Fractal Federalism: Evolving National-State Relations in U.S. Environmental Law
Lee P. Breckenridge
The national environmental legislation of the 1970s in the United States brought sweeping changes to governmental mechanisms for addressing environmental problems. Under laws enacted through the mid-1960s, states largely retained independent authority to regulate pollution and to address other environmental matters within their borders as they saw fit, while the national government played a secondary, though growing, role. 1 By 1970, however, attention had shifted to the national government for solutions to many of the pressing environmental problems facing the country.
The inadequacies of state law in coping with the widening environmental impacts of an increasingly industrialized and environmentally destructive economy had become apparent. State agencies lacked adequate funding, expertise, and legal powers. Transboundary water and air pollution conspicuously eluded the control of state authorities. Competition among states for private investments also appeared to undermine the resolve of state authorities to take action on environmental issues ( U.S. Senate 1982, 38-43; Butler 1982).
The Clean Air Act Amendments of 1970, 2 the Federal Water Pollution Control Act Amendments of 1972, 3 the Resource Conservation and Recovery Act of 1976, 4 and the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 5 with a host of other national environmental statutes, 6 marked a decade of strong centralization of authority. The specific arrangements between federal and state governments varied among the different statutes, from preemption of state authority to joint administration of programs. Most of the new laws did not wholly override state laws, but drew state environmental protection programs into the service of centrally articulated national goals.
This paper first highlights some key legal requirements of national environ-