Academic journal article
By Wise, Charles; O'Leary, Rosemary
Public Administration Review , Vol. 57, No. 2
Although the issue of intergovernmental relations has occupied a position of central importance in public administration, federalism policy has only episodically been addressed as an issue of national importance by Congress and the president. At the present time, however, the political branches of the federal government are engaged in an intense and fundamental policy debate in domestic policy areas as diverse as welfare and criminal justice over how to assign responsibilities and authority in the federal system. Even more remarkable is the re-entrance of the Supreme Court into the arena in which the boundaries of federalism policy are being set. The 1995 decisions, U.S. Term Limits v. Thorton (115 S.Ct. 1842) and United States v. Lopez (115 S.Ct. 1624), demonstrated the Court's intention to be involved in the boundary-marking enterprise at a fundamental level not witnessed since the New Deal.(1) The Court's intention to address federalism boundaries in a fundamental way is significant and has been building for some time (Wise and O'Leary, 1992).
Perhaps no other area illustrates the dilemmas in boundary-marking with respect to federalism policy and its effect on intergovernmental relations as well as the area of environmental regulation. Here too, the federal courts play a major role. State and local governments are dealing with a major shift in environmental management responsibilities. Environmental protection mandates have been, and still are, moving from the federal level to the state and local levels (Advisory Commission, 1990; Zimmerman, 1992). This phenomenon has had a major impact on environmental management and policy in the United States (DiLorenzo, 1993). Many disputes concerning which government entities have responsibilities and authority for environmental programs are decided in the courts (O'Leary, 1993a). While much has been written separately on intergovernmental relations (Kettl, 1983; Gormley, 1987; Wright, 1988), federalism and environmental policy (Tobin, 1992; Hamilton, 1990), and environmental litigation (O'Leary, 1993a), little attention has been paid to the impact of court decisions on federalism and intergovernmental relations in environmental management and policy.
The purpose of this article is to examine how the courts define the various roles in the federal system in the environmental area and to analyze the meaning of their decisions for intergovernmental relations in environmental management. The article reviews judicial actions in different sectors of environmental regulation including regulatory takings; pesticides and toxic substances; solid, hazardous and radioactive wastes; and federal facilities. The article closes by analyzing the various circumstances and outcomes in which courts have dealt with changing environmental management issues.
This topic is important largely because of the changes in environmental regulation since the Environmental Protection Agency (EPA) was created 25 years ago. As the United States initially attempted to address environmental issues comprehensively, much environmental regulation was centralized. "In 1970, EPA wrote the regulations, set the standards, issued the permits, and did most of the monitoring, inspection, and enforcement work involved in ensuring compliance with national environmental rules" (Crampton, 1984, 4). Nonetheless, a consensus began to emerge that it was preferable to decentralize decision-making with regard to enforcement (Manley, 1987, 665). Congress began to express its preference for a larger state and local role. By 1984 the states were characterized by the EPA's Director of Management Systems and Evaluation as "the primary operational arm of a national network for environmental protection" (Crampton, 1984, 5).
The image of states constituting an operational arm of a national network, however, connotes more order in, and mutual understanding of, federal and state roles than may actually exist. …