, at 11 ("[T]he number of local optima in real situations may be enormous. . . . [E]volution is a historically constrained process, shaped in large parts by frozen accidents of times past.").
106. See RUHL ET AL., supra note 59, at 20-22 (discussing the difficulties of identifying well-delineated boundaries of ecosystems); see also Carpenter et al., supra note 82, at 257 (identifying difficulties in monitoring changes in ecosystems due to differences in scale); Holling, supra note 13, at 3, 7 (noting the ranges of ecosystem adaptation).
107. U.S. Environmental Protection Agency, supra note 77. This position should not be read as the stale platitude that everything is linked together in nature. That view is an overstatement, if not a mischaracterization, of how natural systems are interconnected. Our point is that individual components of natural systems are linked across a very broad range of scales, although, as one would expect, the larger the spatial scale, the fewer and weaker the connections.
108. See Esty, supra note 6, at 587 (noting "structural mismatches" related to inexact jurisdictional boundaries); Holling, supra note 13, at 15-17 (making the point that under the current conditions of significant social unrest and environmental disruption, "[t]he scale of the issues is such that they are beyond the reach of any one" institution or jurisdictional authority).
109. Stuart Kauffman & Simon Levin, Toward a General Theory of Adaptive Walks on Rugged Landscapes, 128 J. THEORETICAL BIOLOGY 11, 12-13 (1987) (observing that the adaptive landscape is a very rugged one, implying that so many peaks exist that global maximization is impossible, and as a result, noting that these systems are path-dependent and historically contingent).
110. Donald T. Hornstein, Complexity Theory, Adaptation, and Administrative Law, 54 DUKE L.J. 913, 942 (2005) (discussing the balance that must be struck between "exploration and exploitation" in the context of perpetually refining existing processes).
111. SIMON A. LEVIN, FRAGILE DOMINION: COMPLEXITY AND THE COMMONS 173 (1999) ("[R]esilience and resistance to change are two sides of the same coin. What is desirable in some systems (resilience) is the opponent of modernization in others . . . ."); Holling, supra note 13, at 14 ("[T]he longer the system is 'locked in,' the greater the vulnerability and the bigger and more dramatic its collapse will be.").
112. Kauffman & Levin, supra note 94, at 24-26.
113. Id.
114. See Sewall Wright, Evolution in Mendelian Populations, 16 GENETICS 97, 97-100 (1931) (explaining that many factors influence evolution, and consequently, evolution of new characteristics does not always follow from availability of higher-level traits).
115. Id. at 97-100, 102-04 (observing that maintenance of diversity preserves inferior types against selective extinction and, in doing so, safeguards the potential for genetic combinations that allow evolutionary jumps). In ecosystems, for example, genetic diversity within a species and maintenance of a diverse range of species provide a storehouse of genetic traits and species, some of which may be well adapted to unforeseeable changes in environmental conditions. See Kauffman & Levin, supra note 94, at 15 (pointing out that complex problems have an infinite set of potential answers).
116. LEVIN, supra note 96, at 18, 68-69 (observing that evolution works through "the continual generation and exploration of randomly generated innovations, and the reinforcement of some at the expense of others," but noting that the process is imperfect in part because of its nonlinearities).
117. JOHN H. HOLLAND, HIDDEN ORDER: HOW ADAPTATION BUILDS COMPLEXITY 29 (1995).
118. Id. at 27-31 (describing how the process of local disturbances and variability maintains diversity and ensures resilience).
119. Id. at 27.
120. Id. at 28-29.
121. LEVIN, supra note 96, at 88 ("The small local disturbances not only maintain the character of the system by maintaining the species that are early colonists but poor competitors; they also maintain the resiliency of the system, preserving the opportunistic species that thrive under the conditions accompanying the unpredictable but inevitable environmental changes that occur at broader spatial scales, such as massive windthrows or fire.").
122. Id. at 159.
123. Id. at 162-67.
124. Id. at 165-67 (describing the important role "keystones" play in an ecosystem).
125. Id. at 159.
126. Id. at 156 ("[E]cosystem structure and dynamics emerge from selection operating at lower levels, and[] feedbacks from higher levels are weak because of the individualistic distribution of species.").
