Wednesday, November 7, 2018

Recreating Cooperative Federalism with State and Local Governance

The United States uses a cooperative federalism framework to implement much of federal law.  Under this framework, Congress allows states to take over implementation of major aspects of the program, while still requiring oversight and review by a federal administrative agency.   These arrangements have become central to environmental law—the Clean Air Act, Clean Water Act, and RCRA provide a few of the most prominent examples—and to many other regulatory fields.

One might wonder, then, whether state and local governments recreate similar arrangements—and, if those arrangements do exist, how well they work and what makes them succeed.  After all, many of the justifications for cooperative federalism might seem to apply with similar force to relationships between state and local governments, particular in larger states.  In a recent research project, the results of which are published here, I attempted to begin answering these questions.

The answer to the first question is that while these programs are much less prevalent and prominent than federal-state cooperative federalism, they do exist.  Some programs, like California’s system of air quality planning or land use regulation in Oregon, have been around for decades.  Others, like land use planning in Florida, existed for a long time before eventually becoming defunct.  And others, like groundwater management in California, are brand new.

The answer to the second question is that these programs can work well.  I interviewed experienced participants in Florida land use regulation, Oregon land use regulation, and California air quality management.  Almost without exception, they identified a cooperative state-local model (which I’ve labeled “cooperative subfederalism”) as an effective way to govern.  No one suggested that the model is foolproof, and participants identified many challenges to its success.  But they generally viewed it as an effective system for managing the inevitable conflicts and as superior to other potential governance options.  Perhaps, then, such arrangements should become more common than they currently are.

I also asked how these systems can be structured for success, and here, responses coalesced around a few key points (on other matters, there was a wide range of views).  Most importantly, my interview subjects recommended a highly interactive governance model and a highly engaged state.  Leaving local governments alone, while perhaps intuitively appealing, was not the recommended course.  Instead, interviewers recommended continuous communication, financial and technical support, and some sharing of roles.

Beyond suggesting changes in the structure of state and local governance, these conclusions have interesting implications for traditional theories of federalism.  They raise questions about the practice, which is particularly prevalent in Supreme Court opinions, of equating state and local governance.  The primary reason a cooperative subfederalism model is valuable, according to my interview subjects, is that state and local governments are quite different, with the local governments possessing many of the positive qualities (and some of the negative ones) that traditional federalism rhetoric attributes to states.  Additionally, these findings raise questions about the emphasis, which is also pronounced in traditional federalism theory, of preserving sharp distinctions between federal and local spheres.  Those sharp distinctions don’t seem to work well when state and local governments divvy up authority, and that raises questions, at the very least, about why they should be more productive when drawn between the federal government and the states.

The final article is available here.

- Dave Owen

https://lawprofessors.typepad.com/environmental_law/2018/11/recreating-cooperative-federalism-with-state-and-local-governance.html

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