Fair weather federalism

Since Trump won the election, and environmentalists’ influence in Washington has decreased, they’ve been turning to states to fill any gaps created by deregulation at the federal level. And California has made it clear that it will continue to push for greater state environmental regulation, no matter how the federal winds blow. Both raise core federalism concerns that, traditionally, have enjoyed more support on the right than the left.

Growing interest in federalism on the environmental left is a welcome sign. Environmental issues, in particular, are in need of the experimentation and flexibility that federalism would encourage. And, with the exception of cross-border pollution issues, there’s little reason for a one-size-fits-all approach to be imposed from Washington.

However, for this shift towards federalism to be credible and endure, environmentalists are going to need to be embrace federalism even when it means not getting their way. Law professor Rick Hills provides the useful concept of “federalism insurance“:

So here is my question to all those new friends of federalism: Is your federalism insurance premium paid up? For instance, when the Obama Administration was forcing colleges and universities to adhere to federal procedural standards for sexual assault hearings contained in its “Dear Colleague” letter, did you stand up for those subnational institutions’ right to resist coercive Title IX conditions on federal money? No? Then do not be surprised if your pro-federalism rhetoric about the immunity of sanctuary cities to “coercive” conditions falls a little flat.

We pay for constitutional insurance through self-control when we have power, not through rhetoric when we lose it. Through the exercise of self-control across different political regimes, each Party can slowly confer on institutional arrangements a permanence (sentimentalists would even say “sanctity”) that survives change of regimes, sending a signal to their opponents that their self-control will be reciprocated when the tables are turned.

And that will be the test for environmentalists. In the past, when federal policy has been in their favor, they’ve largely eschewed federalism as an alternative. You need look no further than the attempts to undermine the recent wave of state-led voluntary conservation programs to protect species without the need for a listing. However, there are opportunities for environmentalists to start paying up their federalism insurance now.

One opportunity for demonstrating seriousness is to oppose state attempts to impose their will on their neighbors. Several states have adopted aggressive programs to shift energy production over to renewable sources. However, they’ve been unwilling to bear the costs of their program and have instead tried to shift them onto their neighbors by extending their program extraterritorially. The dormant Commerce Clause forbids states from regulating extraterritorially, because it frustrates interstate commerce and leads to overlapping and potentially conflicting regulations. It also undermines the ability of states to adopt different approaches, since that risks subjecting their residents and industry to multiple regulations.

Another opportunity is to oppose federal commandeering of the states, as it appears environmentalists will soon be arguing in support of whatever steps California takes to resist the Trump administration. To be credible, environmentalists will need to defend the anti-commandeering doctrine on a principled basis, rather than opportunistically. That includes opposing efforts to stretch the Endangered Species Act into a command to states to implement environmentalists’ preferred policies.

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