127. Id. at 159.
128. Simon A. Levin & R.T. Paine, Disturbance, Patch Formation, and Community Structure, 71 PROC. NAT'L ACAD. SCI. 2744, 2744 (1974).
129. See, e.g., Stewart, supra note 24, at 1210-11 (noting the importance of decentralized decision making to environmental policy).
130. Id. at 1211.
131. Id. at 1210.
132. Id. at 1211.
133. Id. at 1213.
134. Revesz, supra note 33, at 559-63 (describing the central claim about public-choice theory as it applies to environmental federalism).
135. See, e.g., Stewart, supra note 24, at 1213.
136. See Reynolds, supra note 76, at 1642-43 (observing that the resilience of a political system derives in no small part from its ability to resist political parasites, such as special interest groups sucking resources off of the government in an unproductive manner). Even academics who challenge traditional public-choice theory acknowledge that "[i]nterest groups matter in shaping regulatory policy, and it is difficult to imagine an environment in which they would not have a strong degree of influence." TESKE, supra note 1, at 196.
137. E.g., Buzbee, supra note 51, at 45-46.
138. See supra note 9.
139. See Hills, supra note 58, at 17 ("State and local politicians . . . are natural policy entrepreneurs who can significantly influence what sorts of conditions are publicly recognized as problems.").
140. See Potoski, supra note 9, at 339.
141. See LEVIN, supra note 96, at 88 (explaining how fires can maintain the character of an ecosystem).
142. Such disturbances clearly occur at different times and to different degrees between jurisdictions.
143. Daniel A. Farber, Politics and Procedure in Environmental Law, 8 J.L. ECON. & ORG. 59, 67 (1992);
144. Robert Repetto, Introduction to PUNCTUATED EQUILIBRIUM AND THE DYNAMICS OF U.S. ENVIRONMENTAL POLICY 1, 1-2 (Robert Repetto ed., 2006).
145. Elliott et al., supra note 11, at 316-17.
146. See Micheline Maynard, Politics Forcing Detroit to Back New Fuel Rules, N.Y. TIMES, June 20, 2007, at A1. Climate change also has important local dimensions, as not all states are equally vulnerable to it and thus under equivalent pressures to adapt.
147. Reynolds, supra note 76, at 1646.
148. LEVIN, supra note 96, at 159.
149. Stewart, supra note 24, at 1210.
150. DOUGLAS J. KRIEGER, THE WILDERNESS SOCIETY, THE ECONOMIC VALUE OF FOREST ECOSYSTEM SERVICES: A REVIEW, at iii-iv (2001), available at http://www.wilderness.org/Library/Documents/upload/Economic- Value-of -Forest-Ecosystem-Services-A-Review.pdf.
151. See Schapiro, Interactive Federalism, supra note 15, at 291 (describing the difficulties in determining which government entity to hold accountable when federal and state laws govern the same issue).
152. Id. at 257.
153. Robert L. Glicksman & Richard E. Levy, A Collective Action Perspective on Ceiling Preemption by Federal Environmental Regulation: The Case of Global Climate Change, 102 NW. U. L. REV. (forthcoming 2008) (manuscript at 13, available at http://ssrn.com/abstract=1007021); Stewart, supra note 24, at 1211-16.
154. Gerber & Teske, supra note 9, at 870-71 ("[T]he federal government can 'force' states to adopt policy innovations by writing them into federal requirements. This strong federal presence may also facilitate policy diffusion through federal coordination of policy innovations."); Susan Welch & Kay Thompson, The Impact of Federal Incentives on State Policy Innovation, 24 AM. J. POL. 715, 716-17 (1980) (finding that policies with federal incentives attached to them diffuse more rapidly than policies that emerge entirely from the state level).
155. Schapiro, Interactive Federalism, supra note 15, at 267.
156. See, e.g., Buzbee, supra note 51, at 41-42 (discussing the case of brownfields regulation under CERCLA in which regulatory innovation started at the state level but was subsequently adopted and spread through EPA regulatory changes); Engel, supra note 27, at 170-72 (describing the transfer of vehicle emissions standards from California through the EPA to the country as a whole).
