STATES-FEDERALISM GENERICDDI 2021

States CP

Generic States CP

1NC – States CP The states and relevant sub-federal entities should uniformly [plan].

The state level is more effective in water policy than the federal levelOrmesher 17 – James Harrison Ormesher, University of Mississippi, “Examining Federalism in American Water Policy: Taking Stock of a Modern Issue”, May 2017, https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1418&context=hon_thesisAt the state and local levels, water policy mostly concerns itself with issues of supply and the allocation of water resources. This is particularly effective , as compared to the federal level, states have higher visibility to the needs of their constituency, and therefore, an ability to adapt more quickly to solve crisis in their jurisdiction. Additionally, more direct ties to their constituencies create a higher level of accountability , and visibility for developing policy to efficiently manage the resource. The evidence for state and local government’s ability to quickly adapt to meet the needs of their constituents can be seen in various places.A prime example of this is as water scarcity has begun to impact communities, City governments have worked to develop innovative solutions to these problems. In areas such as Texas and Colorado, cities have turned to waste water reclamation to meet the needs of their citizens (Atkins, 2014). Additionally, as surface water has become polluted , cities have turned to aquifers for clean water (Schlager, 2006). Physical proximity and a limited scope of responsibility allow for a deeper understanding of the problems a population faces. This results in nuanced solutions to these problems. Similarly, a direct line of accountability to the constituency drives policy makers to seek these solutions in order to gain reelection . This strength has been highlighted as states have taken on increased roles in water policy during devolvement, and the federal government equips states with blocked grants (Botsch, 2008). However, state governments also seem to suffer as a result of direct visibility to a particular constituency.

States solve best and create a race to the top for more effective policyKonisky and Woods 18 [David M. Konisky, Indiana University. Neal D. Woods, University of South Carolina. Environmental Federalism and the Trump Presidency: A Preliminary Assessment. The Journal of Federalism, volume 48, number 3, pp. 345-371]By contrast, advocates of state level control emphasize the inefficiency and rigidity of national standards , arguing that one-size-fits-all solutions do not account for important differences in state circumstances , such as varying industrial compositions , citizen preferences , and background environmental conditions (Adler 2005; Revesz 1992). State governments , it is argued, are more knowledgeable about their local circumstances and can therefore tailor solutions to their unique situations (Butler and Macey 1996). In some circumstances, there may even be competitive advantages to raising environmental standards , and regulatory pressure across states to ratchet up standards in a process referred to as "race to the top" (Vogel 1998). Proponents of subnational authority also highlight that empowering state governments with more responsibility fosters policy experimentation and innovation , creating the potential for the best ideas to diffuse to other states (Daley and Garand 2005; Engel 2006; Sapat 2004).

Fed Follow On – Deference Fed follows on – Deference is created by the CWAFischman 5 [Robert L. Fischman; 2005; Distinguished Professor of Law at the University of Indiana-Bloomington, Adjunct professor at the Indiana University School of Public and Environmental Affairs; "Cooperative Federalism and Natural Resources Law," New York University Environmental Law Journal, Vol. 14, No. 1, p. 203-204] |Trip|c. Federal Deference to State ProcessFederal deference to state process is created when legislation specifies that a state policy, standard, or plan, if adopted in accordance with certain procedures, will be employed by the federal government in its own national decisions. While procedural favoritism gives states an advantage over other stakeholders in asserting their interests in federal decision-making, the third category, federal deference, provides greater assurance that the federal government will actually comply with the state position.The best example of this approach to cooperative federalism is the Coastal Zone Management Act's ("CZMA") consistency criterion.' 0 7 The CZMA provides funding and guidelines for states to use in developing coastal zone management plans. 08 Once the National Oceanic and Atmospheric Administration approves a state's plan, all activities authorized or carried out by federal agencies that affect the coastal zone must be consistent (to the maximum extent practicable) with the state's plan.'0 9 Federal licenses, leases, and permits are covered by the consistency criterion,110 which gives the state a great deal of leverage to condition proposed projects by insisting on modifications necessary to achieve consistency with state specifications.The same kind of state power to condition or seek denial of federal permits exists under section 401 of the CWA . Though it is administered by the U.S. EPA, the CWA contains many "natural resources" provisions seeking to protect ecological resources. 1 2 Under section 401, applicants for federal discharge permits must receive certification from the state that the proposed project would not result in a violation of state water quality standards.'1 3 States may condition their certifications on requirements to assure compliance with fish conservation concerns in water quality standards. In 1994, the Supreme Court upheld the statutory right of Washington State to condition the issuance of a federal hydroelectric permit on bypass flows, in order to ensure that salmon runs on the Dosewallips River would not be adversely affected by the construction of a dam. 114Compared to the consistency provision of the CZMA, the CWA 401 certification is more deferential to the state because it is not conditioned on practicability . But both represent significant influence that states can and do assert upon national resource management programs. They are models of cooperative federalism that assure states a major role in federal permits and projects.

Fed Follow On – Environmental Justice Fed looks at the States for Environmental JusticeBonorris 10 [Steven Bonorris; 2010; Associate director for Research at the Center for State and Local Government Law and Adjunct Assistant Professor of Law at UC Hastings; Nicholas Targ; “Environmental Justice in the Laboratories of Democracy,” Natural Resources & Environment Journal, Vol. 25, No. 2, p. 44] |Trip|Environmental Justice (EJ) is a term that captures a civil rights movement, a normative goal of distribu- tional fairness and community empowerment, as well as a broad set of laws, regulations, and initiatives that seek to address disproportionate and adverse environmental conditions in minority and low income communities. In the first half of 2010, the federal government re invigorated the United States Environmental Protection Agency's (EPA's) Environmental Justice civil rights programs with a particular eye toward the states , through efforts such as the State Environmental Justice Cooperative Agreement (SEJCA) program. EPA, State Environmental Justice Cooperative Agreements, avail- able at www.epa.gov/compliance/ej/grants/ej-sejca-grants.html. SEJCA intends to "promote environmental justice in state government activities and to advance strategies that result in improvements in public health and the environment.

Solvency – Generic Only States can solveBlack et al. ‘20 (Black Jennifer R., Cherokee Nation Assurance contractor supporting the Public Health Law Program in the Center for State, Tribal, Local, and Territorial Support of the Centers for Disease Control and Prevention, Penn Matthew, director of the Public Health Law Program for the CDC, & Berman Laurel, Ph.D., national brownfields coordinator with the Agency for Toxic Substances and Disease Registry’s Division of Community Health Investigation., “Evolution of Federalism in Environmental Health: Federal, State, and Local Government Control”, 2020, Journal of Legal Medicine, 40:2, 195-228, DOI: 10.1080/01947648.2019.1696722, SA) EPA sets the national maximum pollution standards for regulated pollutants and creates national environmental regulations, but under delegation , states are the primary implementers of EPA standards and regulations and have their own laws and programs as a condition of that delegation. Because pollution starts locally , state and local governments can more easily oversee pollution in their jurisdictions. In fact, it would be nearly impossible for the federal government to know about every instance of local pollution and regulate effectively .98 As a result, states implement about 96% of environmental laws and policies.99 When EPA delegates the authority, states have the flexibility to determine the best way to implement and enforce EPA standards, and EPA retains only oversight authority.100 In these cases, states adopt environmental policies that mirror or exceed EPA’s standards and determine how to best implement them for their jurisdiction.101 For example, EPA’s State Indoor Radon Grant Program delegates radon risk reduction activities to state and tribal governments. Through this program, EPA provides grants to state and tribal radon programs that align with EPA’s strategic goals, like testing existing homes for radon and adopting building codes that require radon-reducing features.102 Additionally, with EPA delegation, states can implement their own laws as long as those laws are at least as stringent as the federal law.103 For instance, EPA sets legal limits on more than 90 contaminants for drinking water under the Safe Drinking Water Act, but states can also set their own standards if the standards are at least as strict as the EPA’s limits. Another example is California’s implementation of the Clean Air Act, which allows the state to implement stricter standards for automobile emissions requirements.104 In environmental and public health policy, where EPA has delegated authority to the states, federal requirements should encourage states to engage local governments, tribal governments, and the public in implementing EPA regulatory standards.105 State and local governments have a critical role in attaining the nation’s environmental and public health goals…

149 At the state and local levels, governments can introduce innovative regulatory measures and serve as venues to conduct public policy experiments.150 In conducting these experiments to improve policy, state and local governments become “laboratories of democracy.” 151 Though Justice Louis Brandeis coined the phrase laboratories of democracy to refer to states creating and implementing “novel social and economic experiments without risk to the rest of the country,” this term has been expanded to local governments as well.152 As an example of innovative measures, state and local governments have introduced various emissions-trading systems under the Clean Air Act. These systems have demonstrated effective measures and exposed issues in their designs, both of which can be used as lessons in developing other emissions policies across

the United States.153 States also have an important role in regulating cleanup of contaminated properties . These properties are regulated at the federal level under CERCLA, but CERCLA also leaves room for state regulation . For example, contaminated

properties that are not listed on the National Priorities List do not receive federal funding for cleanups, so states have cleaned thousands of sites with state funds.154 State action is also more prevalent where precautionary measures are necessary because of the potentially hazardous

nature of a chemical but where the federal government may not be in a position to act because of the uncertainty.155 Overall, state action across the country has increased to address the negative health effects that can come from exposure to hazardous chemicals .156 Specifically, states have proven to be leaders in redeveloping brownfields, which are properties for which “the expansion, redevelopment, or reuse …

may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant.” 157 States can serve as laboratories of

democracy in addressing brownfields because they can test various approaches to site remediation . For instance, states can implement different types of public participation or different metrics to determine the success of a program. These metrics could include whether health risks remain on the property or whether cleanup requirements were met and are maintained. Together, these state-level testing activities could help develop best practices for brownfields programs nationwide.158 Local governments have also been able to work to develop best practices, policies, and laws for addressing brownfields. For example, the city of Baraboo, Wisconsin, implemented policies and recommended actions from the city’s Comprehensive Plan, such as its recommendation to aggressively approach the redevelopment of contaminated properties along the Baraboo River.159 When state and local

governments test different methods for reducing pollution or remediating environmental contamination , the country can become better equipped to find the policies and laws that best protect public health and the environment.

States alone solve better – localized solutions necessary, one size fits all failsFowler & Birdsall ’20 (Luke, Associate Professor in Public Policy and Administration and Director of the MPA program at Boise State University, Chris, Assistant Professor of Public Administration in the School of Public Service at Boise State University “Does the Primacy System Work? State versus Federal Implementation of the Clean Water Act” Winter 2020 Publius: The Journal of Federalism, Volume 51, Issue 1, https://academic.oup.com/publius/article-abstract/51/1/131/5830831?redirectedFrom=fulltext//AF)Overachiever State Figure 6 indicates that, after an initial spike, Florida has much lower reported water-based toxic releases after primacy compared to what would be expected if EPA retained primacy. Unsurprisingly, these findings conform to expectations suggested by Lester (1995), as Florida is both highly

committed to the environment and has strong administrative capacity for addressing environmental issues. Unlike other states discussed here, SRF assessments provide little evidence to suggest what administrative strategies or techniques are contributing to these successes. For instance, in initial assessment reports, evaluators noted that the Florida Department of Environmental Protection (FDEP) followed recommended guidelines for data collection and enforcement, but that FDEP also needed to revise the enforcement guidance manual. Furthermore, in the twelve assessment categories used in round 2, Florida’s NPDES program only met expectations in four categories, and received no designations for “good practices.” Compared to the assessments discussed above, results for Florida are much more difficult to pin down to a specific set of issues occurring in the implementation process, but we surmise three potential explanations for why SRF reports do not directly account for FDEP’s success. First, deficits that EPA evaluators note may create a degree of flexibility that allows FDEP to better match resources to local challenges. In other words, FDEP is utilizing their localized knowledge and relationships to tailor programs to local conditions and create buy-in from target populations . Given that this system relies heavily on cooperation of regulated facilities, these results may indicate that FDEP has built collaborative relationships that are not readily

measured in EPA’s Clean Water Act evaluations. In comparison to Texas and Oklahoma, TDEQ and ODEQ are unlikely to outperform EPA, since those agencies are following EPA’s recommended course of action, but FDEP may be strategically diverging from recommendations when it allows for better program management. In fact, EPA notes that FDEP’s “inspection activity suggests strong presence in the field”

(EPA 2006, iv). This would indicate that inspectors are familiar with the unique challenges that exist within their jurisdiction, and work cooperatively with regulated facilities to overcome those challenges. Importantly, the game-playing that is inherent in the primacy framework may encourage FDEP to strategically diverge from national guidelines to negotiate with EPA for resources or program adjustments (Crotty 1987).

State jurisdiction key for localized implementation – one sized fits all failsFiorino & Weted ’21 (Daniel, Director at the Center for Environmental Policy at American University, Carley, doctoral student in the Department of Public Administration and Policy at American University, Environmental Federalism in a Polarized Era 1-8-2021 State and Local Government Review Vol 52 Issue 2 https://journals.sagepub.com/doi/abs/10.1177/0160323X20986225//AF)Why not centralize responsibility entirely in the national government? To start, as a practical matter, the federal government could not manage the regulatory demands of permitting, data collection, inspections, and enforcement on a national scale. State governments are geographically and politically closer to the industries they regulate, although this may be seen both as a strength and a weakness. They have a more direct knowledge of and interest in the resources and citizens they protect. State and local governments share the financial burdens of environmental protection with the federal government and generally may go beyond federal rules. Lowry defines the trade-offs, stating that “the weakness of environmental federalism is that “subnational policy-makers will respond only to private, not public demands, thereby skewing policies to the extent that outcomes no longer match national boundaries” (1992, 4). Its promise is that “subnational autonomy will provide flexibility, innovation, and efficiency by allowing policy-makers who are close to the scene to tailor policy efforts to local public needs” (4). Managing this balance is one of the core challenges of designing and implementing policy in a federal system.

The state level is more effective in water policy than the federal levelOrmesher 17 – James Harrison Ormesher, University of Mississippi, “Examining Federalism in American Water Policy: Taking Stock of a Modern Issue”, May 2017, https://egrove.olemiss.edu/cgi/viewcontent.cgi?article=1418&context=hon_thesisAt the state and local levels, water policy mostly concerns itself with issues of supply and the allocation of water resources. This is particularly effective , as compared to the federal level, states have higher visibility to the needs of their constituency, and therefore, an ability to adapt more quickly to solve crisis in their jurisdiction. Additionally, more direct ties to their constituencies create a higher level of accountability , and visibility for developing policy to efficiently manage the resource. The evidence for state and local government’s ability to quickly adapt to meet the needs of their constituents can be seen in various places.A prime example of this is as water scarcity has begun to impact communities, City governments have worked to develop innovative solutions to these problems. In areas such as Texas and Colorado, cities have turned to waste water reclamation to meet the needs of their citizens (Atkins, 2014). Additionally, as surface water has become polluted , cities have turned to aquifers for clean water (Schlager, 2006). Physical proximity and a limited scope of responsibility allow for a deeper understanding of the problems a population faces. This results in nuanced solutions to these problems. Similarly, a direct line of accountability to the constituency drives policy makers to seek these solutions in order to gain reelection . This strength has been highlighted as states have taken on increased roles in water policy during devolvement, and the federal government equips states with blocked grants (Botsch, 2008). However, state governments also seem to suffer as a result of direct visibility to a particular constituency.

