Supreme Court should preempt state laws to save environmental federalism

The title may seem paradoxical, at first. But it gets at one of the most important and misunderstood aspects of federalism. Contrary to “states rights” advocates, federalism does not mean that the federal government is limited but state and local governments can do whatever they want. Rather, federalism is a means of protecting liberty by dividing government power among two levels of government, with each checking the other.

oblique_facade_22c_us_supreme_courtThis week, PLF filed the final brief in the Supreme Court asking it to review a challenge to California’s suction dredge mining ban. The case (Rinehart v. California) tees up this distinction perfectly. Although the case challenges the state ban as preempted by federal law, it will protect the states’ proper role in environmental federalism in the long run.

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States cannot veto Congress’ decisions to put federal lands to productive uses

For decades, the federal government’s ownership of vast areas of the west, and its decisions to restrict the productive uses of these lands, have been a constant source of conflict. States, local communities, and neighboring property owners complain that these decisions, which can have significant impacts on their local economies, should not be made by distant politicians and bureaucrats in Washington.

However, their calls for the federal government to transfer these lands to states or private property owners, as the government did in eastern states, have been sharply opposed by environmentalists. They argue that only the federal government can decide how “our” lands should be used. States have to accept Congress’ decisions about these lands.

seal_of_california2c_department_of_education2c_1430_n_street2c_sacramento2c_california
California’ seal features a prospector, but the state has recently cooled on mining

But the tables have turned in a case that Pacific Legal Foundation is asking the U.S. Supreme Court to hear. Federal law encourages mining on many federal lands. California disagrees with Congress’ decision and, spurred on by environmentalists, has adopted an outright ban on suction dredge mining within the state, including on federal lands. Apparently, all that talk about states having to accept Congress’ decisions about federal land had an unstated qualification—except those states where environmentalists hold political power.

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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“:

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