The Evolution of Cooperative Federalism

By 1970, the United States was reeling from a series of environmental disasters, including Ohio’s Cuyahoga River bursting into flames. Public concern skyrocketed. In response, President Nixon’s advisory council recommended creating a new agency, the Environmental Protection Agency (EPA).¹

And so began a tug of war between federal and state governments over environmental regulations. In this article, we’ll examine the history of cooperative federalism while looking at how environmental federalism continues to alter power distribution.

Cooperative federalism requires state and national governments to share power and collaborate on overlapping functions. In contrast, dual federalism works on the idea that federal and state governments function separately and distinctly.

Advocates of cooperative federalism refer to the constitution, specifically the Necessary and Proper Clause (Article 1, Section 8), Supremacy Clause (Article VI) and the Tenth Amendment.² Cooperative federalism has been around in some shape or form since Thomas Jefferson’s administration.

You can see examples of cooperative federalism in action by reviewing how the national and state governments enacted various policies, such as the Swamp Lands Acts of 1849, 1850 and 1860, the Morrill Act of 1862 and Franklin D. Roosevelt’s New Deal.²

Lyndon B. Johnson’s War on Poverty falls under the definition of creative federalism, which transfers more power to the federal government. 3 Years later, Nixon’s EPA established the Clean Air Act (CAA), Federal Environmental Pesticide Control Act and Clean Water Act.^1,4,5

When Reagan entered the political arena, a desire to crush creative federalism resulted in a return to dual federalism, coined new federalism during the Reagan era.⁶ During the Bush presidencies, federal control over state governments increased, partially from the passing of the Patriot Act.⁷

By 2009, President Obama’s progressive federalism allowed states to create stricter regulations, but the federal government enforced compliance with federal rules. The Trump administration ushered a return to dual federalism in some ways while interfering in the state’s rights in others; some called this approach punitive federalism.⁸

The EPA expresses a full commitment to cooperative federalism, stating that it believes in “working collaboratively with states, local government and tribes to implement laws that protect human health and the environment, rather than dictating one-size-fits-all mandates from Washington.”⁹

However, the directives of the EPA vary widely based on their political leanings, making oversight of environmental federalism and law essential.

Environmental failures have a wide-reaching impact. Moreover, there are times when the federal government is negligent or unsuccessful in environmental endeavors within states and cases where inadequate state programs harm the environment.

Environmental federalism aims to maintain the delicate balance of states’ rights while ensuring action or nonaction doesn’t negatively affect the environment and those living in it. Environmental law covers local, national and international legislation, statutes and regulations. It can help create a regulatory framework, legal consequences and industry standards.

With a constant tug of war between government officials, corporations and lobbyists, environmental lawyers play a huge role in protecting and preserving our environment while balancing economic concerns. A degree like a Master of Jurisprudence in Environmental Law can help bridge that gap and prepare professionals to assist in government offices, advocacy groups or regulatory companies.

The fight between states and the federal government is as old as our country. A great recent example is the Clean Power Plan. When it was enacted, 24 states filed lawsuits to void it.¹⁰ Yet, when Trump ended the Clean Power Plan, 22 states filed suits in protest.¹¹ Certainly, some cases are merited and achieve the proper balance of power. Nevertheless, there are also cases of federal overreach.

California laws are well-known for their strict standards, such as air quality regulations that are more stringent than the Clean Air Act.¹² Under cooperative federalism, states can enact laws that meet or exceed federal standards. However, Trump challenged states’ rights and went against cooperative federalism by revoking California’s 1967 waiver to regulate vehicle emissions.¹³

In another case, Massachusetts v. Environmental Protection Agency, 12 states argued that the EPA failed to regulate carbon dioxide emissions from vehicles under the CAA. Ultimately, the United States Supreme Court ruled that carbon emissions fell under EPA authority and the air pollutants regulation.¹⁴

Many challenges to federal regulations fall under the use of the Commerce Clause, which gives Congress the authority to regulate interstate environmental activities.

For example, in Alabama-Tombigbee Rivers Coalition v. Kempthorne, several companies claimed the U.S. Fish and Wildlife Service (FWS) had no authority to list the Alabama sturgeon under the Endangered Species Act (ESA), as it didn’t cross state lines. But, this case and many similar suits failed.¹⁵

In April 2019, an executive order (EO) signed by Trump gave the president the authority to “issue, deny, or amend” permits for projects crossing international borders, which removed the power from the secretary of state.¹⁶ President Biden has not rolled back this EO, but he canceled the Keystone XL Pipeline that Trump’s initial EO referenced.¹⁷

In this case, Trump’s EO overruled states’ rights. However, in March 2019, Trump removed the 2015 Sage Grouse Conservation Plans, giving states more control to extract fossil fuels without penalty.¹⁸

Modern cooperative federalism recognizes that a one-size-fits-all policy doesn’t work for all environmental issues. Nor should the federal government set state or local policy goals or coerce them into conforming to national ideals. Still, environmental federalism acknowledges the federal government’s role in assisting states via an advisory role, increasing collaboration and support.

Several organizations propose solutions. The Environmental Council of the States (ECOS) outlined their Cooperative Federalism 2.0 that leverages state autonomy.¹⁹ The Environmental Law Institute (ELI) released The Macbeth Report: Cooperative Federalism in the Modern Era, which aims to embrace technological innovation and the private sector while redefining the federal enforcement process.²⁰

Your local community doesn’t fit into a neat box with other cities and states around the country. Neither should environmental regulations. If you’d like to help develop and implement laws that protect human health and the environment that make sense for your community, learn how an Online Master of Jurisprudence in Environmental Law from Tulane University Law School can help you forge a new path.