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Author: Erin Ryan
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
The intensity of federalism disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy. This chapter argues that environmental law is uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples -- who gets to decide? -- in contexts where state and federal claims to power are simultaneously at their strongest. Environmental problems tend to match the need to regulate the harmful use of specific lands (among the most sacred of local prerogatives) with the need to regulate border-crossing harms caused by these uses (among the strongest of national prerogatives). As a result, it is often impossible to solve the problem without engaging authority on both ends of the spectrum -- and disputes erupt when local and national ideas on how best to proceed diverge. Ongoing jurisdictional controversies in energy policy, pollution law, and natural resource management reveal environmental law as the canary in federalism's coal mine, showcasing the underlying reasons for jurisdictional conflict in all areas of law. Concluding the book, this chapter explores why environmental law regularly raises such thorny questions of federalism, and how environmental law has adapted structurally to manage federalism conflicts. Drawing from the theoretical framework that I introduced in FEDERALISM AND THE TUG OF WAR WITHIN (Oxford, 2012: http://ssrn.com/abstract=1991612), Part II reviews the central objectives of federalism, examining the conflicting values they imply and the resulting tension that suffuses all federalism-sensitive governance. Part III evaluates why federalism conflicts are heightened in the context of environmental law. Divisiveness not only reflects the intense competition among federalism values in environmental governance, it also provides key insights into the core theoretical dilemmas of jurisdictional overlap more generally. Part IV probes how environmental law has adapted to manage the challenges of overlap by asymmetrically allocating local, state, and federal authority within various models of collaborative or coordinated governance. Part V concludes with consideration of what the larger discourse can learn from the dynamic federalism and multiscalar governance innovations emerging from within environmental governance. Through processes that engage stakeholders at all levels of jurisdictional scale, environmental federalism is lighting a path away from the old “zero-sum” model of federalism (which treats every assertion of authority at one jurisdictional level as a loss of authority for the others), and toward a model of negotiated federalism emphasizing consultation, compromise, and coordination.
Author: Erin Ryan
Publisher: Oxford University Press, USA
ISBN: 0199737983
Category : Law
Languages : en
Pages : 429
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Book Description
As environmental, national security, and technological challenges push American law into ever more inter-jurisdictional territory, this book proposes a model of 'Balanced Federalism' that mediates between competing federalism values and provides greater guidance for regulatory decision-making.
Author: Erin Ryan
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
The intensity of federalism disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy. This chapter argues that environmental law is uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples -- who gets to decide? -- in contexts where state and federal claims to power are simultaneously at their strongest. Environmental problems tend to match the need to regulate the harmful use of specific lands (among the most sacred of local prerogatives) with the need to regulate border-crossing harms caused by these uses (among the strongest of national prerogatives). As a result, it is often impossible to solve the problem without engaging authority on both ends of the spectrum -- and disputes erupt when local and national ideas on how best to proceed diverge. Ongoing jurisdictional controversies in energy policy, pollution law, and natural resource management reveal environmental law as the canary in federalism's coal mine, showcasing the underlying reasons for jurisdictional conflict in all areas of law. Concluding the book, this chapter explores why environmental law regularly raises such thorny questions of federalism, and how environmental law has adapted structurally to manage federalism conflicts. Drawing from the theoretical framework that I introduced in FEDERALISM AND THE TUG OF WAR WITHIN (Oxford, 2012: http://ssrn.com/abstract=1991612), Part II reviews the central objectives of federalism, examining the conflicting values they imply and the resulting tension that suffuses all federalism-sensitive governance. Part III evaluates why federalism conflicts are heightened in the context of environmental law. Divisiveness not only reflects the intense competition among federalism values in environmental governance, it also provides key insights into the core theoretical dilemmas of jurisdictional overlap more generally. Part IV probes how environmental law has adapted to manage the challenges of overlap by asymmetrically allocating local, state, and federal authority within various models of collaborative or coordinated governance. Part V concludes with consideration of what the larger discourse can learn from the dynamic federalism and multiscalar governance innovations emerging from within environmental governance. Through processes that engage stakeholders at all levels of jurisdictional scale, environmental federalism is lighting a path away from the old “zero-sum” model of federalism (which treats every assertion of authority at one jurisdictional level as a loss of authority for the others), and toward a model of negotiated federalism emphasizing consultation, compromise, and coordination.
Author: Kalyani Robbins
Publisher: Edward Elgar Publishing
ISBN: 1783473622
Category : Law
Languages : en
Pages : 453
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Book Description
How should we strike a balance between the benefits of centralized and local governance, and how important is context to selecting the right policy tools? This uniquely broad overview of the field illuminates our understanding of environmental federalism and informs our policy-making future. Professor Kalyani Robbins has brought together an impressive team of leading environmental federalism scholars to provide a collection of chapters, each focused on a different regime. This review of many varied approaches, including substantial theoretical material, culminates in a comparative analysis of environmental federalism and consideration of what each system might learn from the others. The Law and Policy of Environmental Federalism includes clear descriptive portions that make it a valuable teaching resource, as well as original theory and a depth of policy analysis that will benefit scholars of federalism or environmental and natural resources law. The value of its analysis for real-world decision-making will make it a compelling read for practitioners in environmental law or fields concerned with federalism issues, including those in government or NGOs, as well as lobbyists.
