ELI Primary Menu

Skip to main content

The Changing Landscape of Federalism in Environmental Law


January 21, 2015

An ELI Public Seminar

The notion of “dual federalism” has shaped much of the environmental law and land use policy in the United States. The system recognizes unique local needs and impacts of environmental regulation by having states take the lead on implementation and enforcement of the laws for which the federal government sets a nationwide floor. As modern environmental law enters its fifth decade, many states and federal politicians are challenging traditional notions of dual federalism as outdated, with the federal government exercising too much authority.

Some states see federal agency action as overreaching or imposing unnecessarily tough regulations. Many states have been highly vocal and litigious in condemning federal proposals to delineate jurisdiction over water and to tackle greenhouse gas emissions as unprecedented expansion of federal power. Utah recently enacted the Transfer of Public Lands Act which set the end of 2014 as the deadline for the federal government to transfer all land it owns within Utah’s borders back to the state. On the other end of the scale, states such as Massachusetts and California have established regulatory regimes that go well beyond federal requirements and have pushed federal regulators to be more active in environmental matters.

Our panel of scholars, environmental advocates and industry representatives examined the current manifestation of environmental federalism and discussed whether traditional notions of dual federalism are outdated, how the current controversies affect implementation of environmental laws, and the practical effects of these political controversies. Participants learned about attempts of various states to circumvent federal agencies, and what the coming changes might mean for the relationship between the federal government and the states.

Bruce Myers, Senior Attorney, Environmental Law Institute (moderator)
Jonathan H. Adler, Professor & Director of the Center for Business Law & Regulation, Case Western Reserve University
Jamison E. Colburn, Joseph H. Goldstein Faculty Scholar & Professor of Law, Penn State Law School
Vickie Patton, General Counsel, Environmental Defense Fund
Lynn Scarlett, Managing Director of Public Policy, The Nature Conservancy

If you are an ELI member and are logged onto the Members site, you will see links below to available materials/recordings from the session.If you are not an ELI member but would like to have access to archived sessions like these, please see the bottom of this page for a link on how to join.