157. See Buzbee, supra note 52, at 45-46.
158. Buzbee, supra note 1, at 1599-1600; Engel, supra note 54, at 184-86.
159. Engel, supra note 54, at 184-86.
160. See Per G. Fredriksson & Noel Gaston, Environmental Governance in Federal Systems: The Effects of Capital Competition and Lobby Groups, 38 ECON. INQUIRY 501, 502 (2000) (discussing the impacts of lobbying in the European Union and observing that "the move to centralized regulation stimulated industry lobbying" and that "industry lobbying may be stronger at the federal level"); Hills, supra note 58, at 22-23 (commenting on a similar point about business interests' incentives to seek preemption legislation). Hills goes on to argue that [t]he task of the courts ought to be to create a default rule that will force Congress to squarely confront the question, even when members of Congress might be anxious to evade such a confrontation. A default rule against preemption places the onus on the interest groups most capable of promoting this debate - the pro-preemption groups. Id. at 26.
161. See Buzbee, supra note 1, at 1609-10.
162. Id. at 1610 ("[I]f there is one regulator, then all sides will seek to persuade or capture that regulator."); see also JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW 15-16 (1997) (explaining the dynamics of interest-group politics).
163. Stewart, supra note 24, at 1213.
164. Id. at 1219 (describing the "diseconomies of scale" that arise when an issue is elevated to the federal level).
165. LEVIN, supra note 96, at 203.
166. Id. ("[T]ight reward and punishment loops are essential for any adaptive change.").
167. Repetto, supra note 128, at 2.
168. Schapiro, Interactive Federalism, supra note 15, at 285.
169. Engel & Saleska, supra note 55, at 191-93; Karkkainen, supra note 59, at 200-01.
170. Engel, supra note 54, at 161.
171. Engel & Saleska, supra note 55, at 191-92.
172. Engel, supra note 54, at 166.
173. HOLLAND, supra note 102, at 29.
174. Engel & Saleska, supra note 55, at 191-93.
175. Schapiro, Interactive Federalism, supra note 15, at 267.
176. See, e.g., United States v. Lopez, 514 U.S. 549, 576 (1995) (Kennedy, J., concurring) ("The theory that two governments accord more liberty than one requires for its realization two distinct and discernable lines of political accountability . . . ."); New York v. United States, 505 U.S. 144, 168 (1992) ("[W]here the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished."); Erwin Chemerinsky, In Defense of Judicial Review: A Reply to Professor Kramer, 92 CAL. L. REV. 1013, 1018-22 (2004) (discussing the importance of judicial finality); Oates & Portney, supra note 17, at 345 (discussing the importance of uniformity in promoting the free flow of goods).
177. Arrandale, supra note 9, at 25 (describing the many complaints of mayors and stakeholders about the rigidity of EPA regulations).
178. Some legal scholars have argued that lawyers need to place less weight on accountability as a necessary aspect of environmental regulatory systems, and to recognize that nontraditional legal theories and approaches will be essential to address complex environmental problems. Karkkainen, supra note 59, at 225-26.
179. See, e.g., Buzbee, Regulatory Commons, supra note 54, at 32-33; Elliott et al., supra note 11, at 327 (discussing the importance of the passage of federal environmental laws to political entrepreneurs and their jockeying to obtain credit for passage of the laws).
180. Scheberle, supra note 64, at 77 (commenting on the "scope, intensity, and very public nature" of state environmental lawsuits, particularly with regard to climate change).
181. Esty, Governance, supra note 36, at 1554-55.
182. See supra text accompanying notes 41-45.
183. Schapiro, Interactive Federalism, supra note 15, at 285.
184. Id.
185. Id.
186. RUHL ET AL., supra note 59, at 282-83.
187. Id. at 283.
188. See Arrandale, supra note 9, at 22 (providing a real-world example of how the EPA's strict regulations resulted in states being unable to address local problems with innovative solutions).
189. RUHL ET AL., supra note 59, at 282-83.
190. See supra text accompanying notes 144-51.
191. See supra text accompanying note 140.
192. See supra text accompanying notes 138-40.
193. Engel, supra note 54, at 184-86.
194. See, e.g., supra text accompanying notes 20-22.
195. Ruhl, supra note 75, at 1475, 1477. Professor Ruhl's approach is premised on Stuart Kauffman's criticality theory, which has important implications for the basic architecture of successful adaptive systems. According to Kauffman's theory, adaptability entails "less hierarchical, flatter, and more decentralized power structures," and it places a much higher premium on the importance (and regularity) of dramatic change. Id. at 1418-19.