States have had and still have control over local water resourcesJeffery A. Ballweber, Water Encyclopedia, "Legislation, State and Local Water", No Date, http://www.waterencyclopedia.com/La-Mi/Legislation-State-and-Local-Water.html, JVH

State legislatures have considerable authority to develop and manage water. Legislatures realize that local governments and agencies need legal authority to tailor solutions to meet local water development priorities. Hence, over the years, states implemented numerous administrative approaches to water development and management. A historical perspective is helpful to identify general water development and management themes, as well as mechanisms for regional and local governments and agencies to cooperate with federal agencies. During the westward expansion of the United States, Congress adopted laws, policies, and programs for water development and management to encourage settlement and agriculture. State legislatures responded by delegating some of their water authority to regional or local governments and agencies. In many instances, regional county or local city governments would have significant roles in water activities because of their authority over land-use planning and zoning . For unincorporated rural areas, regional or local agencies were necessary to undertake reclamation and development projects. Some common agencies were: drainage districts to drain swamps and wetlands; levee boards or flood-control districts to provide flood protection; and irrigation districts to provide water for crops. Over time, these regional and local agencies frequently gained additional authority to pursue broader water management responsibilities. Frequently legislatures authorized additional new types of agencies such as water supply, treatment, or management districts or authorities, and soil and water conservation districts to meet emerging water issues. Often a formal statewide water policy would help guide and coordinate these agencies' activities. Legislatures commonly used two different approaches to create these new agencies. One method was to pass general legislation outlining procedures communities had to follow to create and set the boundaries for a specific type of agency, the agencies' duties and powers, and funding mechanisms. States control the majority of water systemsHughes 16 (Jeff Hughes, 10-19-2016, "Public vs Private: A National Overview of Water Systems," Environmental Finance Blog, https://efc.web.unc.edu/2016/10/19/public-vs-private-a-national-overview-of-water-systems/)The dynamic between public and private systems has always been interesting, especially in the case of water and wastewater systems. Public water systems are usually non-profit entities managed by local or state governments, for which rates are set by a governing board. On the other hand, private water systems can be for-profit systems managed by investors or shareholders. Though rates are monitored by a state’s public commission, private systems are not necessarily subject to this regulating board. Additionally, the difference between public and private is not always distinct, as we sometimes see in Public-Private Partnerships. In this post, we present some interesting facts and figures based on an analysis of national data on ownership of water utilities. The Safe Drinking Information System, or SDWIS for short, contains information on water utilities and systems located in the United States and incorporated territories. The database contains statistics on drinking water violations and associated enforcement history that reaches as far back as 1993. The EPA created SDWIS to keep track of drinking water information in accordance with the Safe Drinking Water Act of 1974, which implements technical and financial programs in order to protect public drinking water. In compiling state by state water system stats, I began to notice that not only do public water systems out-number private systems in most states, but they also serve an overwhelming majority of a state’s population compared to private systems. I chose to focus on data for Community Water Systems, or systems that supply water to the same population year-round, and therefore data is solely representative of these systems. Other water systems such as Non-Transient Non-Community Water Systems and Transient Non-Community Water Systems were not included in my analysis because these systems usually provide water services for half a year or less; these systems may or may not be relevant for your own search!

Solvency – Decentralization Good Decentralization solves best Hilary Sigman '14 [Hilary Sigman; ; 02-01-2014; "Decentralization and Environmental Quality: An International Analysis of Wa...: EBSCOhost"; No Publication; http://web.a.ebscohost.com.proxy.library.georgetown.edu/ehost/detail/detail?vid=0&sid=303baff0-6971-428a-a3af-dd5d17f128f8%40sessionmgr4007&bdata=JkF1dGhUeXBlPWlwLHVpZCZzaXRlPWVob3N0LWxpdmUmc2NvcGU9c2l0ZQ%3d%3d#AN=93985786&db=eih; accessed 7-12-2021 (nBrown)]Many countries are actively considering the appropriate level of government to conduct environmental policy . In the United States, recent Supreme Court decisions limit the fed eral gov ernment's authority to undertake environmental regulation. In the Furopean Union, the trend has been the reverse, with increased reliance on common or harmonized environmental policies. An extensive literature discusses the desirability of decentralization in provision of public goods and environmental quality. Several arguments from this literature would suggest an effect of decentralization on the level of pollution and on the amount of variation in pollution across jurisdictions within a country. The traditional model of Oates (1972) suggests increased interjurisdictional variation with decentralization because it allows jurisdictions to control their own pollution level s. Destructive regulatory competition, in the form of a "race to the bottom," would lower environmental quality with decentralization, but probably not increase variation across regions. Interjurisdictional free riding might give rise to higher levels of transboundary pollutants with greater decentralization, but not higher levels of local pollutants. Models with distributive and interest group politics also may have implications for the effects of decentralization. Thus, the net effects of decentralization are uncertain and provide an opportunity to evaluate the empirical importance of various concerns. Effects of decentralization on environmental policy and outcomes have begun to be documented in the empirical literature. List and Gerking (2000) and Millimet (2003) look at the net effect of changes over time in decentralization in the United States on policy outcomes; they find limited effects of the Reagan-era decentralization on air pollution and pollution abatement spending.' At a subnational level. Cutter and DeShazo (2007) examine an environmental policy that allows local governments to request control from the Califomia government. They conclude that heterogeneity across the localities plays a large role in the apparent effects of devolution on stringency under this program. Unlike earlier work, the current paper incorporates international experience with decentralization and examines both a local and a regional pollutant. In addition, this paper is the first to examine the relationship between decentralization and interjurisdictional variation in pollution, which provides an empirical test of the traditional model.^ For this study, data on water pollution in rivers derives from the U.N.'s Global Environment Monitoring System Water Quality Monitoring Programme (GEMSAVater). The pollutants studied are biochemical oxygen demand (BOD), which is transported far downstream, and fecal coliform, which has local effects and is thus less of a candidate for interjurisdictional free riding. The estimated equations model pollution levels and interjurisdictional variation in pollution as depending on a country's decentralization, other country characteristics, and characteristics of the monitoring location. The results suggest higher interjurisdictional variation in pollution levels in federal countries for both pollutants. Such variation supports the traditional view of Oates (1972) that decentralization allows better tailoring of policies to local conditions. The results do not support higher average levels of pollution with greater decentralization, as would occur with destructive regulatory competition.

States solve best – Federal overreach undermines state environmental policy with “one size fits all” regulationsJonathan H. Adler '20 - the inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, teaches courses in environmental, administrative and constitutional law. [Jonathan H. Adler; “Uncooperative Environmental Federalism 2.0” ; xx-xx-2020; Case Western Reserve University School of Law Scholarly Commons;; https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=3058&context=faculty_publications; accessed 7-12-2021 (nBrown)]The core architecture of federal environmental law was erected almost fifty years ago. Much has been learned about environmental protection and much has changed in the interim. While substantial progress has been made addressing many important environmental matters, serious environmental challenges remain, particularly in areas not targeted by existing environmental laws. Consequently, there are good reasons to question whether existing federal programs represent the best approach to contemporary environmental problems, particularly those administered by the EPA.16 One area ripe for reconsideration is the federal-state balance in environmental law. Concerns about federalism in environmental law have persisted since the 1970s, when Congress began enacting broad environmental regulatory statutes.17 In the mid-1970s, state governments resisted the EPA’s efforts to force more aggressive air pollution

regulation.18 In the 1980s, the Reagan Administration sought to lessen the burdens of federal environmental regulation, albeit with limited success.19 In the 1990s, private landowners and local governments sought relief from what they perceived as overweening and excessive federal environmental regulation.20 During the Obama Administration, state attorneys general and resource groups assailed ambitious environmental regulatory initiatives, such as the Clean Power Plan and a broadened definition of “waters of the United States” under the Clean Water Act. Given the history of opposition to federal environmental regulation, particularly among Republican constituencies, it is unsurprising that candidate Trump campaigned on a platform of limiting federal regulation and, upon his election, sought to appoint critics of such regulation to key administration posts.22 A common conservative critique of federal environmental law is that it is overly centralized. Under this view, the federal government does too much, and crowds out the opportunity for state governments and local communities to pursue their own environmental priorities. Distinctly local priorities, such as the management of local resources or land use, get subsumed by federal regulatory edicts. There is much truth to this critique, but it captures only part of the picture. Federal environmental statutes and implementing regulations centralize much environmental policy decision-making, including decision-making concerning distinctly local matters. As a consequence, many policy decisions that are more appropriately dealt with at the state or local level are made in Washington, D.C. At the same time, the federal government has failed to address those sorts of environmental problems for which federal involvement is most need and most appropriate. The result is a pervasive jurisdictional mismatch in federal environmental law, which undermines the more effective achievement of environmental policy goals.23 Federal environmental statutes and regulations govern many matters for which the costs and consequences of environmental policy decisions are localized. The argument for federal primacy in such matters is quite weak. Where the costs and benefits of environmental policy choices are known and confined to a given political jurisdiction, there is little reason to believe that transferring responsibility for making such choices to Washington, D.C. will produce systematically better results. Indeed, given the wide geographic, environmental, economic, and political variations across the country, there are many reasons to suspect that federal policy decisions concerning localized problems will actually be worse than those made by state and local officials. Localized knowledge is difficult to accumulate and deploy from a centralized administrative agency. Regional differences mean that federal policies will often fail to account for local particulars. As a consequence, uniform policies are likely to be over-protective in some areas, and under-protective in others. A policy that effectively reduces air pollution in one part of the country, such as New York City or Atlanta, may not work as well in parts of the country with different mixes of pollution sources, different topography, and a different climate. Further, the likelihood that “one size fits all” federal policies operate as “one size fits nobody” will only increase over time, as environmental measures experience diminishing marginal returns and regional variation becomes more important on the margin. Prioritization is necessary. Federal regulatory resources are necessarily limited. As a consequence, regulatory agencies can maximize the benefits of their regulatory efforts insofar as they concentrate or target their efforts where federal intervention is likely to do the most good, and the least harm. Accordingly, federal regulatory resources are best utilized if they are targeted at those areas where there is an identifiable federal interest or where the federal government is in a particularly good position to advance environmental protection, particularly given available alternatives. Federal regulatory agencies will often have greater scientific and technical expertise than their state and local counterparts, but this does not necessarily translate into superior policymaking. The technical expertise necessary for identifying various trade-offs at the margin does not translate into a superior ability to determine which trade-offs should be made, particularly insofar as such choices implicate subjective value preferences about how to prioritize competing goods when resources are scarce. Should marginal resources be devoted to controlling emissions of ozone precursors, limiting nutrient runoff into local streams, ensuring proper remediation of an abandoned waste site, or expanding access to health care or nutritional programs? Such choices necessarily implicate normative concerns that are beyond any scientific or technical analysis. Superior expertise certainly supports an argument that federal agencies should assist state and local policymakers and help ensure that environmental policy decisions are more informed, but not that state and local policy choices should be made in Washington, D.C. One prominent justification for federal environmental regulation of localized pollution concerns is that the lack of a federal “floor” could lead to a destructive “race-to-the-bottom,” in which states adopt suboptimally lax environmental protections in a futile effort to attract off-setting levels of economic investment.24 As President Richard Nixon warned in 1970, without stringent federal environmental standards, “states and communities that require such controls find themselves at a . . . disadvantage in attracting industry, against more permissive rivals.”25 The race-to-the-bottom theory presumes that interjurisdictional competition creates a prisoner’s dilemma for states. Each state wants to attract industry for the economic benefits that it provides. Each state also wishes to maintain an optimal level of environmental protection. However, in order to attract industry, the theory holds, states will lower environmental safeguards so as to reduce the regulatory burden they impose upon firms. This competition exerts downward pressure on environmental safeguards as firms seek to locate in states where regulatory burdens are the lowest, and states seek to attract industry by lessening the economic burden of environmental safeguards. Because the potential benefits of lax regulation are concentrated among relatively few firms, these firms can effectively oppose the general public’s preference for environmental protection regulation. This will lead to social welfare losses even if environmental harm does not spill over from one state to another. The result, according to the theory, is the systematic under-

regulation of environmental harms, and a need for federal intervention.26 The race-to-the-bottom theory may have had some basis in the 1960s and 1970s, but there is little reason to believe that this dynamic inhibits state regulatory efforts today, particularly given how aggressive many states are in environmental policy. Empirical evidence that states race to relax their environmental regulations in pursuit of outside investment is decidedly lacking. If the prospect of interstate competition discourages state-level environmental regulation, it is hard to explain why state environmental regulation often preceded federal intervention and why

many states adopt more stringent measures than federal regulations require. Numerous studies have been conducted

attempting to determine whether a race-to-the-bottom can be observed in the context of environmental regulation, and they have generally failed to find any evidence that environmental quality worsens when states are given more flexibility to set their

own priorities.27 Indeed, some studies have found precisely the opposite: that when states have more flexibility to set their own environmental priorities they increase their efforts.28 None of the above should be taken as an argument against all federal environmental regulation. For just as the federal government is overly interventionist in localized environmental concerns, the federal government is unduly absent in areas where a federal presence is most necessary. That is, the undue centralization of some environmental concerns co-exists with substantial federal abdication from concerns the federal government should be addressing. The federal government devotes relatively little of its regulatory resources on those matters for which the federal government possesses a comparative advantage and abdicates its responsibility to provide the data and knowledge base necessary for successful environmental regulation at all levels of government. It is often remarked that environmental problems do not respect state borders. This is unquestionably true, and the observation provides ample justification for federal measures to address transboundary pollution problems.29 Where pollution or other environmental problems span jurisdictional borders there is less reason to believe state and local jurisdictions will respond adequately. Consider a simple transboundary pollution problem involving two states, A and B. When economic activity in State A causes pollution in State B,

State A is unlikely to adopt measures to prevent the resulting environmental harm because it would bear the primary costs of any such regulatory measures, without capturing the primary benefits. Put simply, State A is unlikely to impose costs on itself to benefit State B. Absent some external controls or dispute resolution system, the presence of interstate spillovers can actually encourage polices that externalize environmental harms, such as subsidizing development near jurisdictional borders so as to ensure that environmental harms fall disproportionately “downstream.” Policymakers in State B may wish to take action, but they will be unable to control pollution created in State A without State A’s cooperation. Even where polluting activity imposes substantial environmental harm within State A, the externalization of a portion of the harm is likely to result in the adoption of less optimal environmental controls. Despite the need for federal involvement to help protect downwind and downstream jurisdictions from their polluting neighbors, interstate spillovers have been largely an afterthought in federal environmental law. Of all the pages of the U.S. Code devoted to environmental protection, only a small portion focuses on the control of interstate pollution.30 Worse, what provisions exist have (until recently) rarely been invoked, and even more rarely invoked due to federal initiative. Downwind states have been more aggressive at seeking to control interstate spillovers than has the federal government.31 Global climate change is perhaps the most pressing environmental concern of the twenty-first century. As a global phenomenon, climate change does not respect national boundaries, let alone those of the individual states. At the same time, there is little that any individual state can do to influence greenhouse gas (GHG) concentrations in the atmosphere.32 This is a policy area in which the federal government is clearly better positioned than state governments to have an influence, and yet no portion of federal environmental law enacted by Congress squarely and expressly authorizes regulation of GHG emissions. Insofar as the federal government has legal authority to regulate here, it is only because it was dragged to court by, among other litigants, individual states.33 The problem is not that the federal government does too much, or that it does too little. Rather, the problem is that the federal government does too much of the wrong things, and too little of the right things, to maximize the effectiveness of the federal government’s environmental protection efforts.

