Abstract
Although 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 president. At present time, however, political branches of 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 federal system. Even more remarkable is re-entrance of Supreme Court into arena in which 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 Court's intention to be involved in boundary-marking enterprise at a fundamental level not witnessed since 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 dilemmas in boundary-marking with respect to federalism policy and its effect on intergovernmental relations as well as area of environmental regulation. Here too, federal courts play a major role. State and local governments are dealing with a major shift in environmental management responsibilities. Environmental mandates have been, and still are, moving from federal level to state and local levels (Advisory Commission, 1990; Zimmerman, 1992). This phenomenon has had a major impact on environmental management and policy in United States (DiLorenzo, 1993). Many disputes concerning which government entities have responsibilities and authority for environmental programs are decided in 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 impact of court decisions on federalism and intergovernmental relations in environmental management and policy. The purpose of this article is to examine how courts define various roles in federal system in environmental area and to analyze 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 various circumstances and outcomes in which courts have dealt with changing environmental management issues. This topic is important largely because of changes in environmental regulation since Environmental Protection Agency (EPA) was created 25 years ago. As United States initially attempted to address environmental issues comprehensively, much environmental regulation was centralized. In 1970, EPA wrote regulations, set standards, issued permits, and did most of 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 states were characterized by 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. …
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