196. RUHL ET AL., supra note 59, at 281; see Freeman & Farber, supra note 59, at 798; Karkkainen, supra note 59, at 204.
197. RUHL ET AL., supra note 59, at 284; see Freeman & Farber, supra note 59, at 798-800; Karkkainen, supra note 59, at 201.
198. Hills, supra note 58, at 2.
199. Failure to act at a particular level of government may be the product of information gaps, the demands of other priorities, or interest-group capture. Whatever the reason, we agree with Erwin Chemerinsky, who argues that "[a] key advantage of having multiple levels of government is the availability of alternative actors to solve important problems. If the federal government fails to act, state and local government action is still possible." Erwin Chemerinsky, Federalism Not as Limits, but as Empowerment, 45 U. KAN. L. REV. 1219, 1234 (1997).
200. Our approach is consistent with calls by other scholars that "[t]o minimize capture, an overarching set of reforms should attempt to bring more players into the regulatory process and provide the important institutions with more resources to develop the capacity for independent analysis and implementation." TESKE, supra note 1, at 201.
201. The rapid growth in lobbying expenditures at the state level over the past few years suggests that interest groups are expanding their focus beyond the federal government. Sarah Laskow, Ctr. for Pub. Integrity, State Lobbying Becomes Billion-Dollar Business (Dec. 20, 2006), http://www.publicintegrity.org/ hiredguns/report.aspx?aid=835.
202. Cf. Hills, supra note 58, at 16-21 (describing how state laws can influence and determine congressional agendas).
203. See TESKE, supra note 1, at 14-15.
204. See Chemerinsky, supra note 4, at 1314-15.
205. Hills, supra note 58, at 27-28. Here we define a regulatory ceiling as setting a maximum level of regulation that is permissible, such as the strictest standard for a given water or air pollutant. See, e.g., Buzbee, supra note 1, at 1558 (defining regulatory ceiling as "the maximum level of regulation or protection that any entity could issue").
206. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 237 (1947); see also Richard H. Fallon, Jr., The "Conservative" Paths of the Rehnquist Court's Federalism Decisions, 69 U. CHI. L. REV. 429, 462-63 (2002) (citing the Court's failure, in recent years, to promote a presumption against preemption despite the preemption doctrine's mandate);
207. Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 SUP. CT. REV. 343, 364-68 (highlighting recent implied preemption cases that run counter to the "clear statement" rule).
208. Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1425-27 (2001);
209. see also CHRISTOPHER R. DRAHOZAL, THE SUPREMACY CLAUSE: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 115 (2004);
210. Caleb Nelson, Preemption, 86 VA. L. REV. 225, 230 (2000).
211. See, e.g., Ann E. Carlson, Federalism, Preemption, and Greenhouse Gas Emissions, 37 U.C. DAVIS L. REV. 281, 305-07 (2003); Chemerinsky, supra note 4, at 1330-32;
212. S. Candice Hoke, Preemption Pathologies and Civic Republican Values, 71 B.U. L. REV. 685, 760-63 (1991).
213. In other words, consistent with the position urged by Professor Chemerinsky, there would only be two circumstances in which state laws could be preempted: (1) where preemption is express in a statute, and (2) when federal law and state law are mutually exclusive. Chemerinsky, supra note 4, at 1329-30.
214. See, e.g., David B. Spence & Paula Murray, The Law, Economics, and Politics of Federal Preemption Jurisprudence: A Quantitative Analysis, 87 CAL. L. REV. 1125, 1159 (1999).
215. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42-44 (1983); Susan Bartlett Foote, Administrative Preemption: An Experiment in Regulatory Federalism, 70 VA. L. REV. 1429, 1432-33 (1984).
216. 2 standard for motor vehicles would infringe on NHTSA's discretion to establish CAFE standards consistent with Congresses] guidance and threaten the goals that Congress directed NHTSA to achieve.").