State level action allows for more innovation and tailored solutions Konisky and Woods 2018 (David M, Associate Professor in the School of Public and Environmental Affairs, Neal D, Ph.D. in 2003 from the University of Kentucky. He teaches courses on public policy and public administration. Research focuses on how political and administrative institutions affect policy outcomes, especially in the areas of environmental policy and regulation, “Environmental Federalism and the Trump Presidency: A Preliminary Assessment”, 20 April 2018, The Journal of Federalism, Volume 48, Issue 3, https://doi.org/10.1093/publius/pjy009 // JK ) As it relates to U.S. environmental policy, debates over federalism usually focus on the question of which level of government—federal or state—should take a leading role.1 Advocates of a strong federal role typically argue that there is a need for uniform standards across the country, and that decentralized authority is likely to lead to inefficient regulation (Levinson 2003). National standards, proponents argue, provide a baseline level of protection, and mitigate concerns that states, left to their own devices, will be unwilling to impose pollution abatement costs on firms in fear that they will respond by relocating to lower regulation states. If all states behave strategically in this way, this could result in

downward regulatory competition, and potentially a “race-to-the-bottom” (Konisky 2007; Woods 2006a). Proponents of national-level control also point to the ability of the federal government to potentially better manage interstate spillovers (Konisky and Woods 2010, 2012a; Monogan, Konisky, and Woods 2017) as well as the ability to capture economies of scale in what is often technically-challenging decision-making (Esty 1996). By contrast, advocates of

state level control emphasize the inefficiency and rigidity of national standards, arguing that one-size-fits-all solutions do not account for important differences in state circumstances, such as varying industrial compositions, citizen preferences, and background environmental conditions (Adler 2005; Revesz 1992). State governments, it is argued, are more knowledgeable about their local circumstances and can therefore tailor solutions to their unique situations (Butler and Macey 1996). In some

circumstances, there may even be competitive advantages to raising environmental standards, and regulatory pressure across states t o ratchet up standards in a process referred to as “race to the top” (Vogel 1998). Proponents of subnational authority also highlight that empowering state governments with more responsibility fosters policy experimentation and innovation, creating the potential for the best ideas to diffuse to other states ( Daley and Garand 2005; Engel 2006; Sapat 2004). Many of these arguments, of course, are not unique to the

environmental policy domain. Ongoing debates over health care reform, social welfare programs, education, and other policy areas often involve disputes about the appropriate role of the federal government versus state governments. Complicating matters further is the fact that beliefs about where within the U.S. federal system authority should rest largely fall along common political lines; with some exceptions, Democrats tend to favor national level control for environmental protection, whereas Republicans tend to prefer state level control. These elite level differences are generally mirrored by public perceptions (Konisky 2011). For these reasons, policy decisions about where to assign responsibility for environmental protection can be just as politically contentious as decisions about

which policy instruments to employ (e.g., regulations, market-based mechanisms, etc.) or what performance standards to set. In practice, the choice at hand for policymakers is usually not a binary one—federal or state—but, rather a matter of emphasis. The current system of U.S. environmental protection relies on a model of shared responsibility across levels of government. Most often, the federal government (i.e., the EPA) sets national standards, which are then implemented by state government agencies. This arrangement is formalized through a process of delegation, where the EPA authorizes, or gives primacy, to state governments to implement federal programs (Crotty 1987; Woods 2006b). This is the basic structure of most environmental statutes, such as the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and the Resource

Conservation and Recovery Act (the Endangered Species Act and the Superfund program are notable exceptions). States are empowered to set standards above the national level, but they may not go below, thereby providing a baseline level of

protection across the country.2 The EPA retains the right to de-authorize state management of programs if they find them to be deficient, although in practice this rarely occurs. According to the Environmental Council of the States, around 96 percent of the programs that could be delegated to the states have been (Environmental Council of the States 2017). This statutory framework presumes a collaborative approach, whereby the federal government and state governments divide responsibility, but work in partnership. To be effective, this cooperative federalism approach requires

not just coordination, but high levels of intergovernmental trust (Scheberle 1997). In practice, the precise nature of the federal-state relationship historically has varied depending on the political context, and whether the federal government’s policy priorities coincide or diverge with those of specific states. Moreover, over time presidential administrations have had different notions about where the most authority should rest—centrally with the EPA, or decentralized to the states.

Solvency – Fed Bad Federal regulations over state environmental jurisdiction cause crowding out and undermine local regulationsJonathan H. Adler '07 - the inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, teaches courses in environmental, administrative and constitutional law. [Jonathan H. Adler; ; xx-xx-2007; "When Is Two a Crowd? The Impact of Federal Action on State Environmental Re...: EBSCOhost"; No Publication; http://web.a.ebscohost.com.proxy.library.georgetown.edu/ehost/detail/detail?vid=0&sid=9656e524-2b6d-40cf-9c43-48731b95b71f%40sdc-v-sessmgr01&bdata=JkF1dGhUeXBlPWlwLHVpZCZzaXRlPWVob3N0LWxpdmUmc2NvcGU9c2l0ZQ%3d%3d#AN=502537105&db=ofm; accessed 7-12-2021 (nBrown)]    A second potential negative indirect effect of federal regulation on state regulatory choices is crowding out. This occurs because federal regulation may serve as a substitute for state-level regulation, thereby reducing the benefits of adopting or maintaining state-level protections. Insofar as voters in a given state demand a certain level of environmental protection, there is no reason to expect states to duplicate federal efforts when a federal program satisfies that demand, particularly if a state has not already created such a program. If the federal floor is greater than or equal to the level of environmental protection demanded by a state's residents, that state has no reason to adopt environmental regulations of its own once the federal government has acted. To the extent that this effect occurs, it is separate from--perhaps even in addition to--the signaling effect described above.    The claim here is not simply that states regulate less than they would absent federal regulation--although this claim is almost certainly true. Rather, the claim is that some states that would adopt regulations more protective than the federal floor, absent the imposition of federal regulation, have not done so due to federal regulation and may not do so in the future. If this hypothesis is correct, the net effect of federal environmental regulation in at least some states could be less environmental protection than would have been adopted had the federal government not intervened.    To see how this could occur, recall that the demand for environmental regulation in any given jurisdiction tends to increase over time as wealth, technical capability, scientific knowledge, and environmental impacts increase.(FN131) In any given state (as in the nation as a whole), there is an initial period ("Period A") during which the demand for a given type of environmental protection is relatively low. The costs of adopting environmental regulations in this period are greater than the benefits of adopting any such protections. These costs include the costs of developing, drafting, and passing legislation; the costs of creating a new policy program, drafting and implementing regulations, defending the regulations from any potential legal or administrative challenges, creating a means to monitor and enforce regulatory compliance; and so on. In addition, there are opportunity costs of devoting state resources and political capital to the cause of environmental protection as opposed to some other policy goal.    As discussed earlier, the demand for environmental protection has tended to increase over time along with increases in living standards.(FN132) At the same time, increases in technical knowledge and administrative efficiency may lower the costs of a given regulatory program. Eventually, a state will enter a second period ("Period B") in which the benefits of a given environmental regulatory program are greater than the costs of initiating, implementing, and operating such a program. Absent any federal interference, the hypothetical state will not adopt environmental regulations in Period A, but will adopt such regulations in Period B. See Figure 3. This is the environmental transition discussed in Part I. In Period A, the demand for environmental protection is insufficient to justify the costs of implementing environmental protection measures. By Period B, however, the demand for environmental protection has risen due to increases in wealth and knowledge, among other factors. At the same time, increases in technical capacity and scientific understanding have reduced the cost of adopting environmental protections. As a result, in Period B a state will adopt Q, amount of environmental protection.(FN133)    The timing of Period A and Period B will vary from state to state. This is clearly the case as different states have enacted different environmental regulatory measures at different times--some before the adoption of federal environmental regulation, some after, and some not at all. Looking at the history of various environmental concerns, such as air quality, water quality, or wetlands, it is clear that many states moved from Period A to Period B for these environmental concerns at various times prior to the onset of federal regulations in the 1970s. In many other states, however, a federal regulatory floor was adopted before the onset of Period B.    For states that went through their environmental transition and entered Period B prior to the enactment of federal environmental protection, whether the adoption of a federal regulatory floor increased the aggregate level of environmental protection in that state depended upon whether preexisting state policies offered greater or lesser levels of protection than the relevant federal policies. For states in which the onset of Period B begins after the adoption of federal regulations, the enactment of a federal regulatory floor will, at the time of enactment, increase the aggregate level of environmental protection in that state. However, this may not be the case over time. In states that desire a greater level of protection than that provided by the relevant federal regulations, it is not clear that the existence of the federal regulatory floor will result in an equal or greater level of protection than would be adopted were it not for the federal regulations. This is because federal regulation will, to some extent, act as a substitute for state regulation. As a result, the adoption of federal regulation has the potential to reduce the demand for state regulation and, in some instances, even result in less aggregate regulation in a given state than would have been adopted absent federal intervention. In short, federal regulation can crowd out state regulation.    The potential for such a crowding-out effect is illustrated in Figure 4. The existence of federal regulation will reduce the demand for state regulation by an amount equal to the extent to which federal regulation is a substitute for state regulation of the same environmental concern (Q[subFReg]). This substitution effect will reduce the net benefit of adopting state-level environmental regulations from OCQ[subB] to OC'Q'[subB]. By reducing the net benefits of state-level environmental regulation in this manner, federal regulation has the potential to crowd out state-level environmental protections, even if the quantity of environmental protection demanded in the state is greater than that provided by the federal government. In such cases, the aggregate level of environmental protection will be lower with federal regulation than it would be without it.    A key assumption in this analysis is that there are significant fixed costs to the adoption of environmental protections (or, for that matter, any regulatory program). In some states, the additional benefits of adopting more stringent regulations on top of the federal requirements will more than offset the costs of adopting the new program. In these states the fixed costs of creating a program plus the operating costs are less than the expected marginal benefits from the additional margins of regulation. However, it seems likely that there are at least some states in which the aggregate net benefits of regulation at a level more protective than the federal standard are greater than the costs, but where the net benefits of additional regulation above the federal floor are less than the costs of adopting such additional regulations. In other words, if the net benefits of adopting state regulations alone (OCQ[subB]) are greater than the costs of adopting such regulations (CReg), but the net benefits of adopting such regulations given federal regulations are already in place (OC'Q'[subB]) are less than CReg, then the presence of a

federal regulatory floor will produce a lower level of environmental protection than were that floor not to exist.(FN134)    In this latter situation, one would not expect the state to regulate, even though the amount of regulation demanded in the given state is greater than that provided by the federal government. While federal regulation creates a floor, raising the regulatory baseline, it does not reduce the fixed costs of policy change. If anything, it may increase the opportunity costs for state policy-makers who devote their political capital to the environmental resource at issue rather than another environmental concern in which the federal government is not active. Federal regulation does, however, reduce the benefits of state regulation, and may do so significantly, making state-level initiatives less attractive to state policy-makers.    This theory is based on several premises and observations about the political economy of policy-making. First, environmental regulation, like most forms of regulation or other government action, experiences diminishing marginal benefits and increasing marginal costs. That is, the marginal environmental gains from each additional increment of regulation will tend to be less than the gains from the preceding increment. Thus, when the federal government establishes a floor, it has likely displaced those state efforts that would be most cost-beneficial. (This has the effect of shifting the demand curve for state regulation to the left, reducing the net benefits of state regulation.)    Second, the political process imposes substantial transaction costs on the creation (or elimination) of new government programs, and these costs are relatively fixed such that they do not vary with the size of the program in question. The most obvious example of such transaction costs is the existence of so-called "vetogates"(FN135) that determined minority interests can use to prevent the adoption of policies that enjoy majority support.(FN136) The existence of these vetogates means that many policy changes must have supermajority support before they are enacted--or at the very least require the expenditure of substantial amounts of political capital by their proponents (as a means of purchasing supermajority support).(FN137) The fragmentation of policy-making authority across branches of government adds to the difficulty of adopting new policies. These obstacles may also be particularly large in highly complex policy areas like environmental protection.(FN138)    Third, policy-makers are, to some extent, utility maximizers such that, all else equal, they will invest in policies that provide the greatest benefits and lowest costs to them.(FN139) Insofar as state policy-makers "share" responsibility for some environmental concerns with their federal counterparts, it may be difficult for them to secure the benefits of their efforts.(FN140) Relat-edly, information about the relative activities of the federal and state governments and their relative merits is costly to the average voter where both the state and federal governments are active. As a result, it may be difficult for policy-makers to get credit for all of the policies they promote or implement.(FN141) This is one reason why some argue that cooperative federalism undermines accountability. When both the federal government and the states are involved, it is more difficult for a voter to know who to credit or blame for a given policy.(FN142) Because it is easier for a state policy-maker to get credit for a policy when the state does not compete with the federal government in the provision of that policy goal, all else being equal, a state policy-maker will prefer to legislate where the federal government is less active.    One implication of the crowding-out effect is that it is possible that the adoption of a federal regulatory floor may result in lower aggregate levels of regulatory protection than had the federal government not entered the field at all. This potential is illustrated in Figure 5 below. As in Figure 2, which illustrated the signaling effect, States A and B initially have regulatory standards (Q[subAReg] and Q[subBReg], respectively) less stringent than the federal standard (Q[subFReg]), while State C has a regulatory standard (Q[subCReg]) greater than the relevant federal standard. Here, however, the demand for environmental regulation in each state is not static. Rather, the demand for regulation in State B is increasing over time as State B goes through its own environmental transition. Absent federal regulation, State B would eventually adopt a higher level of protection--a level of protection greater than that which would be adopted at the federal level. In this scenario, the adoption of a federal standard has the potential to signal to states to reduce their levels of protection. It may also discourage the adoption of even greater levels of protection in those states that go through their environmental transition after the adoption of the federal standard. This potential opportunity cost of federal regulation is no less important than the more observable effects illustrated in Figure 2.    When the crowding-out effect is combined with the signaling effect discussed above, the likelihood that federal regulation could result in a net decline in the aggregate level of regulatory protection increases. As before, adoption of the federal regulatory standard increases the aggregate level of regulation by a quantity equal to the sum of the difference between the federal standard and the lower state standards. The net benefit of the federal standard at any given point in time is this amount (Q[subFReg]-Q[subAReg]), less any reduction due to signaling (Q[subCReg-]Q[subFReg]), and the extent to which State B would have regulated absent federal action (Q[subBReg-]Q[subFReg]). Here the net effect of the federal standard will be the extent to which the increase in regulation in State A varies from the reduction in State C and regulation abandoned in State B. Stated as a formula, the net benefits of federal regulation equal: (Q[subFReg-]Q[subAReg]) - [(Q[subBReg-]Q[subFReg]) + (Q[subCReg]- Q[subFReg]]    Even if the adoption of federal regulation initially increased the aggregate level of regulatory protection, over time the level of protection might be less than it would otherwise have been. As more states go through their environmental transitions, the magnitude of this crowding effect could increase, unless federal regulatory standards are able to keep pace. Given the slow rate at which existing federal regulatory programs are reviewed and expanded, however, this is a questionable assumption.

