Copyright (c) 1996 Michigan Law Review
Michigan Law Review
ARTICLE: REVITALIZING ENVIRONMENTAL FEDERALISM
95 Mich. L. Rev. 570
Daniel C. Esty *
Politicians from Speaker Newt Gingrich to President Bill Clinton, cheered on by academics such as Richard Revesz, are eagerly seeking to return authority over environmental regulation to the states. 1 In the European Union, localist opponents of environmental decisionmaking in Brussels rally under the banner of "subsidiarity." 2 And in debates over international trade liberalization, demands abound for the protection of "national sovereignty" 3 in environmental regulation. All of these efforts presume that a decentralized approach to environmental policy will yield better results than more centralized programs. This presumption is misguided.
While the character of some environmental concerns warrants a preference for local control, a sweeping push for decentralized regula- tion cannot be justified. Not only are some problems better dealt with on a national (or international) basis, but each environmental issue also presents a set of subproblems and diverse regulatory activities, some of which are best undertaken centrally. While the current decentralization rage represents thinking that has come full circle in the past thirty years, 4 this article urges not another 180-degree turn but rather a break with unidirectional conclusions about the proper governmental level for environmental policymaking. In trying to stabilize the "environmental federalism" debate, 5 I argue that what is required is a multitier regulatory structure that tracks the complexity and diversity of environmental problems.
Part I reviews how environmental protection efforts can go awry. 6 It makes clear that under the environmental rubric falls a diverse set of public health and ...
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