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Competitive Federalism: Environmental Governance as a Zero-Sum Game

September 2019

Citation: 49 ELR 10858

Issue: 9

Author: Shannon Roesler

When the major pollution control laws were passed in the 1970s, there was growing consensus that federal environmental regulations were essential to the protection of human health and the environment. At that time, many feared that states would engage in a “race to the bottom,” setting lax environmental regulations to attract industry and economic growth. Political support for new federal environmental regulation has since changed, with many states challenging such regulations as abuses of federal power. This has turned environmental governance into a zero-sum jurisdictional game; if the federal rule is invalidated, the state wins, and if the rule stands, the state loses. This Article, adapted from Chapter 9 of Beyond Zero-Sum Environmentalism (ELI Press 2019), investigates this recent turn to competitive federalism in the context of anti-pollution regulation. It concludes that despite the zero-sum rhetoric that pits environmental protection against economic growth, there is growing evidence that people do not view environmental protection and economic well-being in zero-sum terms.

Shannon Roesler is the Robert S. Kerr Jr. Professor of Natural Resources and Environmental Law at the Oklahoma City University School of Law.

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