Solvency – Permitting States can enforce permitting requirements and violations absent EPA involvementBallotpedia '17 - features encyclopedic articles written and curated by professional staff of editors, writers, and researchers, Ballotpedia is nonprofit and nonpartisan. [Ballotpedia; ; 02-xx-2017; "Implementation of the Clean Water Act"; Ballotpedia; https://ballotpedia.org/Implementation_of_the_Clean_Water_Act#Footnotes; accessed 7-14-2021 (nBrown)]Like other federal environmental statutes, the Clean Water Act includes provisions to address civil and criminal violations. Enforcement is shared by the EPA and states , though states generally have primary responsibility given their role in enforcing the discharge permit program and water quality standards. Additionally, the EPA has oversight authority over states and can intervene to bring direct action against private individuals, businesses, and organizations for violations if the agency believes a state has failed to take the necessary and

appropriate action or if a state requests EPA involvement. Civil enforcement involves EPA or state-initiated legal action to compel compliance with federal law and may involve fines or penalties leveled against private parties. Criminal enforcement, which is the sole purview of the federal government, involves criminal investigation and prosecution of deliberate and/or severe violations of federal environmental law. Some violations can result in jail time. Both types of violations are described below:[23]Civil violations do not take into account if the violator knew of the violated law or regulation, while criminal violations involve a level of intent. For example, a knowing violation can include a discharge of pollutants into a river without a permit. Civil violations are based on the preponderance of the evidence, which includes whether the presented evidence is convincing and more likely to be true than not. Defendants in civil suits can be found liable either following a trial or a mutually agreed-upon settlement with the EPA or state. If found liable or agreeing to a settlement, a civil defendant may face a monetary penalty or be required to correct the violation. [23] Criminal violations must be established beyond a reasonable doubt. If convicted or after a guilty plea, a violator may face monetary fines, be required to reimburse the EPA for cleanup costs, or be incarcerated. In all federal environmental laws outside statutes for toxic substances and pesticides, criminal violations are considered felonies.[23]

Solvency – NPDES Permits States have the power to issue NPDES permits per the CWAFrank 16 (Franks Richard, Professor of Environmental Practice, Director of the U. C. Davis School of Law’s California Environmental Law & Policy Center, “The Clean Water Act, Federalism, Big Money, and the California Supreme Court,” September 13 2016, https://legal-planet.org/2016/09/13/the-clean-water-act-federalism-big-money-and-the-california-supreme-court/)The case is Department of Finance v. Commission on State Mandates.  In that decision, a bare 4-3 majority of the Supreme Court held that the costs associated with conditions imposed by California’s Regional Quality Control Board on local agencies that operate storm drain systems under a state-administered federal permit must,

under the California Constitution, be reimbursed by the state.  In doing so, the Supreme Court imposed potentially multi-billion dollar liability on the state while simultaneously misperceiving the nature of the federally-mandated water pollution permit system administered by the State of California since 1972.  Even more alarmingly, the Court’s decision threatens the cooperative federalism principles   that   are inherent in the Clean Water Act’s regulatory program and incentivizes California’s abandonment of that program.To understand the Court’s decision and its implications, a bit of background is required regarding both the Clean Water Act permit program and the rather Byzantine state finance system that together form the underpinnings of the Department of Finance decision: The Clean Water   Act creates a federal water pollution permit (NPDES) system for the U.S. Environmental Protection Agency to administer.  But the Act also allows EPA to delegate that federal permit system to states willing to administer   it within their own borders .  California was the very first state to seek and obtain this delegated permit authority from EPA in 1972, mere months after Congress enacted the Clean Water Act.  One of California’s major incentives in doing so was to combine the NPDES permit program with California’s own, preexisting state water pollution permit system under the state’s Porter-Cologne Act.Meanwhile, after California voters dramatically limited local government’s ability to increase property taxes by enacting Proposition 13 in 1978, California cities and counties responded with a provision in a related, successful initiative enacted by voters a year later. The latter “Gann initiative” requires the State of California to reimburse local governments for the costs of any state-mandated new program or higher level of service. But that reimbursement requirement is subject to one key exception: the state is not required to reimburse local governments for the costs of any state law imposing on them “a requirement that is mandated by a federal law or regulation.” Fast forward to 2001. Los Angeles County, on behalf of itself and 84 SoCal cities, applied to the California Regional Water Quality Control Board for an NPDES permit to operate their local storm drainage systems, a.k.a. “municipal separate storm sewer systems” or “MS4.” The Regional Board issued the requested 5-year permit, subject to four conditions intended to “reduce the discharge of pollutants in storm water to the maximum extent practicable” within the local governments’ respective jurisdictions. Critically, the italicized language comes directly from the federal Clean Water Act. The local governments claim that the conditions, which collectively involve well over $1 billion in compliance costs over the life of the issued permit, filed an administrative claim seeking reimbursement from the state. They argued that the conditions constitute a state-mandated local program. The state countered by asserting that the conditions are part of a federal Clean Water Act mandate, and therefore not subject to reimbursement. After an administrative tribunal concluded that none of the imposed conditions were expressly required by federal law, the State of California sought judicial review. In its Department of Finance ruling, a divided California Supreme Court affirmed. The majority relied on the fact that federal law does not explicitly require the Regional Board to impose the specific permit conditions that it did. (Indeed, it is plausible to read the Court’s decision as making it impossible for the state to issue any MS4 permits containing conditions without triggering a reimbursable state mandate.) Additionally, said the Court “[t]here was no evidence that the state was compelled to administer its own permitting system rather than allowing the EPA [sic] do so under the CWA.”Justice Mariano-Florentino Cuellar wrote a vigorous dissent, in which two of his fellow justices joined.  Cuellar protested that the majority reached the wrong decision by asking the wrong legal question, while at the same time failing to give appropriate deference to both state and federal water quality regulators. Cuellar’s dissent notes that the Clean Water Act imposes a   general   performance standard for federal or state agencies issuing NPDES permits under the Clean Water Act: that the permittee reduce its pollution “to the maximum extent practicable .”  He observed that   regulators are and should be given broad discretion under   the CWA   to achieve that result via permit conditions.  That’s exactly what the state argued that the Board had done in issuing the permit at issue.  Equally important–and as noted by both the majority and dissenters–USEPA had submitted formal comments in the record before the Court indicating that the federal government agreed with the Regional Board that the challenged permit conditions were in fact   required   to meet the Clean Water Act’s “maximum extent possible” mandate. Which leads to the second defect in the majority’s decision, as aptly noted by the dissent: the former’s failure to give appropriate deference to both EPA and the Regional Board’s demonstrated expertise in administering “a complex federal statute governing regulation of the environment.” Justice Cuellar concludes his dissent by noting the profound, adverse policy implications of the Court’s decision: “[G]iven the nature of the relevant CWA provisions–and particularly the maximum extent practicable standard–it is wrong to assume that the conditions at issue in this case exceed what is necessary to comply with the CWA simply because neither the statute nor its regulations explicitly mention those conditions. The consequence of that assumption, moreover, risks discouraging the state from assuming cooperative federalism responsibilities–and may even encourage the state to withdraw from administering the NPDES.” The State of California has today formally asked the Supreme Court to reconsider its ruling in the Department of Finance case. Such motions are rarely granted by the Court. But this is the exceptional case warranting that exceptional action by the Court. The majority’s decision misreads California constitutional law, erroneously imposes potentially multibillion dollar liability on the State of California, and perversely incentivizes California to give back to the EPA a federal water pollution permit program that state regulators have administered efficiently and well for the past 44 years. Justice Cuellar’s dissent and the State of California’s petition for rehearing accurately identify both the legal defects in the Court’s decision and its profound, adverse public policy consequences. Let’s hope Cuellar’s judicial colleagues decide to reconsider the Court’s flawed decision.

Solvency – Jurisdiction CWA requires states to protect bodies of waterPifher 97 (Pifher Mark T., lawyer/partner in the Colorado Springs firm of Anderso, “The Clean Water Act: Cooperative Federalism?” Natural Resources & Environment, vol. 12, no. 1, 1997, pp. 34–38. JSTOR, www.jstor.org/stable/40923689)Federalism, as defined in Black's Law Dictionary, "includes interrelationships among the states and the relationship between the states and the federal government." Legal

scholars have concluded that the Clean Water Act (CWA), 33 U.S.C. §§ 1251 et seq., is based upon a " cooperative federalism " model. However, as the Supreme Court recently observed in United States v. Lopez, 115 S. Ct. 1624, 1626 (1995), quoting from the Federalist, No. 45, . . . the powers delegated by the . . . Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and undefined. There is no doubt about the ability of Congress to regulate activities affecting interstate waters; however, both the nature of federal authority over state actions and the reach of that federal authority into areas that are traditionally within the domain of the states are closely circumscribed . The states cannot be co-opted into carrying out a federal statutory scheme, New York v. United States, 505 U.S. 144 (1992), nor may the fed- eral government preempt the historic powers of the state absent a "plain statement" that such is the intent of Congress. Gregory v. Ashcroft, 501 U.S. 452 (1991). Back in 1972, section 101(b) of the Act, 33 U.S.C. § 1251(b), set the stage for the federal/state relation- ship under the CWA by clearly providing that it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce, and eliminate pollution, [and] to plan the development and use ... of land and water re- sources. . . . Nevertheless, under the present scheme of the Act, the states generally have a choice between acquiescing to federal proscriptions or ultimately facing the prospect of federal preemption. To be sure, today's approach was adopted to achieve legitimate goals. These goals included: the elimination of local "pollution havens;" establishment of a minimum floor of protection; and adequate consideration of the cumulative impacts of many individually insignificant actions that could negatively affect the quality of waterways. Yet the dominant federal presence found today goes well beyond what is necessary to achieve these goals. The historic relationship between the states and EPA under the Act and its other environmental counter- parts has been, at times, a strained one. The ongoing debate over the propriety of state "audit privilege" pro- grams is but the most recent manifestation of this ten- sion. Yet it is undeniable that the mood of the country, as reflected in Congress, has shifted at least temporarily to one favoring less federal interference. The Unfunded Mandates Reform Act of 1995, Pub. L. No. 104-4, and the Congressional Review Act, 5 U.S.C. §§ 801 et seq., are indicative of this sentiment. This article, however, is neither a warning to seek cover nor an argument for or against the merits of cen- tralized control versus state and local flexibility. In truth, the appropriate course, adjusted for accomplishments under the Act to date, may lie somewhere in the middle. Rather, this article merely attempts to identify those CWA provisions where friction is currently build- ing among the various levels of government. It would seem that only where states assert their authority is there still hope that future CWA legislative and regulatory strategies will continue to embody the "cooperative" portion of the federalism equation. The CWA is driven by a system of section 303 stream classifications and the water quality standards adopted to protect those classified uses. 33 U.S.C. § 1313. The standards are enforced through effluent limitations contained in section 402 National Pollutant Discharge Elimination System (NPDES) permits. 33 U.S.C. § 1342. These two provisions clearly highlight the federal/state interface. Under section 303, EPA has the authority to review, and where necessary, revise water quality standards as initially proposed by the state. Pursuant to section 402, EPA can determine if state permit programs meet minimum federal require- ments, with the authority to withdraw program approval (i.e., state delegation), if the state falls short in meeting its responsibilities. EPA can also veto individ- ual NPDES permits if EPA determines that the

effluent limits are not stringent enough. On a similar note, states can assume dredge and fill permit authority under section 404 of the Act, 33 U.S.C. § 1344, if EPA determines that the state program meets minimum statutory requirements, including the existence of state authority to ensure compliance with the "federally" established section 404(b)(l) guidelines at 40 C.F.R. part 230. Here too, EPA can withdraw program approval if the state fails to administer the program in accordance with federal mandates and can veto individual permits. 33 U.S.C. §§ 1344(i), 1344(c ).

The USFG has always deferred water to the states.Miller 2000 (Miller Clark R., graduated University of Wyoming College of Law, "Water Law - Wilderness Areas and Federal Reserved Water Rights: Unlimited Appropriation of Unallocated Water Endorsed by Idaho Court - Potlatch Corp. v. United States," Land & Water Law Review: Vol. 35 : Iss. 2 , pp. 375 - 394., 01-01-2000, https://scholarship.law.uwyo.edu/land_water/vol35/iss2/5)Congress has long deferred to local law and custom of western states in the arena of water allocation because of the

scarcity of the resource and its potential as a tool for economic development. As the United States Supreme Court noted in California v. United States in 1978, "[t]he history of the relationship between the Federal Government and the States in the reclamation of the arid lands of the

Western States is both long and involved, but through it runs the consistent thread of purposeful and continuous deference to state water law by Congress ." 12 The primary concern of western lawmakers and water users has been that assertions of federal authority over water rights on federal lands could disrupt settled expectations within the western states relying on a "first-come, first-served" system of water appropriation.,3 The federal reserved water rights doctrine is one of the exceptions to state water law deference and is at the core of the Idaho court's holding in Potlatch. Understanding the origins and evolution of the federal reserved water rights doctrine is essential to understanding the Potlatch decision. In addition, an overview of the purposes of the Wilderness Act of 196414 as well as previous attempts to apply federal reserved water rights to wilderness areas will help explain the issues confronted by the Potlatch court.

