Federalism Disad



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US Federalism Bad: Environment




Federalism leads to a race to the bottom in environmental regulation

Robert A. Schapiro, Professor of Law, Emory University School of Law, 2005


(“Toward a Theory of Interactive Federalism” 91 Iowa L. Rev. 243)
This economic model of federalism is subject to a variety of limitations, both from a market and a non-market perspective. First, market failure, particularly in the form of externalities, may occur. 89 The states' policy choices may have effects that extend beyond their borders. Pollution in one state may reach another state. If one state provides a vital habitat for migratory wildlife, that state's decision as to whether to protect the habitat will have cross-border effects. Treating each state as an autonomous firm obscures important and inevitable interconnections. Interstate competition, moreover, may drive states to change their regulatory policies so as to be more attractive to business. 90 States may lose business if they do not match the industry-friendly policies of other states. This kind of jurisdictional competition has been termed a "race to the bottom." 91

Federalism sacrifices environmental protectiveness

Buzbee, Professor of Law at Emory, 2006 (William. “CONTEXTUAL ENVIRONMENTAL FEDERALISM” http://www.law.nyu.edu/journals/envtllaw/issues/vol14/1/v14_n1_buzbee.pdf)


The “contextual environmental federalism” analysis that I call for stands in contrast to many other scholars’ approaches to environmental federalism. In articulating how environmental regulation should be designed, an array of modes of argument and forms of proof are commonly used to support particular preferred mixes of federal, state and local roles. Much of this debate over environmental federalism seeks to resolve these issues through:• constitutional argument, • semi-historical normative arguments,• historical examples, • empirical data, or • theoretical analysis. The question typically boils down to whether federal environmental regulation, or sometimes federal environmental primacy, is appropriate or necessary. These various approaches reach a few somewhat predictable conclusions. While few argue that the federal environmental role is unconstitutional, one common strain among scholars and policymakers is the idea that, due either to constitutional presumptions or the diversity of circumstances among the states, the regulatory norm should be a limited federal role unless some compelling alternative rationale justifies federal leadership. Sometimes these arguments rely on a mix of theory and anecdotally based empiricism,3 but more often this is offered as an argument from first principles. No federal role is called for, unless a compelling justification is found.4

This argument is often rooted in what is sometimes referred to as the “matching principle” or “subsidiarity” conceptions. Under this logic, matching the level of government most commensurate with the regulatory ill is the best way to ensure the correct amount and form of regulation. Typically, people espousing this position emphasize the geographical dimensions of an environmental ill to argue that it counsels for a primary state or local regulatory role.5 As I explored in a recent work on the implications of the “regulatory commons,” and will discuss more fully below, this literature in the environmental area makes fundamental conceptual errors in failing to consider the several dimensions in which regulatory challenges and effective regulatory responses exist.6

Others see the federal government, at least since 1970 and the explosion of federal environmental legislation, as the most innovative and primary protector of the environment and are wary of federal surrender of that role.7 As with arguments for state and local primacy, proponents of federal environmental leadership also utilize theoretical political-economy arguments in support of a substantial, often primary, federal role. They note several reasons to be wary of significant or primary state environmental standard setting. They point to race-to-the-bottom risks, where jurisdictions competing for business and jobs and eager to keep taxes low will be tempted to sacrifice softer environmental concerns for the more immediate, tangible, monetary benefits of under-regulation.8 Even where two competing states share a preference for a clean and safe environment, interstate competition may lead both to sacrifice environmental protectiveness. Professor Engel’s work provides a powerful empirical and theoretical refutation of Dean Revesz’s contention that although interjurisdictional competition for business may sacrifice environmental protection, it will nevertheless enhance social welfare.9 Critics of any reflexive allocation of regulatory power to states also point out that many environmental risks far outstrip any state or local government’s reach.10 This problem of scale links to the argument that economies of scale inherent in gathering environmental data and deriving effective pollution control techniques justify the current level of federal involvement.11 Furthermore, it has been argued that since larger units of government are less susceptible to regulatory surrender, the interest group dynamics and skewed resources at play in environmental regulation require federal level control.12 Some make the modest and less controversial point that if one desires a cleaner environment, then one may prefer a leading federal role because that is the level of government where environmental advocates have been most successful over the last thirty years of the environmental movement.13

US Federalism Bad: Disease, Terrorism, Disasters


Federalism leads to ineffective responses to disease outbreaks, terrorist attacks, and natural disasters

Griffin, Professor in Constitutional Law, Tulane School, 2007


[Stephen M., St. Johns Journal of Legal Commentary Spring- “Symposium: Federalism Past, Federalism Future: A Constitutional Law Symposium: Stop Federalism Before It Kills Again: Reflections On Hurricane Katrina]
And so it is still the case that when natural disasters strike, the divided power of the federal structure presents a coordination problem. The kind of coordination that had to occur to avoid the Katrina disaster requires long-term planning before the event. The American constitutional system makes taking intergovernmental action difficult and complex. The process of coordinating governments can take years. In many ways, the government was just at the beginning of that process at the time of Katrina, n48 although we are now four years distant from the terrorist attacks of September 11, 2001 that set the latest round of disaster coordination in motion. Suppose, however, that we don't have the luxury of taking the time to satisfy every official with a veto. This is the key point of tension between what contemporary governance demands and what the Constitution permits. The kind of limited change that occurred in 1927 can take us only so far. What Hurricane Katrina showed was that even after decades of experience with natural disasters, the federal and state governments were still uncoordinated and unprepared. The reasons they were unprepared go to the heart of the constitutional order. Unless we learn some lessons, Katrina will happen again. It may be a massive earthquake, an influenza pandemic, a terrorist attack, or even another hurricane, but the same ill-coordinated response will indeed happen again unless some attention is paid to the constitutional and institutional lessons of Katrina. We need to "stop federalism" before it kills again. That is, we need to stop our customary thinking about what federalism requires in order to prevent another horrific loss of life and property.
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