Author: Erin Ryan
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
This symposium piece distills a few important points from my previous research about the need for negotiated governance and the options for accomplishing it--including Negotiating Federalism (https://ssrn.com/abstract=1583132), which identified the pervasive use of intergovernmental bargaining as a tool for dealing with jurisdictional uncertainty; FEDERALISM AND THE TUG OF WAR WITHIN (https://ssrn.com/abstract=1991612), which folded the concept of negotiated governance into a general theory of Balanced Federalism, exploring how contrasting federalism values are managed by various means of consultation, competition, and collaboration; and Environmental Federalism's Tug of War Within, (https://ssrn.com/abstract=2532687), the closing chapter to an environmental federalism book, in which I applied Balanced Federalism theory to bridge the collection's analyses of different areas of environmental law. Drawing from this body of work, this conversational essay draws out two separate themes, digesting the implications of negotiated federalism for: (1) administrative environmental governance; and (2) American federalism in general, using environmental law as a substantive laboratory to demonstrate the challenges in American federalism that lead us toward negotiated governance in all fields. Part I thus begins by exploring why environmental law seems always at the epicenter of federalism controversy--why it is, as I have previously called it, the “canary in federalism's coal mine.” In Part I, I will ask why environmental controversies become so intense that they require negotiated resolution, and I will suggest that it has to do with both the nature of environmental problems specifically and the nature of American federalism itself. Part II considers how the nature of American federalism itself is also responsible for the dilemmas that lead us toward negotiated resolutions. Federalism, after all, is a strategy for good governance--a means of accomplishing the underlying good governance values that the Constitution envisions, and for coping with the inevitable values conflicts identified in Balanced Federalism. Part II reveals how unresolved constitutional issues foment jurisdictional uncertainty, encouraging the use of negotiation to mediate multiscalar governance dilemmas. It considers how state-federal bargaining is not only a rational means of coping with uncertainty, but deployed effectively, a wise means that confers benefit up and down the jurisdictional scale. Part III brings this conversation about federalism's underlying values clash back to environmental law, and the innovative technologies of multiscalar governance that have evolved there. It observes how environmental law has responded to federalism's challenge at the structural level, experimenting with various means of asymmetrically allocating regulatory authority to encourage different valences of consultation, negotiation, collaboration, and competition. It shows how different approaches to cooperative federalism can be adapted to procure distinct mixtures of local and national input. I conclude with reflections on the critical insight with which the phenomenon of negotiated federalism should leave us: despite centuries of rhetoric to the contrary, federalism need not be, and indeed never has been, a zero-sum game.
Author: Erin Ryan
Publisher:
ISBN:
Category :
Languages : en
Pages : 5
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Book Description
This short essay, solicited by the ENVIRONMENTAL SCIENTIST journal, distills the lessons of American experimentation with environmental federalism and multilevel governance for use by other nations (drawing from Environmental Federalism's Tug of War Within, in THE LAW AND POLICY OF ENVIRONMENTAL FEDERALISM: A COMPARATIVE ANALYSIS (Kalyani Robbins, ed., 2015). Multilevel environmental governance disputes reflect increasing pressure on all levels of government to meet the challenges of regulation in an increasingly interconnected world. In the United States (US), debate over the responsibilities of different levels of government are framed within our system of constitutional federalism, which divides sovereign power between the central federal administration and regional states. Dilemmas about devolution have been erupting in all regulatory contexts, but environmental governance remains uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples -- “who gets to decide?” -- in contexts where state and federal claims to power are simultaneously at their strongest. Environmental problems tend to match the need to regulate the harmful use of specific lands (among the most sacred of local prerogatives) with the need to regulate border-crossing harms caused by these uses (among the strongest of national prerogatives). As a result, it is often impossible to solve the problem without engaging authority on both ends of the spectrum -- and disputes erupt when local and national ideas on how best to proceed diverge. Ongoing jurisdictional controversies in energy policy, pollution law, and natural resource management reveal environmental law as the canary in federalism's coal mine, showcasing the underlying reasons for jurisdictional conflict in all areas of law. Wrestling with these incendiary tensions at the intersection of local land use and spill-over harm, environmental federalism helpfully exposes the fault lines underlying the American federal system to analysis -- but also the available tools for coping with them. American environmental law has developed structural means of managing these tensions which may be instructive for other devolution conflicts or claims for decentralised environmental decision-making in other jurisdictions. This article suggests a few potential lessons from the American experience.