States have authority Craig 11 (Robin Craig, Associate Dean of Environmental Programs at Florida State University College of Law, “ADAPTING WATER FEDERALISM TO CLIMATE CHANGE IMPACTS: ENERGY POLICY, FOOD SECURITY, AND

THE ALLOCATION OF WATER RESOURCES”, “Environmental & Energy Law & Policy Journal, Vol 5, February 17 2011, ES) The Clean Water Act divides regulatory authority over water quality among two federal agencies, the U.S. Environmental Protection Agency (“EPA”) and the Army Corps , and the states and territories . The federal agencies oversee implementation of the Act, engage in permitting, and set water quality requirements when the states fail to do so. However, the states retain primary authority over water quality requirements and exclusive authority over nonpoint source regulation and waters that do not qualify as “navigable waters” under the Act. The Act also encourages states to take over permitting within their respective borders. The Act makes “the discharge of any pollutant by any person” unlawful, meaning that it is illegal for any person to add pollutants (broadly defined in the statute) to “the waters of the United States” or the oceans from “point sources,” defined as “any discernible, confined, and discrete conveyance,” without a permit. In addition, the Act establishes national goals that “the discharge of pollutants into the navigable waters be eliminated” and, in the interim and where attainable, that “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved . . . .” In federalism terms, the Act sets a federal “floor” for water quality degradation—the minimal water quality protections that dischargers and states must both observe. However, through their water quality standards, states remain free to impose more stringent water quality protections within their respective borders, and all dischargers—including the federal government—must observe these requirements. States often set their water quality standards to reflect local needs , such as drinking water, fish production, or sewage and industrial waste dilution .

Solvency – Jurisdiction – CWA States have the authority to place more stringent regulations over direct discharges specifically under the CWAEPA '20 [EPA; ; 07-13-2020; "Clean Water Act Section 401 Certification Rule"; Federal Register; https://www.federalregister.gov/documents/2020/07/13/2020-12081/clean-water-act-section-401-certification-rule; accessed 7-14-2021 (nBrown)]The CWA does not define what is an “appropriate requirement” of State law for purposes of adding conditions to a section 401 certification.[28] In interpreting this term, the Agency acknowledges the need to respect the clear policy direction from Congress to recognize and preserve State authority over land and water resources within their borders, see 33 U.S.C.

1251(b), and the Agency must avoid interpretations of the CWA that infringe on traditional State land use planning authority. See SWANCC, 531 U.S. at 172-73; Will, 491 U.S. at 65. One interpretation of this clause in section 401(d) could be that it authorizes the denial of certification or the imposition of conditions in a federal license or permit based on non-water quality-related impacts if those requirements are based on any existing State or Tribal law. Such an interpretation, however, is counterintuitive in a statute aimed at protecting the “chemical, physical, and biological integrity of the nation's waters.” For example, it is difficult to imagine what guiding principle would help one determine whether to import state labor law or professional licensing requirements into a section 401 certification; such requirements could arguably be relevant to a dam project, but mere relevance is not nearly sufficient to sweep these types of laws within the ambit of an environmental statute aimed at water quality. The CWA does not give EPA a clear basis to venture into such regulatory arenas, which (in the absence of clearly expressed congressional direction) are more appropriately reserved to the powers of the States , “powers with which Congress does not readily interfere.” Gregory, 501 U.S. at 461 (describing the “plain statement rule”).The Agency does not believe that Congress intended the phrase “any other appropriate requirement of State law” to be read so broadly. Instead, the ejusdem generis canon helps to inform the appropriate interpretation of the statutory text. Under this principle, where general words follow an enumeration of two or more things, they apply only to things of the same general kind or class specifically mentioned. See Wash. State Dept. of Social and Health Services v. Keffeler, 537 U.S. 371, 383-85 (2003). Here, the general term “appropriate requirement” in section 401(d) follows an enumeration of four specific sections of the CWA that are all focused on the protection of water quality from point source discharges to waters of the United States. [29] Given the text, structure, purpose, and legislative history of the CWA and section 401, and informed by important policy considerations and the Agency's expertise, the EPA interprets “appropriate requirement” for section 401 certification purposes to include those provisions of State or Tribal law that contain requirements for point source discharges into waters of the United States , including provisions that are more stringent than federal la w. See S. Rep. No. 92-414, at 69 (1971) (“In addition, the provision makes clear that any water quality requirements established under State law, more stringent than those requirements established under the Act, shall through certification become conditions on any Federal license or permit.”). In this respect, the EPA agrees with the logic of Justice Thomas's dissent in   PUD No. 1,  wherein he concludes that “the general reference to ` appropriate' requirements of State law is most reasonably construed to extend only to provisions that, like other provisions in the list, impose discharge-related restrictions . ” PUD No. 1, 511 U.S. at 728 (Thomas, J., dissenting). The Agency's interpretation gives meaning to Congress's decision to use the word “appropriate” in the phrase “any other appropriate requirement of State law set forth in such certification.”Consistent with the proposal, the final rule limits the scope of section 401 and the term “appropriate requirements of State law” to those requirements directly related to water quality. As discussed in greater detail in section III.E.2.b of this notice, the final rule definition of “water quality requirements” has been modified from the proposal, but does not stray from the core principle and focus of Title IV of the CWA—to protect the quality of waters of the United States from point source discharges.

Solvency – Jurisdiction – S401 Section 401 of the CWA grants states the authority to deny discharge permits and impose their own standards on pollutersPeter Kalicki, '21 – A JD candidate in environmental law at Harvard [Peter Kalicki,; ; 1-25-2021; "Section 401 of the Clean Water Act from Trump to Biden"; Harvard Law School; https://eelp.law.harvard.edu/2021/01/section-401-of-the-clean-water-act-from-trump-to-biden/; accessed 7-14-2021 (nBrown)]Under   section 401 of the Clean Water Act (CWA), any applicant seeking a federal permit or license for an activity that “may result in any discharge into the navigable waters” must also obtain a water quality certification from the state or authorized tribe with jurisdiction over the project area where a discharge could occur. This requirement aims to ensure that the proposed activity will not violate state and tribal water quality requirements, in addition to other requirements under the CWA. Section 401 recognizes that water quality standards are set at state and tribal levels; it provides a process for federal agencies to check in with states and have them certify that the project will not violate these standards and other requirements. Projects requiring section 401 certification include those needing federal NPDES permits under   CWA section 402 , federal dredge and fill permits under CWA section 404, FERC licenses (e.g. for hydropower facilities and natural gas pipelines), and permits under the Rivers and Harbors Act.States and tribes may grant, grant with conditions, or deny certification requests. If certification is denied, the related federal permit cannot be issued. The CWA mandates that certifying authorities must act “within a reasonable period of time (which shall not exceed one year) after receipt” of a certification request; otherwise, the certification requirement for that project will be waived. In 2019, the D.C. Circuit gave this waiver provision teeth in Hoopa Valley Tribe v. FERC, holding that the one-year period cannot be reset by the withdrawal and resubmission of certification requests.[1]In determining whether to grant certification, states and tribes consider whether the proposed activity satisfies effluent limitations standards, water quality standards, national standards of performance, toxic and pretreatment effluent standards, and “any other appropriate requirement of state [or tribal] law.” The Supreme Court has twice upheld the broad discretion of states making certification determinations. In   PUD No. 1 of Jefferson County v. Washington Department of Ecology, the Court held that a state can require a minimum stream flow

requirement in its certification.[2] In doing so, the Court decided that certifying authorities may use section 401 to impose conditions on “activities ” as a whole, not just on individual discharges . The Court confirmed this holding in   S. D. Warren Co. v. Maine Board of Environmental Protection, explaining that section 401 certifications are “essential in the scheme to preserve state authority to address the broad range of pollution.”[3]

CAFOs specifically are subject to section 401 NPDES permitting requirements under the CWAThe Clean Water Act '03 [The Clean Water Act; ; 2-12-2003; " EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM"; Electronic Code of Federal Regulations (eCFR); https://www.ecfr.gov/cgi-bin/text-idx?node=pt40.24.122&rgn=div5; accessed 7-14-2021 (nBrown)](a) Scope. Concentrated animal feeding operations (CAFOs), as defined in paragraph (b) of this section or designated in accordance with paragraph (c) of this

section, are point sources, subject to NPDES permitting requirements as provided in this section. Once an animal feeding operation is defined as a CAFO for at least one type of animal, the NPDES requirements for CAFOs apply with respect to all animals in confinement at the operation and all manure, litter, and process wastewater generated by those animals or the production of those animals, regardless of the type of animal.

Section 401 of CWA – gives states more power for water protection Rycewicz and Mensher 07 (Christopher Rycewicz and Dan Mensher, attorneys in environmental law, “Growing State Authority Under the Clean Water Act”, Natural Resources & Environment , Fall 2007, https://www-jstor-org.ezproxy.sfpl.org/stable/pdf/40924909.pdf?ab_segments=0%252Fbasic_search_gsv2%252Fcontrol&refreqid=excelsior%3Ac0948587ddf31e7b1787229c58e2a2e9, ES)In 1972, when Congress passed the Clean Water Act (CWA), it structured the programs embodied in the CWA on a "cooperative federalism" basis, which put states at the center of water-quality regulation. While the federal government establishes basic approaches and baselines, states have substantial leeway to address water pollution as they see fit . States set water-quality standards for all their waters, and many states have assumed control over pollution discharge permits. While these state roles tend to be well known, the CWA grants states another significant power that allows them to review federal licenses that might affect state waters. This power arises out of Section 401 of the CWA. Section 401 grants states far-reaching authority to influence federal permit s, particularly those licenses needed to operate dams and other energy facilities. As energy and climate issues continue to capture headlines, and many states

such as New York, California, and Oregon have begun taking action to address these issues, it is likely that states will use their Section 401 authority to increase their influence on otherwise solely federal processes . As a result, the federal licensing agencies and regulated entities will need to be active in building productive relationships with host states. The CWA provides that before any federal agency issues a license or permit for a project that may result in a discharge into a waterbody, the state where the discharge would occur must certify that the project will not violate its water-quality standards. Known as "401 certification," this section gives states an important role in determining how, and if, these projects will proceed. For example, the Supreme Court recently determined in S.D. Warren v. Maine Board of Environmental Protection, 126 S. Ct. 1843 (2006), a unanimous decision, that discharges from dams trigger Section 401 certification requirements. As a result, any time a dam operator requires a license or permit from the Federal Energy Regulatory Commission (FERC), it must also seek separate approval from the state in which the dam is located. The term "discharge" is quite broad; indeed, numerous courts have held that 401 is triggered when a project merely alters the potential volume, timing, or intensity of its discharge. Once Section 401 is implicated, states gain significant authority over the conditions on dam construction and operation. In certifying that a project meets its requirements, states may hinge their certification on the project meeting certain guidelines and adopting specific conditions. A state might, for example, withhold certification unless a hydroelectric plant agrees to maintain certain amounts of water in the down- stream river or limit the amount of dissolved oxygen in the dam's discharge. The conditions a state may require are not confined to the discharge itself. Indeed, the Supreme Court held in PUD No. I of Jefferson Cty. v. Washington Dept. of Ecology > 511 U. S. 700 (1994), that states may regulate the impacts of the project as a whole, so long as there is a discharge involved. Where, for instance, a dam removes water from a river, diverting it through turbines and discharging it downstream, a state has authority to examine and regulate the impacts of the water removal, not just of the discharge. As a result, once a dam triggers Section 401, states gain authority over the entire project and can require a host of actions and conditions as part of their certification. Section 401 not only gives states the authority to place conditions on a federal permit, it binds the federal agencies to those state decisions. Federal agencies are not allowed to disregard the state-imposed conditions . Once a state conditions its certification on the project taking specific actions, the federal agency in charge of the license must not only include those conditions in the license, but also ensure the operator abides by them. Thus, if a state imposes minimum flows on a dam's operation, FERC must include such conditions in the dam operation license. But, the final extent to which a state's conditions can be successfully challenged by federal agencies or federal permit applicants has yet to become clear or consistent. The conditions states may impose through 401 certification are very wide ranging. For example, the Second Circuit found that Vermont could condition its certification of sever- al hydroelectric projects on its continued oversight of building plans, erosion controls at the site, and other project elements not directly involved with the dams' operations. American Rivers v. FERC, 129 F.3d 99 (2d Cir. 1997). Additionally, courts have not interpreted water quality narrowly in the 401 context. Although the CWA was not meant to be a water-quantity statute, Section 401 allows states to address water-quality issues related to water quantity, allowing them to set minimum stream flow requirements in federal licenses. And states are not limited to water-quality conditions alone , as they may require fish passageways around dams and other projects to benefit aquatic habitats and species. Indian tribes can also act as states for 401 certification purposes. A tribe may seek authorization from the U.S. Environmental Protection Agency in order to take on the roles and responsibilities of a state under the CWA. This means that any federally licensed project that results in a dis- charge into tribally administered waters triggers the tribe's authority to add conditions to the permit. Section 401 also reserves a role for downstream states. Although downstream states do not have the same influence on a federal permit as the discharge state, they can play a significant role in shaping the approval process. When a project may affect the water quality in a downstream state, that state may request hearings, propose permit conditions, and demand federal responses to their concerns. Although downstream states do not have the authority to bind federal agencies, they do hold a seat at the table and can influence upstream projects. Section 401 gives states an important role in shaping the use of the country's water resources and provides them with significant authority to influence federal policy and actions . As states have begun to take the lead on many environmental and energy issues, states are increasingly becoming aware of, and exercising, the power granted by Section 401. It may be important to grant states a role in managing state resources and water quality; however, Section 401 can create a tangle of overlapping jurisdiction, where states, tribes, federal agencies, and regulated entities compete for control over projects. As a result, for regulated entities seeking federal permits to construct or operate dams, irrigation projects, or even nuclear power plants, working with states early in a project is critical for successful navigation of the 401 certification process. Rather than coming to a state at the end of the process, with a completed plan that has received approval from a federal agency, the licensees ought to view states as part of the process from the start. When all the parties have open dialogue, maximizing communication about concerns and goals, chances for cooperation and success increase. While 401 certification certainly adds more work and new regulators to please, by addressing state concerns upfront, regulated entities are likely to find that they can work with states to build successful projects.

Solvency – Jurisdiction – Court Rulings State courts take precedence in rulingsWrabley 12 (Colin Wrabley, attorney with Supreme Court experience, “Applying Federal Courts Of Appeals' Precedent: Contrasting Approaches To Applying Court Of Appeals' Federal Law Holdings And Erie State Law Predictions”, Seton Hall Circuit Review, https://scholarship.shu.edu/circuit_review/vol3/iss1/1, ES) In Erie Railroad Co. v. Tompkins, the Supreme Court overruled its decision in Swift v. Tyson and held that in cases where state law provides the rule of decision, federal courts have a constitutionally rooted obligation to ascertain and apply “the law of the state.” The Court declared that “whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern[,]” implying at least that federal courts must look to a state’s highest court in ascertaining state law. Only a few years later, the Court stated clearly that “the duty rests upon federal courts to apply state law under the Rules of Decision statute in accordance with the then controlling decision of the highest state court. If a state’s highest court has not addressed an issue of state law, but its intermediate appellate court has, how should a federal court in Erie mode assess that intermediate appellate court decision? The Supreme Court first addressed this question in a quartet of cases decided shortly after Erie. In West v. American Telephone & Telegraph Co., the Court explained that a “rule of law” announced by an intermediate appellate state court “is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.” As discussed in the sections that follow, the rule of West sets the stage for conflict and uncertainty in assessing the precedential weight of a federal court of appeals’ Erie prediction where the relevant state intermediate appellate court has decided the state law question differently.