217. The federal government bases this argument on the assertion that currently the only way to satisfy the California regulation is by improving vehicle fuel economy. Id.
218. See supra text accompanying notes 144-47.
219. Within the category of "federal ceilings" we would include federal standards that impose a uniform standard. While these standards preempt less stringent standards, most importantly for our purposes, they also preempt more stringent state standards. See, e.g., Buzbee, supra note 1, at 1568-72; Engel, supra note 27, at 291; Glicksman & Levy, supra note 137, at 28-29.
220. Two recent commentators have argued for "asymmetric" treatment of floor and ceiling standards on somewhat different grounds. Professor Buzbee argues that given the high likelihood of agencies failing to regulate and the de facto complete absence of flexible "regulatory ceilings" (all existing laws have fixed, unitary standards that states cannot deviate from), regulatory ceilings should be strongly disfavored. Buzbee, supra note 1, at 1558-59. Professors Glicksman and Levy advance an elegant argument that is based on evaluating the impacts of five potential collective action problems (negative externalities, resource pooling, race-to-the-bottom pressures, the need for regulatory uniformity, and so-called not-in-my-backyard, or NIMBY, distortions). Glicksman & Levy, supra note 137, at 13-22. They conclude that ceiling preemption is only warranted where the need for regulatory uniformity is high and strongly supported or where NIMBYism is a dominant factor. Id. at 28-29.
221. Esty, supra note 6, at 597-98; Farber, supra note 128, at 61.
222. See, e.g., Farber, supra note 128, at 61.
223. Id.
224. Buzbee, supra note 1, at 1590-92.
225. Id.
226. Revesz, supra note 33, at 571 (determining that industry-dominated accounts are "more plausible" public-choice accounts of environmental regulation).
227. Id. at 571-74.
228. 2 is regulated.
229. See, e.g., Jad Mouawad, BP to Invest $500 Million on Biofuels at a Research Center, N.Y. TIMES, June 14, 2006, at C9.
230. Hills, supra note 58, at 26.
231. See Glicksman & Levy, supra note 137, at 13-14.
232. 42 U.S.C. § 7521 (2000). These standards impose nationally uniform standards except in California, which has adopted a more stringent standard, or in a state that has adopted California's standard. See infra Part III.A.3.
233. 7 U.S.C. § 136v (2000) (requiring that labels for pesticide use and application be uniform under the Federal Insecticide, Fungicide and Rodenticide Act).
234. See, e.g., Cooley v. Bd. of Wardens, 53 U.S. 299, 319 (1851) ("Whatever subjects of [the commerce] power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress."); Buzbee, supra note 1, at 1610 ("[O]verlapping regulation can lead to confusion, high compliance costs, and a drag on otherwise beneficial activities."); Engel, supra note 27, at 369.
235. Clean Air Act §202, 42 U.S.C. § 7521.
236. Id.
237. 42 U.S.C. § 7453 (2000).
238. Engel, supra note 54, at 170-72 (describing the impact of California regulations on the Clean Air Act).
239. Clean Air Act § 177, 42 U.S.C § 7507 (2000).
240. Engel, supra note 54, at 170.
241. Drawing on a similar evolutionary model, Professor Elliott and his coauthors argue that "environmental law, like other statutory and bureaucratic law, grows, like a living thing, in response to forces internal and external to the legal system. Sometimes its growth is unrestrained, like a cancer. Under other conditions, legislation cannot survive at all." Elliott et al., supra note 11, at 314; see also Repetto, supra note 128, at 3-4 (discussing the uneven development of environmental policy).
242. Bradley C. Karkkainen, Panarchy and Adaptive Change: Around the Loop and Back Again, 7 MINN. J.L. SCI. & TECH. 59, 66-67 (2005). Professor Buzbee describes these discontinuities in obliquely economic rather than political terms, but the basic insight is the same: Despite contextual factors that lead to the waxing and waning of federal and state activism, environmental protection efforts will always be largely dependent on the more consistent trends and incentives attributable to environmental federalism structures themselves. Some of these trends and incentives are not easily categorized as benefits or harms, but environmental federalism's contemporary structures that provide for regulatory overlap and interaction do create some clear benefits, with some associated costs. Historically contingent factors can, of course, trump these more consistent structurally created propensities, but they are nevertheless important factors to consider in assessing how environmental federalism operates. Buzbee, supra note 52, at 120-21.
