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Redefining Federalism

July 2005

Citation: ELR 10445

Author: Douglas T. Kendall

Editors' Summary: Federalism has become a highly politicized term in environmental law, with some parties having adopted the term to signify an ideology of devolving federal authority over environmental protection back to the states. In this Article, the author argues that from the states' perspective, the U.S. Supreme Court is using federalism both too much and too little. Too much, in striking down federal law where even the states recognize that a federal role is necessary to address a national problem. Too little, in inappropriately limiting state experimentation. By listening more carefully to the states, the author argues that the Court could transform its federalism jurisprudence from a source of criticism and polarization to a doctrine that should win broad support from across the political spectrum.

This Article is a highly abbreviated and slightly modified version of Redefining Federalism: Listening to the States in Shaping "Our Federalism" (Envtl. L. Inst. 2004). I edited Redefining Federalism, and wrote it together with five contributing authors: Jay Austin, Jennifer Bradley, Tim Dowling, Jim Ryan, and Jason Rylander. This Article draws heavily from contributions to the book drafted originally by each of the coauthors, who therefore deserve much of the credit for the Article. I am fully to blame for any inaccuracies or logical flaws that accompany the effort to reduce a 200-page book to a 40-page Article.

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