Solvency – Tribes Through the McCarran Amendment, states are best suited to work with tribes on water protectionSly 93 (Sly Peter W., Professor at Colby University, graduated Yale Law School and Stanford University, “FEDERALISM AND SELF-DETERMINATION: STATE GOALS IN INDIAN WATER RIGHTS DISPUTES”, Indian Water in the New West, 71-78, 1993, https://doi.org/10.2307/j.ctvss3zc0.9)The vast federal proprietary and trust landholdings in the West will present dynamic issues of federalism and water rights throughout the 1990s. In this decade, western states are becoming increasingly concerned with water management. The federal government will not fund major new water projects, yet its regulatory presence in western water matters is increasing. In this climate, Indian water rights disputes provide both opportunities and dangers for states. States and tribes may work together to foster federal funding of some water projects. Some states may have common hydrologic interests with tribes. Some states fear increasing federal regulatory control as a result of uncertain Indian water rights claims. All states have four major interests in Indian water disputes: regulatory and adjudicatory simplicity, the protection of proprietary and fiscal interests, the maintenance of the integrity of state water law, and interstate interests.In the exercise of its regulatory powers, the state acts in water matters as a "traffic cop." As with any exercise of state police powers, simple, certain, and clear rules are desirable. In resolving conflicts over the use of a finite resource, all water managers seek to remove uncertainty. Western water laws are built on efforts to increase certainty: for example, the requirement that a water right must be put to continuous beneficial use to remain protected. Uncertain, potentially senior rights, such as reserved water rights, affect all junior rights on the system. Un-certainty in the amount of water rights is especially disruptive to current efforts to make water more transferable. To avoid uncertainty, states have sought uniform administration, simplification of general stream adjudications, and negotiation where feasible.Uniform Administration States have an interest in ensuring that recognition of Indian water rights does not create a duplicative, overlapping, and potentially inconsistent system of water administration in the same drainage as state rights. It is this interest in uniform administration that the Supreme Court recognized in a series of cases concerning the powers of state courts to adjudicate Indian water rights under the McCarran Amendment.2 Since I 983, it has been clear that the courts of all states have the power to adjudicate Indian reserved water rights.3 Federal courts also have powers to adjudicate Indian water rights but generally defer to state courts under principles of comity. The power of state courts to adjudicate reserved water rights includes the power to administer a judicial decree that recognizes federal water rights. State executive agencies may, at least under court supervision, administer Indian water rights that affect the rights of non-lndians.4 States do not have the power to determine the internal allocation of Indian water rights within the tribe. The Supreme Court has struggled with continuing questions of local, tribal, and federal regulatory powers over checkerboard reservation areas.5 From the Desert Land Act through the 1902 Reclamation Act and the McCarran Amendment, Congress has generally declined to establish a duplicative system of federal water regulation overlapping intrastate systems of water rights. States are concerned that federal regulatory powers over federal water rights may upset this historic federal deference to intrastate water rights administration.States have an interest in reducing the complexity and costs of general stream adjudications. These unique, mammoth proceedings have high fiscal, personnel, and political costs to states. State positions in these complex cases have been twofold: to keep the adjudication as simple as possible and to negotiate when feasible. In a general adjudication, the water rights of each user against every other user are determined in a judicial forum.6 To meet the requirement for jurisdiction over federal rights, the general stream adjudication must be "comprehensive." States resist federal Department of Justice attempts to broaden stream adjudications to include minor parties and rights, because of the large costs of participation in these complex and lengthy proceedings. Recent state court decisions in Idaho and Arizona have expanded the scope of those stream adjudications. In Idaho, the state supreme court required the inclusion of minor parties and adjudicated tributaries in the Snake River adjudication.7 In the Arizona Gila River adjudication, the court included groundwater underlying federal reservations within the scope of the adjudication, although Arizona law does not currently permit the court to similarly treat nonfederal groundwater rights. 8 Involvement of thousands of parties and complex groundwater rights in these stream adjudications will lengthen the proceedings and undermine the possibilities for settlement. The Arizona courts have taken a practical approach to service of process.9 The question of whether the United States must share in the administrative costs of stream adjudication is pending before the Supreme Court. 1 In recognition of the costs of general stream adjudication, western states and tribes have actively sought negotiation of federal and Indian reserved water rights claims. The Conference of Western Attorneys General, after conferring with the Native American Rights Fund, published a comprehensive legal study of reserved water rights negotiation in 1988 . 11 The Western Governors' Association has taken an active role urging federal approval of negotiated settlements. Montana and Colorado have been active in dispute resolution and in encouraging settlement and quantification of uncertain federal and Indian reserved water rights. Arizona, California, Idaho, Nevada, New Mexico, and Utah have also been party to recent Indian water settlements. Negotiation for all three governments-state, tribal, and federal-can be as difficult as litigation. Effective negotiation requires that each government keep its internal house in order through the negotiation. The federal government faces internal conflicts in representing Indian tribes, both with respect to other federal interests and with competing tribes on the same drainage. As tribal governments wrestle with their relationship to allottees and other individuals on the reservation, they are increasingly recognizing a distinction between their sovereign and proprietary roles. The states face internal conflicts as they seek protection of their specific proprietary interests and in representation of non-Indian water users. As proprietor, the state's interest is as a water user. States can assert a proprietary interest based on beneficial use of water on state properties: for example, parks, hospitals, prisons, and schools. These state proprietary interests are site specific and may conflict with each other. States also have proprietary rights for developed state water projects that rely on state bonding authority and tax-exempt status. The largest example is the California State Water Project; Colorado, Montana, and Utah also have state projects. State water development agencies act somewhat like the U.S. Bureau of Reclamation, selling their developed water by contract to water districts and users. When it acts as a water purveyor, the state has both a representative and a proprietary interest on behalf of its contractors. States also have proprietary claims for fish and wildlife. In most states, fish and wildlife agencies can assert claims for fish and wildlife preservation, which may overlap with similar federal claims. Most states now have programs for protection of in-stream flows. In-stream flow protection is complex when developed alongside existing systems of vested water rights. States are concerned that federal in-stream requirements resulting from the Endangered Species Act, Clean Water Act permits, regulations, salinity control, or non-Indian reserved water rights in wilderness areas will upset these state systems. Indian rights based on irrigation uses may not be consistent with state in-stream flow laws. All western states assert a "public interest" in water by constitution or statute. State water allocation decisions are subject to a broad balancing of interests, including the "public trust" in some states.12 It is not clear whether the state interest under public trust doctrine is proprietary or regulatory. An evolving area is state water rights for school trust lands. At statehood, Congress granted sections of public land to the western states as a trust to fund public education. These state school lands must be administered to maximize revenues for state schools. States contend that their enabling acts and constitutions require sufficient waters to maximize revenue from those school trust lands. Ironically, this claim has some similarities to claims for federal reserved rights that frequently have been opposed by states. Many states separate proprietary and regulatory roles. A

state agency that acts in a proprietary capacity will be separately represented in a stream adjudication. In Montana, for example, the Department of Natural Resources and Conservation has a proprietary interest. The agency's role of assisting the water court in verification of inflated claims has been limited.13 In California, the state Departments of Land, Fish and Game, and Water Resources are each separately represented in water rights hearings held before the Water Resources Control Board. Likewise, the Arizona Land Department is separately represented in the Arizona adjudications.States have an interest in the economic well-being of Indian reservations, many of which are pockets of extreme poverty. It has been estimated that 80 percent of the government services provided to Indians come from state governments. 14 States encourage water development that can ensure tribal economic self-sufficiency consistent with the prosperity of neighboring communities. State taxing agencies have a fiscal interest in the exercise of federal reserved water rights. Federal reservations are generally tax exempt. State and local tax revenues may be affected if new use of water on a tax-exempt reservation reduces tax revenues from existing junior priority water uses on taxable land. Finally, states have a concern with water settlements that obligate the state to fund water supply as part of the settlement. All states recognize some cost-sharing obligations. However, Indian water conflicts are a consequence of conflicting federal policies for public lands, water, and Indians. States believe the federal government should fund Indian water rights settlements that result from inconsistent prior federal policies and practices. The state role as guardian of the state's water law system is complex. Particularly in litigation, states will act to protect the state system of water rights law against Indian rights. In the 1989 Big Horn case, eight out of fourteen western states filed amicus briefs in the Supreme Court urging that Indian water rights be limited to those necessary on the reservation. The practical forces pushing states toward representation of private interests are Indian/non-Indian population distribution, landholding patterns, and state water institutions. I. The proportion of Indian and nonmember population within the reservation. Nonmembers who live on the reservation (whose ancestors were invited on the reservation by the federal government) cannot vote for the tribal government or sue it, and have no effective civil rights. 15 Because of the lack of nonmember enforcement powers against tribal governments, states take a representative role when the nonmember population is significant. Examples of reservations with a significant nonmember population include Yakima, Uintah and Ouray, Nez Perce, Flathead, and Wind River. For those reservations that are Indian enclaves, state interest in on-reservation water rights is limited to off-reservation effects. Examples of reservations primarily populated by Indians are Navajo, Hopi, San Carlos Apache, and Pyramid Lake. 2. Off-reservation effects and checkerboard landholdings. When exercise of a reserved water right has spillover effects off the reservation and on nonIndian lands, the state has strong interests. 16 For example, the Pueblos of New Mexico are interspersed with many other uses in the Rio Grande drainage. Because of the limited nature of the water resource, states oppose setting water aside for future uses on hypothetical projects that undercut the certainty of existing uses. In the regulatory context, the Ninth Circuit Court has recognized that respective state and tribal powers over non-Indian use of excess waters may turn on the extent to which the affected drainage is self-contained within the reservation.17 If the affected drainage is entirely within the reservation, the tribe has a greater interest; conversely, as the Indian rights are interspersed with and affect other rights in the drainage, the state's interest increases. In multistate basins, such as the Colorado, Missouri, Columbia, or Truckee, the federal government asserts an interest. 3. Existence of state water institutions to spread the cost. In some states, large water districts can spread among individual users the costs of participation in stream adjudications. In Arizona, the Salt River Project takes a major role in Indian water rights litigation and negotiation. The Metropolitan Water District of Southern California takes a similar role for southern California water interests. All users in the upper Snake River are represented by a single district in Idaho's adjudication. Those states without such large entities are more likely to represent private rights against Indian claims.As a practical matter, "representative federalism" may be required for effective negotiation of Indian water rights. Negotiation is not feasible if all of the thousands of potentially interested parties are active participants in the discussion. To represent private vested rights, a state must strike a balance between (l) the need for a resolution of the conflict between state and federal water rights and (2) the right of the individual water user to be heard. Some states limit their role to regulatory fact-finding and separate representation of state proprietary interests. For example, in Arizona and New Mexico, private parties protect their own rights and control the course of the water rights adjudication. By contrast, Montana and Wyoming, as representative of private users, have directly negotiated settlements of conflicting federal-state water rights, subject to legislative and judicial approval of the settlement. Montana has taken the strongest representative role in negotiation by creating the Reserved Water Rights Compact Commission to negotiate with the federal government and Indian tribes on behalf of the legislature and all water users claiming state rights. The legislature suspended adjudication of federal claims pending these negotiations. Any agreement must be approved by the legislature and the tribe and must be entered in the stream adjudication. Therefore, the agreement will be a state legislative act that recognizes the respective rights of the signatory governments and does not adjudicate the rights of individual users. The Fort Peck agreement has been adopted by the state legislature and the tribes but has not been approved by the State Water Court or Congress. The state agreed to a tribal water code that will allocate water within the tribe. States have required that private parties not be injured by any settlement. To achieve this goal, states can choose to take a representative role; however, they cannot be compelled to do so because of due process constitutional limitations. States can be compelled to exercise their regulatory authority overfishing in a manner that recognizes Indian rights. 18 However, there is no vested property right to fish, as there is in water rights.Wyoming has taken a strong adversary role to the tribes in the Big Horn litigation, serving as a de facto representative of private water users. The state's interest is regulatory, proprietary, and representative. Similarly, although perhaps more limited, the New Mexico legislature funded technical, hydrological, and legal costs for acequias and the city of Ruidoso in a general stream adjudication in 1988, thus lending funding support to the non-Indian water users. By contrast, in Arizona, the Department of Water Resources has been held to an adjudicatory/regulatory role in the Gila general adjudication. In this role, the department assists the court by compiling hydrologic reports. The Arizona Supreme Court determined that the Department of Water Resources cannot undertake a representative role, nor is the department permitted to rank or quantify competing claims.Under interstate compacts and principles of equitable apportionment, each state has an interest in maximizing the economic use of interstate streams within its borders. State interests may be implicated by Indian claims that have an interstate aspect. The states may be friendly or adverse to Indian claims, depending on the location of these claims in an interstate basin. In litigation and in legislation, state interests and roles concerning Indian water disputes are complex. States balance these competing goals in various ways, depending on hydrology, population and landholding patterns, and state water institutions. All states share a common interest in regulatory simplicity. The strong state interest in certainty of rights to the limited water resource has led states to explore negotiations with Indian tribes. Ultimate self-determination for both states and tribes may be best served by negotiations that can tailor an agreement to present and future existing needs without the costs, friction, and delay of litigation. To the extent that western states and tribes work cooperatively on sharing management of the resource, they can together define and limit the federal role.

McCarran Amendment extends tribal water authority to statesND Water Law [“Federal Reserved and Tribal Water Rights”, North Dakota Water Law, https://www.ag.ndsu.edu/ndwaterlaw/acquiringwater/federal-reserved-tribal-water-rights]NY

Colorado River Water Conservation Dist. v. United States, U.S. Supreme Ct., 1976 (p. 711 of Weber's 9th ed.) The United States instituted a suit in federal court for declaration of U.S. reserved water rights. The defendant filed an application in Colorado state court seeking an order directing service of process on the United States to join it for the purpose of adjudicating all U.S. claims. The United States was served pursuant to the McCarran Amendment in which Congress consented to having the United States joined in cases adjudicating and administrating water rights where it appeared the United States is the owner or is in the process of acquiring water rights under state law. Defendants filed a motion in federal district court to have the federal case dismissed; district court granted motion.