243. Karkkainen, supra note 221, at 66-67.
244. Id.; Ruhl, supra note 75, at 1428, 1447 n.164, 1460-62 (describing the wave of legislation in the 1970s as a republican moment or point of punctuated evolution).
245. Gary C. Bryner, The National Energy Policy: Assessing Energy Policy Choices, 73 U. COLO. L. REV. 341, 395-400 (2002) (examining how the current "energy crisis" has been used to open up public lands to aggressive resource extraction, often at the expense of environmental laws and protection);
246. Sharon Buccino, NEPA Under Assault: Congressional and Administrative Proposals Would Weaken Environmental Review and Public Participation, 12 N.Y.U. ENVTL. L.J. 50 (2003) (describing how the Bush administration has systematically sought to circumvent the procedural requirements of the National Environmental Policy Act); Glicksman, supra note 74, 768 (describing the dilution of the Endangered Species Act as applied to the testing of military weapons);
247. Hank C. Jenkins-Smith et al., Explaining Change in Policy Subsystems: Analysis of Coalition Stability and Defection over Time, 35 J. AM. POL. SCI. 851, 875-76 (describing how exogenous events like the 1970s energy crisis led to a relaxation of federal government regulation of oil and gas leasing on the outer continental shelf).
248. Elliott et al., supra note 11, at 314 (describing the evolution of legislation as sometimes growing "unrestrained, like a cancer").
249. Ruhl, supra note 75, at 1460-62.
250. See TESKE, supra note 1, at 11-12; Chemerinsky, supra note 4, at 1314-15.
251. Pub. L. No. 107-56, 115 Stat. 272 (2001) (codified as amended in scattered sections of 8, 12, 15, 18, 20, 21, 31, 42, 47, 49, and 50 U.S.C).
252. Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codified as amended in scattered sections of 15 and 28 U.S.C).
253. See Glicksman & Levy, supra note 137, at 11-22 (describing collective action problems found in state-level action and the ability of federal regulation to overcome these problems).
254. See Karkkainen, supra note 221, at 66-67.
255. See BARRY RABE, PEW CTR. ON GLOBAL CLIMATE CHANGE, GREENHOUSE AND STATEHOUSE: THE EVOLVING STATE GOVERNMENT ROLE IN CLIMATE CHANGE (2002), available at http://www.pewclimate.org/docUploads/states_greenhouse.pdf;
256. Linda Adams, California Leading the Fight Against Global Warming, ECOSTATES, Summer 2006, 14, 14-16;
257. Kirsten H. Engel, Mitigating Global Climate Change in the United States: A Regional Approach, 14 N.Y.U. ENVTL. L.J. 54, 60-61 (2005); Rabe, supra note 21, at 423.
258. See Buzbee, supra note 51, at 2-3.
259. See, e.g., Peter Baker & Steven Mufson, Bush's Climate Remarks Weighed for Policy Shift, WASH. POST, Jan. 27, 2007, at A1;
260. James Kanter & Andrew Revkin, Politics Shift as Planet Heats Up, INT'L HERALD TRIB. (New York), Apr. 7-8, 2007, at A1;
261. Micheline Maynard, Turnabout on Fuel Standards, N.Y. TIMES, Dec. 7, 2007, at C1.
262. Buzbee, supra note 51, at 1.
263. 42 U.S.C. § 9611 (2000).
264. See Buzbee, supra note 51, at 53.
265. Id. at 40-42.
266. See supra note 232.
267. See, e.g., Engel, supra note 232, at 54-55; Glicksman, supra note 74, at 781-86.
268. See Glicksman, supra note 74, at 779-86.
269. Buzbee, supra note 51, at 3-5.
270. Id. at 5.
271. Id. at 6 (noting that "[environmental liabilities undoubtedly contribute to Brownfields abandonment," but cautioning that such sites "are the product of many interrelated phenomena, many of which are unrelated to environmental laws."). Moreover, while brownfields may appear to be solely local problems, they are occasionally a source of interstate pollution, collectively implicating interstate hazardous waste management and influencing interstate competition for business. Id. at 24.
