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Uncooperative environmental federalism: State suits against the federal government in an age of political polarization

Abstract

The conventional account of most U.S. environmental regulation goes something like this: cooperative federalism schemes accommodate state and federal interests while tapping into the respective strengths of centralized and decentralized regulation. In cooperative federalism arrangements, the federal government sets minimum environmental standards and invites the states to participate in achieving them, even by setting their own more stringent standards. In recent years, however, states and the federal government have displayed a distinct lack of cooperation on environmental matters. With increasing frequency, they turn to the courts to resolve environmental policy disagreements. Under the Obama Administration, Texas emerged as a leading litigant in opposition to federal environmental policies. Under the Trump Administration, California has assumed a similar role. Though these recent suits have attracted much attention, state-versus-federal lawsuits are not a new phenomenon. As this Article demonstrates, states and the federal government have clashed in the courts almost since the beginning of the modern era of environmental law. State-initiated environmental lawsuits against the federal government can be sorted into three categories: (1) challenges to the federal government's handling of public resources, (2) disputes over state prerogatives under cooperative federalism statutes and preemption provisions, and (3) litigation over national policy. Suits in the third category, which have exploded in recent years, have raised the greatest concerns about state standing and the appropriateness of such suits. Standing doctrine, however, generally does not bar such suits, and these suits may not be as problematic as might first appear. Even if states did not sue, private parties would likely challenge the same federal actions. Rather than causing political polarization, state suits are more likely a symptom of an already polarized society. Ultimately, state suits against the federal government might be viewed not as a problem, but as an important mechanism for articulating states' concerns, promoting accountability, and maintaining checks and balances against excessive federal power.

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