Court of Appeals reversed. Under 28 USC 1345, district courts shall have jurisdiction over all civil actions brought by the federal government; McCarran Amendment did not diminish the federal district court jurisdiction. McCarran Amendment   provided consent for state courts to determine federal reserved rights held on behalf of Indians; so the state court had jurisdiction over the Indian reserved water rights; federal reserved rights were included where the United States was "otherwise" the owner.   The   underlying policy of the amendment dictates including Indian reserved rights -- it is an all-inclusive statute. State jurisdiction does not imperil Indian reserved water rights nor breach the special obligation of the federal government to protect Indian rights; the amendment does not abridge any substantive claim of the Indians. The district court's dismissal was appropriate under the doctrine of abstention -- congressional consent (via the amendment), no federal court proceedings in this matter until this suit was filed, the large number of defendants involved in the case (1000), the distance from the federal court to the state court (300 miles), and federal participation in other state proceedings. Federal case was properly dismissed by the federal district court.

State courts adjudicate tribal water rights where federal courts dismiss under the McCarran AmendmentStein N.D. [(Jay F. Stein, University of New Mexico , JD, water law specialist) “The McCarran Amendment and the Administration of Tribal Reserved Water Rights”, Simms & Stein] NY

Judicial constructions of the McCarran Amendment have enforced the federal waiver of sovereign immunity. The policy for state adjudication of federal water rights was enunciated by the Supreme Court in Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). At issue were proceedings brought by the United States in federal court on behalf of Indian claimants pursuant to 28 U.S.C. § 1345. The Court acknowledged the "highly interdependent" nature of rights to water, and that "actions seeking the allocation of water essentially involve the disposition of property and are best conducted in unified proceedings." 424 U.S. at 819. The Court concluded that "[t]he consent to jurisdiction given by the McCarran Amendment bespeaks a policy that recognizes the availability of comprehensive state systems for adjudication of water rights as the means for achieving these goals." Id. The Court held that the suit brought by the United States in federal court was properly dismissed in favor of the concurrent adjudication addressing the same issues in state court. In Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983), the Supreme Court decided the effect of the McCarran Amendment on proceedings in states which were admitted to the Union subject to legislation that reserved absolute jurisdiction and control over Indian lands to the Congress. The Court considered the consolidated San Carlos cases to be a sequel to the decision in Colorado River WaterConservation District, supra. At issue was the contention that the McCarran Amendment did not effect a waiver of federal sovereign immunity with respect to Arizona's Enabling Act, 36 Stat. 557, and the Arizona Constitution, Art. 20, ¶ 4. The Court held that limitations imposed on state court jurisdiction by the Enabling Acts were removed by the McCarran Amendment which was intended to address the problem that federal sovereign immunity placed on a state's ability to adjudicate water rights. The Court concluded that where state courts have jurisdiction to adjudicate Indian water rights, concurrent suits brought by Indian tribes seeking the adjudication of their rights are subject to dismissal under the Colorado River doctrine. 463 U.S. at 565-570.

McCarran Amendment gave power to state courts DOJ 15 [“The McCarran Amendment”, Department of Justice, 5/12/15, https://www.justice.gov/enrd/mccarran-amendment] NY

The modern era of western water rights litigation began with the enactment of the McCarran Amendment in 1952. See 66 Stat. 560 (1952), codified at 43 U.S.C. § 666. Prior to enactment of this legislation, federal water rights could only be adjudicated in actions filed (or not opposed) by the United States because there was otherwise no waiver of sovereign immunity providing for the involuntary joinder of the United States to water rights adjudications. Although the United States had voluntarily sought the adjudication of its water rights in a limited number of early cases – for instance, the Orr Ditch litigation initiated by the United States in federal court in 1913 to adjudicate water rights to the Truckee River in California for the Newlands Reclamation Project and the Pyramid Lake Indian Reservation – such cases were the exception. As early as 1910, shortly after the establishment of the Public Lands Division, the Attorney General, reported that, without its voluntary appearance, the United States could not be bound by a water rights adjudication in Idaho in which a private corporation sought to join sixteen hundred settlers under the Minidoka Project, certain engineers of the Reclamation Service, and the Secretary of the Interior as parties defendant. By 1926, federal participation in such suits had become somewhat more widespread, with the United States filing or consenting to joinder in approximately thirty adjudications scattered throughout the West – often for the purpose of seeking a determination of the water rights held under state law for large irrigation or Indian reclamation projects, such as the Gila River Project in Arizona and the Grand Valley Project in western Colorado. However, there remained an untold number of stream

systems in which claimants were unable to obtain a determination of the status of their claimed water rights relative to the often sizable, potential federal claims, including particularly federal reserved rights claims. This situation changed with the enactment of the McCarran Amendment in 1952, which waived federal sovereign immunity for the joinder of the United States as a defendant in general stream adjudications. Over the next several decades, the United States Supreme Court issued a series of opinions that clarified the scope of the waiver and the procedural requirements that apply to such proceedings. For instance, the Supreme Court in such cases as Dugan v. Rank, 372 U.S. 609, 618-19 (1963), and Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976), ruled that the McCarran Amendment only provides a limited waiver of sovereign immunity for purposes of joinder to comprehensive, general stream adjudications in which the rights of all competing claimants are adjudicated. The waiver does not subject the United States to private suits to decide priorities between the United States and a particular claimant. The Court in Colorado River District also recognized that, although state and federal courts have concurrent jurisdiction over the comprehensive adjudication of water rights, the federal courts may, in appropriate circumstances, abstain from exercising their jurisdiction where comprehensive state proceedings addressing the same claims are already underway. Finally, the Court in United States v. District Court in and for Eagle County, 401 U.S. 520 (1971), ruled that the waiver of sovereign immunity under McCarran includes a waiver for the adjudication of federal reserved water rights. This ruling opened the door to much litigation over the existence and quantity of federal reserved water rights held for national parks, national forests, national wildlife refuges, and other federally reserved lands.

State courts have the power to adjudicate tribal waterDworkin 11 [(Judith Dworkin, leads the firm’s Indian Law and Tribal Relations) “Indian Water Rights: Relevant Case Law”, Sacks Tierney, October 2011, https://www.sackstierney.com/articles/indian-water-rights.htm] NY

Federal and state courts have concurrent jurisdiction to adjudicate the water rights of Indian tribes. State court jurisdiction requires satisfaction of the requirements of the McCarran Amendment which waives the immunity of the federal government. 66 Stat. 560, 43 U.S.C. § 666. Pursuant to the McCarran Amendment the sovereign immunity of the federal government is waived for the adjudication of the rights to the use of water in a river system or other sources in a state court proceeding, including the adjudication of federal claims to water rights and those of federally recognized Indian tribes.In   Colorado River Water Conservation District v. United States , 424 U.S. 800 (1976), the Supreme Court upheld a district court’s dismissal of an action for federal adjudication of water rights in favor of a contemporaneous state court adjudication. In   Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1984), the Supreme Court reversed the decision of the appellate court and deferred to the state court proceedings in the states of Arizona and Montana to adjudicate the water rights claims of Indian tribes. The principles established in   Colorado River   and reaffirmed in   San Carlos Apache Tribe   are referred to as the   "Colorado River   abstention doctrine," which provides that, in most cases, a federal court should defer to a contemporaneous and comprehensive state water rights adjudication. In contrast, in United States v. Adair, 723 F.2d 1394, 1411 (9th Cir. 1983), the Ninth Circuit reviewed the reasoning of the district court to retain jurisdiction and upheld that decision on the basis that the court was merely determining the priority of water rights among lands within the boundaries of the former Klamath Indian Reservation. In addition, federal adjudication would avoid waste, the federal court could hear the case in a convenient location for the parties and the district court ruled only on questions involving application of the federal Indian law doctrine of reserved rights.

Solvency – Agriculture States should regulate ag - not the feds Fiorino & Weted ’21 (Daniel, Director at the Center for Environmental Policy at American University, Carley, doctoral student in the Department of Public Administration and Policy at American University, Environmental Federalism in a Polarized Era 1-8-2021 State and Local Government Review Vol 52 Issue 2 https://journals.sagepub.com/doi/abs/10.1177/0160323X20986225//AF)As federal and state governments made progress on point-source water pollution, non-point sources became more important. They are less amenable to technology controls and more diffuse, encompassing farm and forest run-off, leaking septic tanks, and storm water releases. Statutory authority for non-point sources lies with the CleanWater and Coastal ZoneManagement Acts. The federal role is to set quality targets through ambient standards that reflect state designated uses and provide funding for state programs. Implementation is left to states . Because states have more control over designated uses, and sources are diffuse and diverse, non-point source management is far more decentralized than it is for point source regulation under the Clean Water Act Non-point sources are controlled by best management practices and technical assistance, so relying on state and local governments as implementers makes sense. In theory, these are best applied on a local level in cooperation with farmers and municipalities (Drevno 2016). Yet non-point sources do have transboundary impacts, as the Great Lakes and Chesapeake Bay illustrate. The federal government responded by creating regional entities like the Chesapeake Bay Program and Great Lakes Restoration Initiative to manage transboundary issues. Still, local interests, especially agriculture, minimize the impact of regulatory controls in many states (Zaring 1996). A promising yet challenging innovation is water quality trading, especially between point and non-point sources (Greenhalgh and Selman 2012). It recognizes variations in control costs and creates economic incentives for farmers, land-owners, and municipalities to adopt management practices and earn pollution reduction credits. Many states are examining trading for managing non-point sources. The federal EPA could serve as an innovation facilitator and clearinghouse of ideas and practices, offering yet another variation in federal-state relationships.

Solvency – CAFOs Subfederal governments are better than the USFG at regulating CAFOsCounty Health Rankings 17 – Country Health Rankings, “CAFO Regulations”, April 21, 2017, https://www.countyhealthrankings.org/take-action-to-improve-health/what-works-for-health/strategies/cafo-regulations#:~:text=State%20and%20local%20governments%20can,assessment%20of%20pollution%20prevention%20practices. - Sajan ShahState and local governments can establish additional regulations to further limit CAFO location, size, and pollution discharge, and increase monitoring, enforcement, and assessment of pollution prevention practices. State and local regulations can also require certification and review of comprehensive nutrient management plans (CNMPs) or manure management plans and expand CNMP requirements3, 4. State and local regulations vary5; some local governments have limited ability to enact regulations due to state preemption legislation6, 7. Expected Beneficial Outcomes (Rated)

Reduced run-off Improved water quality

Other Potential Beneficial Outcomes Improved air quality Improved health outcomes Improved quality of life Reduced emissions

Evidence of EffectivenessState or local confined animal feeding operation (CAFO) regulations are a suggested strategy to reduce environmental contamination and improve water quality5, 8. Available evidence indicates changes in CAFO management practices9, 10 and CAFO siting11 in response to regulations. However, additional evidence is needed to confirm the effects of state and local regulations and management changes on environmental contamination and water quality. CAFOs have been shown to pollute water with excess nutrient run-off and nitrate contamination12, 13, 14, 15, estrogen and steroids16, 17, and bacteria and fecal contamination14, 18, 19, 20, 21. In some circumstances, CAFO waste has been shown to increase antibiotic resistant bacteria in surface and groundwater14, 17, 20, 21, 22, 23. CAFO waste can also increase arsenic levels24, hormone concentrations, and algae blooms that can lead to fish kills5, 16, 25, 26. CAFOs emit air pollutants such as ammonia, hydrogen sulfide, particulate matter, volatile organic compounds (VOCs), and nitrous oxide27, 28, 29, 30, 31, 32, 33, 34, 35. Studies show negative health outcomes among CAFO workers including symptoms of pulmonary disease and lung function abnormalities36, 37. Available evidence also suggests negative health effects for those living near CAFOs, such as increased risk of respiratory illnesses37, 38, and increased incidence of chest tightness, wheezing, coughing, nausea, fainting, headache, and plugged ears, compared to those further from CAFOs. CAFO neighbors also more commonly report increased anger, depression, fatigue, stress, sore throat, diarrhea, and burning eyes36, 37. CAFOs appear to negatively affect nearby housing prices, especially for homes within a 3 mile radius39, 40. CAFO odors spur decreases in reported quality of life among

neighbors36. Prior to adopting CAFO regulations, legal experts suggest that local municipalities examine state law closely, define “CAFO” to reflect regulatory goals, implement a permitting and siting system, consider potential effects on local agriculture, and require a bond7. Adequate funding for oversight, research, and enforcement are key to implementation26. Researchers also suggest that relying on size-based regulations alone may have limited effects on small farms and may encourage large

farms to downsize to avoid regulation41. Regulations can encourage CAFOs to adopt technology to capture methane emissions for renewable energy, which can help to mitigate climate change effects8, 42, 43, 44. Models suggest that CAFO regulations based on downstream emissions are more cost-effective for producers than quantity controls or limits for field manure applications, especially with technology to reduce emissions45. CAFOs are typically located in rural areas. In several areas of the country, such as North Carolina and Mississippi, CAFOs are also clustered in low income, minority communities, raising environmental justice concerns46, 47. Impact on DisparitiesLikely to decrease disparities Implementation ExamplesSome state’s regulations are broad in scope with detailed definitions and designated enforcement support, while others simply comply with federal requirements. Examples of states with strong CAFO regulations include: Alabama, Arkansas, Colorado, Georgia, Illinois, Indiana, Iowa, Kansas, Minnesota, Nebraska, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, Vermont, Virginia, and Wisconsin. States with weaker CAFO regulations include: Alaska, Arizona, Connecticut, Massachusetts, Mississippi, Montana, Nevada, New Hampshire, New Mexico, New York, Washington, and West Virginia5. Thirteen states have preemption legislation that prevents local communities from adopting regulations or zoning restrictions for CAFOs that are more restrictive than state laws6. In states with preemption legislation, communities and municipalities can shift from deterrence-based efforts to partnerships with industry and voluntary programs that educate producers about practices to minimize pollution discharge and enhance pollution controls48. In all states, local boards of health can increase water and air quality testing in the areas surrounding CAFOs; and in some areas, local boards of health can also pass ordinances or regulations directed at CAFOs

Solvency – Floods CP solves flood infrastructure reformTullos 18 (Desiree Tullos, Department of Biological and Ecological Engineering, 4-10-2018, "Opinion: How to achieve better flood-risk governance in the United States", PNAS, https://www.pnas.org/content/115/15/3731.short, accessed: 7-12-2021)//jakeFlood losses can include loss of life, damage to infrastructure and agriculture, interruptions to business and education, and impacts on human health and welfare. It has long been known that such losses are primarily the result of human decisions. Nearly 75 years ago, Gilbert White,

considered to be the father of floodplain management, argued that “Floods are acts of God, but flood losses are largely acts of man” (1). White spent his career investigating why people insist on living in flood-prone areas, and his work demonstrated how flood-protection measures contribute to floodplain occupants’ underestimation of their flood risk. Despite this longstanding knowledge, history and politics in the United States have established a flood-risk governance structure that provides the perverse incentives for occupation of flood-prone

areas along with a widespread lack of awareness of the associated risks. A flood-governance structure describes the collection of regulations and cultural norms that establish the distribution of authority, responsibility, and resources for flood management (2). In the United

