William & Mary Environmental Law and Policy Review


Cale Jaffe


Public policy advocates of all stripes—litigators, politicians, or newspaper columnists—invoke principles of federalism when they are imploring Congress to respect limits imposed by Article I, and when they are insisting that a state legislature accede to the supremacy of a duly enacted national law, invoking Article VI. Yet historically, application of the term, “federalism,” at least in the context of environmental law, has been driven far more by pragmatic considerations than constitutional ones.

This pragmatic approach should not be surprising because, at its core, federalism simply asks what is the right level of government to solve a given problem. After an environmental problem has been discovered—a fish kill or noxious smell emanating from a nearby river, for example—our thoughts immediately turn to how this problem can be solved. Figuring out how we get to “clean,” then requires us to consider who will be in charge of making decisions throughout the clean-up process. Who decides which actors are responsible for contamination from a toxic waste landfill that has leached into that nearby river? Who decides who pays for the clean-up? Who decides when the clean-up is complete?

This critical question—who decides—is central to debates on environmental federalism. In the example of toxic waste spilled into a river, federalism doctrines will consider the roles of the local government that zoned for the landfill, the state government that issued a permit for the landfill, and the federal government that established regulations affecting toxic waste management from cradle to grave.

The purpose of this Article, therefore, is to document how debates over environmental federalism have indeed been driven far more by pragmatic factors (like forum shopping by litigants) than by constitutional considerations (like concern for the limits of Congress’s enumerated powers). Part I briefly pays its respects to the historical, constitutional underpinnings of federalism. Parts II, III, and IV then give an overview of environmental federalism in practice, focusing on federal land management in the Western United States (Part II), the history of air pollution regulation (Part III), and the current debate over climate policy (Part IV). Building off of the study of these experiences, Part V then culminates with an analysis of federalism as forum shopping—i.e., driven by the pragmatic concerns of stakeholders as opposed to any commitment to a particular constitutional philosophy or states’ rights.