The Renaissance of Federalism

By Bolick, Clint; Huffman, James | Environmental Law, Summer 2018 | Go to article overview

The Renaissance of Federalism


Bolick, Clint, Huffman, James, Environmental Law


I. INTRODUCTION BY JAMES HUFFMAN (**)

In the following article, Justice Clint Bolick addresses a subject that
should be of interest to environmental law students, practitioners and
regulators. "Federalism," writes Bolick, "is the fabric of our
constitutional tapestry." How particular political interests and
parties view that tapestry depends, observes Bolick, on who holds power
in our various governments. In pursuit of uniform national standards,
those holding power in the national government tend to discount the
scope of the states' powers, but when those same interests are in the
national minority they contend for federalism-based limits on national
authority and more expansive state and local powers.

The history of environmental regulation since the 1960s reflects this
opportunistic and unprincipled (Bolick calls it situational) approach
to constitutional federalism. As advocates for environmental protection
gained influence on the national political stage, they were able to
persuade Congress to enact an assortment of national environmental laws
relying heavily on Congress's power under the constitution to regulate
interstate commerce. A result was preemption of some state laws and
reduced reliance on common law remedies. Objections by some states that
these laws intruded on the reserved powers of the states were largely
unsuccessful in the courts. But the Trump administration's effort to
roll back many of these national laws has led to a newfound interest
on the part of environmental advocates in state and local regulation.

And that, argues Bolick, is a promising reminder of the founders'
wisdom in establishing federalisms vertical separation of powers.
Although state powers have been steadily eroded over the last century,
the shifting political consequences of a powerful national government
have helped sustain bipartisan support for the preservation of
significant powers in the state governments. No doubt Bolick would
prefer a more principled, less situational, stance on the vertical
separation of powers from both ends of the political spectrum, but he
is a realist as were those who designed the federal system more than
two centuries ago. The founders conceived federalism as one of many
structural restraints on the abuses of power that otherwise arise,
inevitably, from political factionalism.

Federalism debates are often framed as federal power versus states'
rights. But Justice Bolick reminds us that it is people, not states,
that possess rights. Three examples of what Bolick calls
"civil-disobedience federalism" underscore the importance of federalism
to individual liberties. Recent state initiatives with respect to
sanctuary for immigrants, legalized marijuana and the right to try
experimental drugs all are driven by concerns for individual freedom.
Similar concerns for the rights of individuals arise from both
environmental degradation and environmental regulation. Justice
Bolick's article suggests that greater reliance on state and local
governments, what he calls the "laboratories of democracy," can benefit
both freedom and the environment.

II. THE RENAISSANCE OF FEDERALISM

What an honor to deliver this evening the annual lecture in honor of my long-time friend, Jim Huffman. Jim defines the term "renaissance man." I cannot imagine anyone having a bigger impact on a law school, with a career spanning four decades as a professor, dean, and founder of the environmental and natural resources program. And as far as I can tell based on his recent productivity, I think he's only about halfway through that career, notwithstanding this thing he calls retirement. His scholarship encompasses constitutional, natural resources, environmental, water, and private property rights law. He is widely published and has taught in such wondrous places as Greece, Guatemala, and New Zealand. About the only blemish I am aware of in an otherwise storied career is when some people who must not have liked Jim very much put him up for the U. …

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