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Federalism as a Zero-Sum Game?

Monday, September 9, 2019

In recent years, “competitive federalism” between U.S. states and the federal government has spread to encompass environmental regulation. After EPA issued the Clean Power Plan in 2015, more than one-half of the states filed lawsuits alleging that EPA’s plan encroached upon state authority to determine energy policy. Between 2009 and 2017, Texas alone sued the Obama Administration at least 48 times, many of those suits over EPA action regarding air and water quality standards. While the pollution control laws passed in the 1970s were founded upon “cooperative federalism,” competitive federalism has resulted in a zero-sum rhetoric that pits environmental protection against economic growth.

In this month’s featured ELR article, Competitive Federalism: Environmental Governance as a Zero-Sum Game, Prof. Shannon Roesler of the Oklahoma City University School of Law evaluates the causes of the recent turn to competitive federalism in the context of anti-pollution regulation. Her article, adapted from the new ELI Press book Beyond Zero-Sum Environmentalism, argues that despite rhetoric fueled by state federalism, politics, and economics, there is evidence that people do not view environmental protection and economic well-being in zero-sum terms. Moreover, Roesler challenges the rhetoric used among public officials, arguing that it does not align with public interest or values.

Contrary to arguments that state sovereignty is the leading driver of competitive federalism, Roesler maintains that challenges to decisions like the Clean Power Plan or the WOTUS Rule actually stem from something other than constitutional or federalism principles. She observes that states are motivated to challenge federal rules if they are imposing burdens on state institutions that are costly enough to justify fighting them; further, state attorneys general may be more likely to pursue litigation if they will benefit personally or politically. Roesler thus contends that recent environmental governance has been influenced by concentrated, well-financed, short-term interests.

Zero-sum rhetoric on environmental protection does not only affect cooperation between states and the federal government, it also generates friction among states. Under the current Administration, California has been challenged by attorneys general from states with fossil-fuel industry ties, for example with challenges over rules that require insurance companies to disclose their investments in fossil fuels. Roesler concludes that competitive federalism and the zero-sum game ultimately are about antiregulatory strategy, and result in a weakened ability of democratic institutions to respond to the needs of all citizens.

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