Federalism and Environmental Regulation: A Public Choice Analysis

Abstract

This Article challenges the influential claim that primary responsibility for environmental regulation should be assigned to the federal government because public choice pathologies cause systematic underrepresentation of environmental interests at the state level. The Article first disputes the theoretical argument by advocates of federal regulation who claim that environmental groups are less disadvantaged at the federal level because of economies of scale in organization. The relevant question, instead, concerns the relative effectiveness of environmental and industry groups at the federal and state levels. The Article casts doubt on the plausibility of the conditions under which federal regulation systematically benefits environmental groups. More generally, the public choice account on which supporters of federal intervention rely views environmental regulation as the product of a clash between environmental interests seeking more stringent standards and industrial interests seeking less stringent standards. This account, however, has little explanatory power. More compelling public choice theories do not point in the direction of federal intervention. Professor Revesz then musters empirical data to challenge the view that states are ineffective environmental regulators. He shows that before the era of extensive federal involvement, which began in 1970, states had in fact made great strides with respect to those air pollution problems that were reasonably well understood. Moreover, at present, states are undertaking significant environmental protection measures that go well beyond what the federal government requires. The Article attempts to explain why some states have taken the lead with respect to protective environmental measures, while the efforts of other states have lagged. By comparing the regulatory actions of the states with the voting records of their members in the U.S. House of Representatives, it suggests that the differences stem from different levels of preference for environmental protection rather than from public choice pathologies.