Federalism and Interstate Environmental Externalities

Abstract

The central purpose of this Article, particularly in light of my prior work, is to refocus the attention of federal environmental regulation. Of the two most prominent reasons for vesting responsibility for environmental regulation at the federal level, the race-tothe- bottom rationale is analytically unsound, despite the fact that much of the legal regime is structured to redress this asserted evil. In contrast, the rationale for federal regulation premised on the problem of interstate externalities is analytically unimpeachable but has not been effectively redressed in the current pollution- control scheme. At a time when federal environmental regulation is under fierce political attack, it is critical to define clearly what tasks can best be accomplished at the federal level and to ensure that the resulting regulatory scheme in fact accomplishes those tasks. This Article shows why a great deal more attention needs to be paid to fashioning an effective federal response to the problem of interstate externalities.