Commandeering conservation obstructs environmental federalism

In the wake of the election, there’s hope that environmentalists will discover the benefits of federalism to the environment. Those benefits could be huge. Federalism pits states against each other in competition for voters, taxpayers, industry, and—since many state politicians have eyes on national office—policy credibility. As a result, states can serve as “laboratories of democracy” by experimenting with novel solutions to difficult public policy problems.

That experimentation is urgently needed. Environmental issues are complex and plagued by uncertainty. However, most federal environmental laws are one-size-fits-all and haven’t changed since the Cold War. Unfortunately, this week brought news that some environmental groups, at least, are going to obstruct environmental federalism. The Center for Biological Diversity has threatened to sue the state of Washington over its mining regulations, alleging that they do not conform with the federal Endangered Species Act.

As you may recall, that statute forbids the “take” of endangered species, which includes essentially any activity that adversely affects any member of the species or its habitat. CBD does not contend that Washington is actually taking any species. Instead, it alleges that the state has inadequately regulated its citizens to prevent them from causing take and is therefore liable.

This legal theory is wildly inconsistent with the Constitution. To preserve federalism, the Constitution forbids the federal government from “commandeering” states by forcing them to adopt or implement federal policy. CBD’s legal theory does exactly that—it converts the Endangered Species Act into a mandate to states to adopt and implement regulations that conform to the environmental group’s interpretation of federal policy. Unfortunately, the First Circuit and several district court cases have accepted this unconstitutional interpretation. Perhaps the best example of the absurd results of this interpretation is the U.S. Fish and Wildlife Service fining a city for not having a dog leash law.

Lawsuits like this threaten environmental federalism. In order to enjoy the benefits of federalism, states must have the breathing room to experiment. But they don’t if any approach other than burdensome regulations and prohibitions exposes them to lawsuits, injunctions, and perhaps even fines. That’s a shame, especially in light of the growing evidence of success by state-led voluntary conservation programs. Just this week, one protected just under 2,000 acres of additional habitat for the lesser prairie chicken. We need more progress like that, not more lawsuits.


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