UCLA Journal of Environmental Law and Policy

Scholars of democratic experimentalism and new governance rightly criticize the static allocations of authority found in the American traditional federalism framework for its rigidity and potential to stifle innovation at the state and local levels. Nevertheless, this critique underappreciates the level of experimentation harbored by this framework, as witnessed in the dynamic interaction between the various levels of government. This dynamic interplay, which is very much on exhibit with respect to climate change regulation, is far from being devoid of new policy innovation. It also exhibits something that, in the long run, may be just as important—the adoption, at local and regional levels, of policy innovations developed at other levels, often on a national or international scale. Hence not only do we see policy innovation arising out of traditional American federalism, but also “scale innovation.”

This backdrop is important when exploring the best governance models for emerging environmental issues, the full scope of which are still poorly understood. Where does climate change adaptation fit? Does it illustrate the market failures and potential gamesmanship that have justified traditional federalism models, complete with a strong policymaking role for the federal government, or is it best addressed as a problem ripe for the multilevel governance solutions offered by collaborative models? Any attempt to answer this question must match up the problems presented by adaption to the tools and processes offered by more traditional environmental federalism and that offered by collaborative governance regimes.

I argue that, as understood so far, adaptation calls for a hybrid between traditional federalism models and models suggested by democratic experimentalism and collaborative governance. Commentators uniformly predict that climate change will bring with it dynamic, complex and potentially abrupt, eco-systemic change at varying scales. Thus, for some, regulations in the service of adaptation should seek to reduce the vulnerability of ecosystems to abrupt and uncertain change and to reinforce the resiliency of such systems. This process would seem ideally suited to democratic experimentalism—a problem in need of a regulatory system that is constantly monitoring its effects and updating its requirements. But for others, adaptation will necessitate national (and possibly international) infrastructure and regulations, which, together with needed minimum standards applicable to intrastate issues, will call for federal, state and local regulation similar to traditional federalism. I conclude that a model for a hybrid of the two—experimentalism and federalism—might be found in the cooperative federalism structure of EPA’s recent Clean Power Plan. Here, states are held accountable by the federal government to regulatory goals of their own making. Thus the Plan incorporates flexibility of experimentalism but also the minimum standards and backstop of federal regulation.