Monday, August 17, 2009

Andreen on Insights on Federalism from the History of Water Pollution Control

Delegated Federalism Versus Devolution: Some Insights from the History of Water Pollution Control is a new paper by William L. Andreen, University of Alabama School of Law. It appears in PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM’S CORE QUESTION, William W. Buzbee, ed., Cambridge University Press, 2009. Here's the abstract:
This paper examines the claim that state and local governments were beginning, prior to the enactment of the Clean Water Act in 1972, to make significant progress in the fight against water pollution. Based on this premise, some have argued that there is good reason to be skeptical about the necessity for continued federal involvement in water pollution control. At their broadest, such scholars use this revisionist history to question other federal environmental statutes’ structures as well. The implication of this argument is that the devolution of regulatory authority to the states would not produce lower levels of environmental protection. Thus our present approach to water pollution control — delegated program federalism, a form of cooperative federalism with federal regulatory floors preempting any more lax state regulation, and federal oversight of state delegated programs — is really not necessary from a practical point of view and can be discarded without producing substantial environmental harm. After setting forth the Clean Water Act’s approach to delegated federalism, the paper discusses the flawed nature of the data upon which this claim is made. The experience of the 1960s simply does not support the argument in favor of devolution. This does not mean that every state was retrograde in its protection of water quality. The paper, therefore, will also look at the progressive approach taken by some states, while also focusing upon the action of the federal government during the 1960s to improve water quality. Nevertheless, the best evidence we have indicates that water quality was not improving nationwide before the enactment of the Clean Water Act. In contrast to that level of performance, the Clean Water Act has produced considerable progress, progress, however, which would surely be jeopardized should the nation revert to the regulatory paradigm of the 1960s. The story reveals substantial benefits from federal regulation within a structure that preserves room for state participation, creativity, and even greater stringency. (This paper is a preliminary version of a chapter that was published in PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM’S CORE QUESTION (William W. Buzbee, ed., Cambridge University Press, 2009). Please refer to that final, published version for citation purposes.)