Will environmentalists discover federalism under Trump?

One of the possible silver linings of the incoming administration is that environmentalists may have to discover federalism. For decades, environmentalists have been distrustful of states and opposed to state-based experimentation in environmental protection. On the one hand, this is understandable. Environmentalists have generally been able to get their way at the federal level.

On the other hand, foregoing state experimentation has likely prevented us from discovering more successful and more efficient methods of protecting the environment. We occasionally see what state experimentation can accomplish. Recently, the U.S. Fish and Wildlife Service has encouraged states to develop their own conservation programs to avoid listing species, where the listing would have severe economic effects. The early results are promising. For several species, states have managed, through voluntary participation by property owners, to conserve huge swaths of habitat and raise significant funds for proactive conservation and recovery programs.

In the wake of the election, environmentalists are beginning to talk about turning to the states as partners. That’s a welcome sign, both as a policy matter and a constitutional one. This post will focus on the constitutional issue.

Our founding fathers wisely chose to divide power between the federal and state governments.The federal government has few, well-defined powers, which are specifically enumerated in the Constitution. Protecting the environment isn’t one of them. So, when the federal government imposes environmental policy, it does so by stretching one of its powers beyond recognition, usually the Commerce Clause.

State powers are not so limited. This is because states have several advantages over the federal government when it comes to setting policies that significantly effect us. Federalism—the preservation of the states’ role—ensures that government is

sensitive to the diverse needs of a heterogenous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry.

Competition among the states ensures that state policy must be attune to costs. State residents can “vote with their feet” by fleeing states with bad policies in favor of states with better policies. This system tends to favor libertarian or small government solutions.

Federal environmental policy can impose enormous costs—most of which are hidden from view—for little gain. But because states must compete for voters, taxpayers, and industry, they have a strong incentive to design environmental policies that are sensitive to costs. This doesn’t mean that states won’t protect the environment; but they will tend to favor less burdensome solutions.

For instance, before 2015, a federal regulation forbade the “take” of any Utah prairie dog—a species found only in Utah without any connection to interstate commerce. That regulation was struck down by a federal district court in a case I’m litigating on behalf of People for the Ethical Treatment of Property Owners. We’re challenging the regualtion as exceeding Congress’ authority under the Commerce Clause. When the federal district court struck the regulation down, responsibility for protecting this species returned to the state.

How did the state respond? It committed substantial funds to establish a new program to protect the species, without imposing the severe burdens on communities and property owners. The federal regulation prevented homeowners, parks, airports, and cemeteries from dealing with the adverse impacts of the rodents, on pain of massive fines and imprisonment. The state’s alternative, however, addressed residents’ concerns by moving Utah prairie dogs from these problem areas to publicly owned conservation areas, where they could be permanently protected.

Of course, states, as laboratories of democracy, will sometimes develop policies that don’t work so well. However, this risk is better than the risk of the federal government imposing one single policy nationwide, which is just as likely to be unsuccessful or overly burdensome. When the federal government imposes a bad environmental policy, it can be difficult to fix it because there’s nothing to compare it to. But, when states compete, we can easily make those comparisons and reward effective states and punish the ineffective ones. That’s precisely why the Constitution limits federal power and leaves most policy-making authority in the states.

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