272. Id. at 13-16.
273. Id. at 12-13.
274. Id. at 26.
275. See id. at 15-16.
276. The one exception to this was a 1995 EPA regulatory amendment that exempted lenders and several other categories of potentially responsible parties from Superfund liability. This was classic public-choice lobbying by a group of special interests dominated by investors and banks. Interestingly, the amendment was invalidated but was then revived and passed as a 1996 appropriations rider. Id. at 14.
277. Id. at 41.
278. Id. at 55. Buzbee argues that it was the backdrop of strict federal liability that led business interests to seek state measures that would limit uncertainty about liability. Id. at 53.
279. Id. at 66-67.
280. DANIEL A. FARBER ET AL., CASES AND MATERIALS ON ENVIRONMENTAL LAW 47 (2006) ("Perhaps the most striking example of a commons problem is climate change, since everyone on the planet has a stake and nearly everyone's activities contribute to the problem.").
281. See supra note 6 and accompanying text.
282. Esty, Governance, supra note 36, at 1555 ("Falling back to nationalscale intervention . . . invites free riding, holdouts, and inefficient spending of limited resources - and thus structural regulatory failure. At least from a theoretical viewpoint, inherently global problems demand concerted worldwide action."); Robert Stavins, Policy Instruments for Climate Change: How Can National Governments Address a Global Problem?, 1997 U. CHI. LEGAL F. 293, 323-24 ("On the domestic level, even the most cost-effective greenhouse policy instrument will be desirable only if the national target it seeks to achieve is part of an accepted set of international mandates. Because unilateral action will invariably be highly inefficient, any domestic program requires an effective international agreement, if not a set of international greenhouse policy instruments.").
283. CAL. HEALTH & SAFETY CODE § 38550 (West 2006) (seeking to reduce emissions of greenhouse gases generated in California by twenty-five percent by the year 2020 in order to bring California's total emissions down to 1990 levels).
284. Id. § 43018.5.
285. See Regional Greenhouse Gas Initiative, Home Page, http://www.rggi.org/index.htm Gast visited Apr. 28, 2008).
286. Engel, supra note 232, at 55-57 (noting that state action on climate change has received extensive media coverage).
287. Carlson, supra note 192, at 314-15 (observing that concentrating environmental innovation in a given state or states has the potential to take advantage of economies of scale and network effects that are critical to technological innovation, such as those found in Silicon Valley).
288. Schapiro, Interactive Federalism, supra note 15, at 267 (noting the population and economic competition among states).
289. Engel, supra note 232, at 57 (describing the movement of policy from the state to the federal level as the "domino effect").
290. For updates on state-level climate legislation, see Pew Center on Global Climate Change, http://www.pewclimate.org/what_s_being_done/in_the_states Gast visited Apr. 28, 2008).
291. Indeed, the economic benefits of a renewable portfolio standard are often advanced as a rationale for maintaining or enhancing such mandates. See Barry G. Rabe & Philip A. Mundo, Business Influence in State-Level Environmental Policy, in BUSINESS AND ENVIRONMENTAL POLICY 265 GVtichael Kraft & Sheldon Kamieniecki eds., 2007).
292. See, e.g., NAT'L RENEWABLE ENERGY LAB., DOLLARS FROM SENSE: THE ECONOMIC BENEFITS OF RENEWABLE ENERGY 1 (1997), available at http://www.nrel.gov/docs/legosti/fy97/20505.pdf.
293. See id. at 2-3; Carlson, supra note 192, at 314-15.
294. See generally Kirsten Engel, State and Local Climate Change Initiatives: What Is Motivating State and Local Governments to Address a Global Problem and What Does This Say About Federalism and Environmental Law?, 38 URB. LAW. 1015 (2006) (discussing the unusual federal-state role reversal in formulating aggressive strategies to combat climate change).
295. Nivola, supra note 16, at 50 ("More preemptions were piled on after 1970 than in the entire preceding history of the Republic."); Rabe, supra note 21, at 417-20 (describing the Bush administration's extreme centralization of environmental policymaking in the federal government).
296. Chemerinsky, supra note 4, at 1314-15.