Balkinization: California, Environmental Policy, and Uncooperative Federalism

California, Environmental Policy, and Uncooperative Federalism

Heather K. Gerken

Yesterday, according to the New York Times, President Obama "announced tough new nationwide rules for automobile emissions and mileage standards." Although the New York Times acknowledged that the federal government was "embracing standards California has sought to enact for years," it focused largely on national politics and failed to describe the important role that California has played in pushing the national debate on these issues.

Here's what's interesting and counterintuitive about the story: California was able to push national change not because it possesses independent regulatory power, but because it plays a subsidiary role in helping administer a larger federal scheme. California, in other words, had power because it was a servant to the federal government. In a forthcoming article in the Yale Law Journal, Jessica Bulman-Pozen and I argue that California's efforts are an example of a larger phenomenon that is underappreciated among law professors: "uncooperative federalism," a term we use to describe the power states wield because they are federal servants.

Uncooperative federalism is a common phenomenon in federal environmental law and elsewhere. States like California have used their power as federal servants to nudge, cajole, push, even force the federal government to engage with them, sometimes even to change its positions. Sometimes states take advantages of the ties that exist between federal and state officials who work together. Other times they take advantage of the fact that the federal government needs them to carry out its programs. Some states rely on persuasion; others rely on outright defiance. In doing so, they enjoy a power that dissenters outside the system do not possess: these states can't be ignored, precisely because it is a federal scheme they are administering.

Legal scholars tend to ignore this power. Instead, they offer two quite distinct visions of federal-state relations. The first and most traditional depicts states as rivals and challengers to the federal government, roles they play because they are independent sovereigns, making policy separate and apart from the federal system. The competing vision is offered by scholars of cooperative federalism. As the moniker suggests, these scholars argue that in most areas state serve not as autonomous outsiders, but supportive insiders -- servants and allies carrying out federal policy. But legal scholars have not connected these competing visions to consider how the state's status as servant, insider, and ally might enable it to be a sometime dissenter, rival, and challenger.

Our essay begins to develop a vocabulary for describing this phenomenon, exploring what power states-as-federal-servants possess and why we might value this understudied aspect of "our federalism." Along the way, we analyze relevant federalism doctrine, offering some counterintuitive conclusions about the ways in which weakening the protections for state autonomy might push states to engage in stronger forms of resistance.

Posted 9:06 AM by Heather K. Gerken [link]