After an environmental problem has been discovered – a fish kill or noxious smell emanating from a nearby river, for example – our thoughts immediately turn to how this problem can be solved. Figuring out how we get to “clean,” then requires us to consider who will be in charge of making decisions throughout the clean-up process. Who decides which actors are responsible for contamination from a toxic waste landfill that has leached into that nearby river? Who decides who pays for the clean-up? Who decides when the clean-up is complete? Stakeholders of all stripes –industry lobbyists, community organizers, government regulators, etc. – have invoked constitutional principles of federalism when arguing either for state-law solutions or in support of federal regulatory regimes. Yet this article documents that debates over environmental federalism have been driven far more by pragmatic factors (like forum shopping by litigants) than by constitutional considerations (like concern for the limits of Congress’s enumerated powers).

From public lands management in the West, to urban air pollution regulation in the late 19th century, to the birth of the modern Clean Air Act in 1970, to state-level leadership on global climate change today — environmental federalism has been driven by pragmatic concerns from litigants and not by any commitment to a particular constitutional philosophy. In disputes over uranium mines, Endangered Species Act enforcement, and moratoria on offshore drilling, environmental activists and industry executives have shared a pragmatic approach to answering the “who decides” questions of environmental law. Perhaps acceptance of this commonality can help us dial down the rhetoric and narrow the partisan divide that has made environmental policymaking so polarizing in recent years.

Cale Jaffe, Environmental Federalism as Forum Shopping, 44 William & Mary Environmental Law & Policy Review, 669–699 (2020).