Author: Erin Ryan
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the 'Obamacare' cases, the Court considers whether the Affordable Care Act ('ACA') exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress's efforts to grapple with the nation's health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact the upcoming presidential and congressional elections, and some argue that they may significantly alter public faith in the Court itself. But from the constitutional perspective, they are important because they will speak directly to the interpretive problems of federalism that have ensnared the architects, practitioners, and scholars of American governance since the nation's first days. This very short essay explains the battle over Obamacare in terms of the classic American federalism debates, and proposes a better way of analyzing this and all federalism issues, drawing from a new book. (Different versions of this essay were cross-posted to RegBlog, the American Constitution Society Blog, and the Environmental Law Profs Blog on June 21, 2012.).
Author: Paul Schiff Berman
Publisher: Oxford University Press
ISBN: 0197516750
Category : Law
Languages : en
Pages : 944
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Book Description
Over the past two decades Global Legal Pluralism has become one of the leading analytical frameworks for understanding and conceptualizing law in the 21st century. Wherever one looks, there is conflict among multiple legal regimes. Some of these regimes are state-based, some are built and maintained by non-state actors, some fall within the purview of local authorities and jurisdictional entities, and some involve international courts, tribunals, and arbitral bodies, and regulatory organizations. Global Legal Pluralism has provided, first and foremost, a set of useful analytical tools for describing this conflict among legal and quasi-legal systems. At the same time, some pluralists have also ventured in a more normative direction, suggesting that legal systems might sometimes purposely create legal procedures, institutions, and practices that encourage interaction among multiple communities. These scholars argue that pluralist approaches can help foster more shared participation in the practices of law, more dialogue across difference, and more respect for diversity without requiring assimilation and uniformity. Despite the veritable explosion of scholarly work on legal pluralism, conflicts of law, soft law, global constitutionalism, the relationships among relative authorities, transnational migration, and the fragmentation and reinforcement of territorial boundaries, no single work has sought to bring together these various scholarly strands, place them into dialogue with each other, or connect them with the foundational legal pluralism research produced by historians, anthropologists, and political theorists. Paul Schiff Berman, one of the world's leading theorists of Global Legal Pluralism, has gathered over 40 diverse authors from multiple countries and multiple scholarly disciplines to touch on nearly every area of legal pluralism research, offering defenses, critiques, and applications of legal pluralism to 21st-century legal analysis. Berman also provides introductions to every part of the book, helping to frame the various approaches and perspectives. The result is the first comprehensive review of Global Legal Pluralism scholarship ever produced. This book will be a must-have for scholars and students seeking to understand the insights of legal pluralism to contemporary debates about law. At the same time, this volume will help energize and engage the field of Global Legal Pluralism and push this scholarly trajectory forward into another two decades of innovation.
Author: Jonathan Z. Cannon
Publisher: Harvard University Press
ISBN: 0674425987
Category : Law
Languages : en
Pages : 385
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Book Description
The first Earth Day in 1970 marked environmentalism’s coming-of-age in the United States. More than four decades later, does the green movement remain a transformative force in American life? Presenting a new account from a legal perspective, Environment in the Balance interprets a wide range of U.S. Supreme Court decisions, along with social science research and the literature of the movement, to gauge the practical and cultural impact of environmentalism and its future prospects. Jonathan Z. Cannon demonstrates that from the 1960s onward, the Court’s rulings on such legal issues as federalism, landowners’ rights, standing, and the scope of regulatory authority have reflected deep-seated cultural differences brought out by the mass movement to protect the environment. In the early years, environmentalists won some important victories, such as the Supreme Court’s 1973 decision allowing them to sue against barriers to recycling. But over time the Court has become more skeptical of their claims and more solicitous of values embodied in private property rights, technological mastery and economic growth, and limited government. Today, facing the looming threat of global warming, environmentalists struggle to break through a cultural stalemate that threatens their goals. Cannon describes the current ferment in the movement, and chronicles efforts to broaden its cultural appeal while staying connected to its historical roots, and to ideas of nature that have been the source of its distinctive energy and purpose.
Author: Alberto López-Basaguren
Publisher: Springer
ISBN: 3319597078
Category : Law
Languages : en
Pages : 576
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Book Description
This volume, incorporating the work of scholars from various parts of the globe, taps the wisdom of the Westphalian (and post-Westphalian) world on the use of federalism and secession as tools for managing regional conflicts. The debate has rarely been more important than it is right now, especially in light of recent events in Catalonia, Scotland, Québec and the Sudan - all unique political contexts raising similar questions about how best to balance competing claims for autonomy, interdependence, political voice, and exit. Exploring how various nations have encountered comparable conflicts, some more and some less successfully, the book broadens the perspectives of scholars, government officials, and citizens struggling to resolve sovereignty conflicts with a full appreciation of the underlying principles they represent.
Author: John J. Infranca
Publisher: Edward Elgar Publishing
ISBN: 1803928204
Category : Law
Languages : en
Pages : 313
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Book Description
Authoritative and multidisciplinary in approach, this Research Agenda shapes questions that will underpin future legal and empirical scholarly inquiry on zoning and land use regulation in the US. Building on existing debates and providing a comprehensive overview of the current state of academic research, it identifies the gaps which need addressing in future research.
