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(Concluding Chapter, Edward Elgar, 2016) Professor Erin Ryan Florida

1 FEDERALISM AND THE TUG OF WAR WITHIN (Oxford Univ. Press, 2012) THE LAW AND POLICY OF ENVIRONMENTAL FEDERALISM (Concluding Chapter, Edward Elgar, 2016) Professor Erin Ryan Florida State University, College of Law : Fulbright Professor of Law Zhongguo Haiyang Daxue, China

2 Introduction to the American federal system The foundations and mechanics of U.S. federalism Advantages and disadvantages of federalism Environmenta l la w a t the e picente r of controve rs y Environmental federalism conflicts are especially acute Nature of environmental problems; nature of federalism How has Envtl. governance responded structurally? Asymmetrical allocation of authority along axes of scale Feds: goals & standards; state: design & implementation

3 Divides sovereign authority: state & national Which decisions should be made centrally, locally? Enumerated federal powers Open ended: Commerce power, spending power Specific: Postal service, voting rights... Delegated and reserved state powers Delegates re s ponsibility for ma naging elections 10 th Amendment: reserves police powe r

4 As a re s ult, s ta te a nd fe dera l re gula tory jurisdiction is both separated & overlapping ( 管辖权重叠 ): Managed by the Supremacy Clause (art. VI) ( 至高权力条款 ) But still questions: Boundary line? Concurrent?

5 Litigation over Gray Area Governance Clean Power Plan, Clean Water Rule, Health Care He s ita nt P olicymaking in the Gra y Are a Climate governance, financial service regulation Abdication 放弃权力 in the Gray Area Radioactive waste, Hurricane Katrina, Flint?

6 Why bother?

7 Checks & balances btw local & national authority Protect against govt. overreaching or abdication Accountability & tra nspare ncy in governance Enable meaningful democratic participation Local dive rs ity, innovation, and competition Create space for the great laboratory of ideas National authority for s pillove rs, colle ctive a ction Vindicate core constitutional promises Inte rjuris dictional s ynergy( 管辖权的协同效应 ) re: capacity T l diff t parts of interjurisdictional problems

Many of the Supreme Court s most contentious federalism cases are environmental cases: New York v. United States Hodel v. VA Surface Mining & Reclamation Assn.

8 Many of the Supreme Court s most contentious federalism cases are environmental cases: New York v. United States Hodel v. VA Surface Mining & Reclamation Assn. Many of the Supreme Court s most contentious environmental cases are federalism cases: Rapanos & Solid Waste Agency of N. Cooke County EPA v EME Homer City Generation

9 Environmental law is prone to such extreme federalism controversy because it allocates power in regulatory contexts where state and federal claims to authority are simultaneously at their strongest.

Often match the need to regulate the of a specific parcel of land harmful use with the need to regulate the boundary-crossing harms associated with that use Hallowed

10 Often match the need to regulate the of a specific parcel of land harmful use with the need to regulate the boundary-crossing harms associated with that use Hallowed understanding that governing land use is among the most sacred of local prerogatives while re gula ting harmful e xte rnalitie s is a mong the original predicates of national authority.

11 Criminal law? Health law? Education law? Family law?

13 Widespread consensus on what constitutes health, theft, or math; states differ at margins Envtl. mgmt. diffe rs ra dically betwe e n (a nd within!) states, b/c land is so locally unique Managing water pollution in the deserts of Arizona, the plains of Iowa, or tropical Florida require wholly different sets of expertise

14 Contours of the land, elevation, precipitation S e a s onal we a ther patte rns, pre va iling winds Watershed, soil quality, habitat Population density, zoning laws Cultural uses, local economies Where the local industry is opera ting What the major stressors are

15 Answers to question of how best to re gula te wa te r pollution can be wildly different in each context.....and getting them wrong can be very costly to communities.

16 Bad decisions without the benefit of local expertise can portend serious envtl., cultural, and economic harm if things go wrong Damage to soil, water, and other local resources can create devastating consequences for entire communities But if one community fa ils to pre ve nt s pillove r harms to another, the stakes are equally high!

18 Not as a contest between state & federal reach Nor between judicial and legislative interpretive supremacy Nor between original intent and living constitutionalism Federa lis m is a strategy for good governance, based on a set of clear values.

19 Checks & Balances between L & N Authority Protect against govt. overreaching or abdication Accounta bility & Tra nspare ncy in Gove rnance Enable me a ningful democra tic participation Local Dive rs ity, Innovation, and Competition Create space for the great la bora tory of idea s National authority for s pillove rs, colle ctive a ction Vindicate core constitutional promises Interjurisdictional Synergy between L&N Capacity T l diff t parts of interjurisdictional problems

Constitution mandates but incompletely describes our system of dual sovereignty Requires exogenous ( 外生的 ) theory of f dlsm to fill in the bla nks when

22 Constitution mandates but incompletely describes our system of dual sovereignty Requires exogenous ( 外生的 ) theory of f dlsm to fill in the bla nks when vague directives are applied to actual cases and controversies Res ult: va cilla ting ( 举棋不定的 ) jurisprudence as S Ct experiments w/different approaches

23 Dual Federalism (19 th Century; New Fedlsm. ) Cooperative Federalism (Post New Deal era) Empowerment Federalism (Chemerinsky) Polyphonic (Schapiro) Balanced (Ryan)

Discovery: substantial amount of federalismsensitive

24 Uncertainty about how to share and divide regulatory authority in contexts of overlap One Response: Negotiation Discovery: substantial amount of federalismsensitive governance is jointly constructed Especially in realm of Environmental Law

25 The Mythology of Zero-Sum Federa lis m Zero Sum : 零和博弈游戏 ( 也称非合作博弈, 参与此种博弈的各方, 一方有收益另一方必然有损失, 各方的收益和损失相加永远是零 ) Federa lis m in pra ctice vs. fe dera lis m in theory Hope for moving beyond rhetorical paralysis

穨6街舞對抗中正紀念堂_林伯勳張金鶚_.PDF

穨6街舞對抗中正紀念堂_林伯勳張金鶚_.PDF ( ) 115 115140 Journal of City and Planning(2002) Vol.29, No.1, pp.115140 90 10 26 91 05 20 2 3 --- ( ) 1. 2. mag.ryan@msa.hinet.net 3. jachang@nccu.edu.tw 1018-1067/02 2002 Chinese Institute of Urban