States, floodrisk governance is defined by a largely uncoordinated set of laws, regulations, and infrastructure that resulted in part as responses to major flood hazards. Because flood mitigation, water law, and land-use regulation are not explicitly delegated to the federal government under the US Constitution, the authority and responsibilities for these activities mostly fall to the states. In the case of land-use regulation, most states have delegated authority to county and city governments. However, there have been two important federal laws enacted that drive nationwide efforts with respect to flood-risk reduction. The first was the Flood Control Act (FCA) of 1936 and subsequent FCA legislation, in part a response to the catastrophic flooding of the Mississippi River in 1927 and

of the Columbia River in 1948. The original FCA authorized federal engagement in flood-risk reduction, which has predominantly occurred through development of large infrastructure. The second law driving federal efforts was the National Flood Insurance Act of 1968 and associated amendments, which established the NFIP. The NFIP identified areas within the 100-year floodplain, meaning they have a 1% chance of being flooded every year, as highrisk areas. It also established a flood insurance program to provide incentives for communities that adopted land-use regulations and prohibited future construction below the 100-year flood elevation. But although NFIP discourages

floodplain development, local governments ultimately have authority for land-use regulations. Thus, the historical lack of an articulated and coordinated flood-governance structure has led to a complicated blending of hierarchical, monocentric governance (2) at the federal level with more distributed polycentric governance at the regional and local levels. This uncoordinated blending of flood-risk governance has produced significant conflicts across different levels of authority. A key example: The lawsuits challenging that the Federal Emergency Management Agency’s (FEMA’s) NFIP does not comply with the Endangered Species Act (ESA). As a federal agency, FEMA must comply with ESA by not producing adverse impacts on threatened

and endangered species. FEMA has been sued in multiple states for the NFIP’s role in enabling degradation of habitat for such species. As a result, FEMA has injected itself into the role of supervising and restricting activities within the floodplain in some locations where habitats for threatened and endangered animals have been affected (e.g., salmon in the Puget Sound, WA; Key Deer in the Florida Keys). Opposing lawsuits have been filed on behalf of local land-use authorities, such as those currently underway in Oregon, to challenge the new NFIP requirements and FEMA authority for being overly

restrictive. Levees represent another example of governance challenges and conflicts, with debate centered on the responsibility for maintaining the 30,000 to 100,000 miles of the nation’s levees. Key actors include the (i) US Army Corps of Engineers, who originally constructed many of the nation’s levees before handing them over to local entities and who regularly conducts levee inspections; (ii) FEMA, who certifies levees for the NFIP; and (iii) primarily

nonfederal levee owners, who often do not have the resources to maintain the levees or effectively communicate the flood risk to the public living and working behind them. The US approach to flood-risk governance also appears to have restricted the types of flood-management activities that occur, potentially reducing the effectiveness that flood-management actions could have in lowering flood risk. Experts (3) have called for reducing reliance on the centralized, structural approaches (e.g., dams, levees), which emphasize modifying flood characteristics (e.g., depth, extent, duration) and represent the foundation of flood-risk management in the current governance in the United States. In some cases, structural approaches to flood risk reduction have actually increased residents’ exposure. For example, by fostering floodplain development, levees lead to increased losses when levees fail or floods reach elevations higher than levee-crown elevations (4). Furthermore, structural measures tend to be inflexible to changing conditions. For example, reservoir operations are primarily driven by congressionally authorized water-control diagrams that are difficult to modify, and raising the height of levees to increase protection for an exposed community is problematic because it results in raising flood elevations in another location. Thus, with the aging (5) and failure (Fig. 1, Upper Left and Right) of the nation’s flood infrastructure and the rising operational costs and constraints as infrastructure budgets steadily decrease (6), some flood managers increasingly argue that the nation’s floodrisk management should increase reliance on nonstructural measures and on sharing responsibility for flood risk among the federal government, regional and local communities, and the public (3, 7).

Nonstructural measures tend to be local-scale actions that emphasize reducing exposure of the public to floods via behavioral adaptations (e.g., floodplain development restrictions, building codes, early warning systems, relocation) and localized stormwater management, rather than modifying the flood characteristics. Although nonstructural practices are being utilized in some

locations across the United States, their effectiveness and widespread application have been limited by population growth, socioeconomics, and governance (8), as illustrated by the litigation related to the NFIP. Furthermore, distributing some flood-risk responsibility to the public will require reshaping

of public perceptions and motivations. The historical “flood control” paradigm in the United States has led the public to believe that federal flood managers can prevent all catastrophic flooding (7) and obtain very limited information about our flood risk (9) and the reliability of the flood infrastructure that protects us. This lack of awareness and action around flood responsibility has been shown to increase an individual’s exposure and vulnerability to floods (10). However, the burden of communicating and socializing risk regarding flood infrastructure to increase awareness is a challenging and humbling task, particularly because it commonly falls to the engineers who design and

operate flood infrastructure (11). A New Kind of Flood Governance There are major barriers to making the transition toward more

sustainable and effective flood management, none of which are problems that engineers alone can solve. First, the politicization of flood-risk governance has crippled the ability of the United States to protect the public from floods. As effectively argued by Wilke (12), the debate on less versus more government distracts decisionmakers from the critical task of making governance more efficient and effective. The more meaningful question is how to distribute authority and resources for planning, mitigating, and recovering from floods among individuals and institutions. Furthermore, revoking sound and cost-effective policies, including those that require stricter building standards when rebuilding publicly funded structures in flood zones (for example, Executive Order 13690, revoked August 2017), is not going to protect the

people or economy of the United States over the long term. Second, managers and politicians will have to overcome the public’s perception that floods are “controlled” by federal flood managers and, thus, that we have no responsibility for reducing our own flood risk. The shaping of perceptions and institutions by existing infrastructure, such as the overconfidence of floodplain residents behind aging and uncertified levees, has been exceptionally effective. The essential task of reshaping those perceptions and institutions will be extremely difficult. The most effective floodmanagement solutions (i.e., land-use regulations) require political leadership and public outreach. For example, in heavily leveed rivers, it can be more cost effective for managers to reduce the flood stage by reconnecting and expanding the floodplain rather than raising levees and constructing additional dams. Restoring the connectivity of floodplains may also allow upstream reservoirs to remain at a higher elevation during the flood season, thus increasing the available water supply and hedging against water scarcity during the dry season. However, reconnecting floodplains requires making the politically and economically difficult task of relocating residents who currently live in flood-prone areas. The high rate of repetitive loss claims in the NFIP

demonstrates the lack of political willpower to even discourage rebuilding in areas known to flood, let alone the resettling of exposed populations. And oftentimes the public is unwilling to acknowledge its own role in reducing their flood risk. Third, engineers and social scientists need to work together to expand the research agenda on the sociological, economic, and geopolitical elements of floods and flood-risk management. For example, studies are needed to investigate and overcome the social and political barriers that hamper wider adoption of nonstructural flood management. In addition, collaborations between engineers and lawyers could contribute to identifying where flexibilities (e.g., operational changes in rule curves) exist in the institutions and infrastructure controlling flood management (13) and how and when those flexibilities can and should be exploited for adaptation under changing conditions. Another area ripe for integrative research is in the design of policies that advance public risk perception. Researchers have demonstrated that the public fails to appropriately understand risk, commonly rounding low probabilities (e.g., 1% flood exceedance of the 100-year flood) down to zero (14).

Solvency – Mexico It is proven that State and Local governments usually have the best optionGabriel E. Eckstein, Texas Wesleyan University School of Law, "Rethinking transboundary ground water resources management: A local approach along the Mexico-US border", 2012Efforts to achieve a thoughtful, environmentally-sound, and equitable management and allocation regime for a particular transboundary aquifer are more likely to succeed if they involve and are driven by local stakeholders and decision-makers.95 While it may be true that local institutions and communities do not always have the resources or technical knowledge to address broad and scientifically complex cross-border challenges, this does not mean that they do not have the capacity to adopt and implement sound policies and arrangements based upon relevant studies and information obtained from higher-level governmental agencies or other sources.96 In fact, local decision-makers are typically better informed about local and regional cross-border concerns than federal bureaucrats, especially on issues related to the management of area fresh water resources, and therefore are more likely to achieve an accord.97 Moreover, local authorities are better able to reflect the values and preferences of those most likely to be affected by an accord with a neighboring country, which, for a local border community, is merely a short drive away.98 In addition, local decision-making would likely be more responsive and adaptable to changing circumstances and improved knowledge. Climate change, for example, threatens the border region in ways that have yet to be fully ascertained. While studies generally forecast more arid conditions and reduced rainfall and stream flow throughout the Mexico-U.S. border area in coming decades, much debate and speculation remains as to how, where, and to what extent those changes will occur. Moreover, and more to the point, impacts will likely vary all along the frontier, affecting different regions in disparate ways.99 While comprehensive, border-wide responses to climate variability may be suitable for certain aquifers and regions, local communities could be far more agile in formulating local responses and solutions to their unique circumstances as climatic and related changes become apparent. Furthermore, the efficacy of local participation and decision-making is bolstered by the conviction that communities and citizens are best served by decisions made by those with the greatest stake in the subject matter and who would be most directly affected by possible outcomes.100 Local border communities and their representatives typically have strong ties to individuals and groups on the other side of the frontier in the form of friendships, family relations, colleagues, and business connections. For decades, these communities have developed diverse and intense networks for collaborating on a wide variety of social (weddings and festivals), economic (trade and investment), public health and safety (fighting fires and criminal activity), academic (conferences and researcher collaborations), sporting (tournament and infrastructure), and other interests.101 These bonds allow local individuals and groups to be flexible and adaptable to, as well as accepting of, unique local practices and changing conditions that national officials may not recognize or appreciate in the context of a negotiation. Moreover, locals have an especially strong incentive to seek out long-term solutions for cross-border challenges that are both practical and sustainable since they will have to live with the consequences of these decisions.102 In areas like the Mexico-U.S. frontier, where transboundary aquifers are the lifeblood of nearly every border village and population, discussions and decisions over the management of these resources are critically consequential for every citizen. Nevertheless, while the border physically divides many of the sister communities, residents on both sides often perceive themselves as one large community, providing a fertile opportunity for local, cross-border cooperation.103 This local, “bottom-up” approach to ground water management, however, is not intended as a broad panacea for every transboundary aquifer scenario and may not be appropriate in all circumstances. Factors and characteristics, such as the geographic scale of a cross-border aquifer, may dictate the level of administrative authority necessary to respond to particular issues and challenges posed.104 Hence, for example, where an aquifer or aquifer basin extends over a limited region, local participation and decision-making may suffice. However, where the specific water challenge involves an aquifer or aquifer basin that transects or impacts a much larger area – for example, an aquifer hydraulically linked to a large domestic or transboundary river like the Rio Grande – a strictly local arrangement may be less suitable or effective. Decision-making ought to be handled by the lowest level of administrative authority with competence over the resource and its implications.105 Along the Mexico-U.S. border, some evidence shows that a local approach to the management of the region’s transboundary waters is already underway . One notable example is the 1999 Memorandum of Understanding between the Municipal Water and Sanitation Board of the City of Juárez (in Chihuahua, Mexico) and the El Paso Water Utilities Public Service Board of the City of El Paso (in Texas, US) (MoU).106 Although legally unofficial and unenforceable,107 the MoU evidences the interests of governmental authorities on both sides of the international boundary, at the very local, sub-city level, to cooperate over and exchange information about a regionally-specific shared aquifer. Focusing on the Hueco Bolson Aquifer underlying the two cities and the hydraulicallylinked Rio Grande, the two boards endorsed the MoU to “identify the mechanisms between the parties to increase communications, cooperation, and implementation of transboundary projects of common interest.”108 Anecdotal evidence indicates that similar, albeit even less formal or publicized, cooperative arrangements over fresh water resources have been forged elsewhere along the border. For example, in 2002, a serious drought along the Arizona-Sonora border greatly depleted the region’s aquifers and dried up numerous wells on both sides of the frontier. While communities all along the border suffered from this predicament, Mexican communities were especially hard-hit due to inadequate infrastructure and planning. As a means of assisting their parched brethren across the border, Nogales, Arizona agreed to temporarily deliver water to their sister city of Nogales, Sonora. A fire hose attached to a metered hydrant in Nogales, Arizona was draped across the border fence where Mexican tanker trucks filled up their tanks and then delivered water throughout Nogales, Sonora.109 Apparently,

this was not the first time that a temporary water transfer of this type had occurred.110 While only a temporary measure, it serves as an example of local decision-makers taking responsibility for locally-specific, transboundary water issues and achieving locally-relevant solutions.

Solvency – Mexico – Desal Completely possible for states to propose binational plans and agreements-California and Arizona proves(specifically about desal)UA, University of Arizona, "Desalination Opportunities Lead to Binational Cooperation", No Date, https://wrrc.arizona.edu/awr/s11/binationalMexico is not new to desalination, and continues to build facilities at a high rate. In 2002, there were 171 desalination plants in Mexico and by 2006 there were 435 registered desalination plants. In a potential binational desalination plant agreement , the clean water produced would be shared between the two countries. Two such agreements have been considered: an Arizona-initiated plant in Puerto Peñasco and a Californiainitiated plant in Rosar ito. For the latter, the San Diego Water Authority has financed a feasibility study and preliminary design plan. The first stage of the feasibility study shows the project to be both economical and viable. Now the San Diego Water Authority is in the process of seeking additional funding for the second stage of the feasibility study, which will look more closely at plant operations and agreements for running it. Halla Razak, Director of Colorado River Programs for the San Diego County Water Authority cautioned that after these studies are complete and the project moves forward, there will be a lengthy and complicated permitting process in order to meet both U.S.- Californian and Mexican regulations. Guy Carpenter of Carollo Engineers described similar positive results of a feasibility study he led on the site at Puerto Peñasco.

Solvency – Dams States are more capable & likely to manage dams.Owen & Apse 15 (Dave Owen, Professor, University of Maine School of Law & Colin Apse Freshwater Conservation Advisor, The Nature Conservancy. “Trading Dams”. https://lawreview.law.ucdavis.edu/issues/48/3/Articles/48-3_Owen-Apse.pdf)//jakeIV. INTEGRATING REFORMS: A MODEL PROGRAM The preceding discussion identifies a variety of challenges and implies many reforms. To bring our reform ideas into focus, we therefore close with a sketch of a model reform program. For several reasons, we focus on states (though some analogous changes could occur at the

federal level). First, state dam laws have tremendous room for improvement. As discussed above, state dam law is often highly underdeveloped, and what law exists is not always implemented in any meaningful way.359 Second, in the literature on dams, states have received the least attention. Consequently, while we think promising reforms could and should occur at the federal level,360 the prescriptions that follow explain what a thoughtful state might do with its

dams. If implemented, the reforms below should help facilitate the trading of dams. But, as we have discussed, dam trading will still present challenges, and improvements in dam management would be possible even in the absence of trades. For that reason, we have emphasized reforms that would encourage trading but would also produce more sensible dam management even if true trading systems do not emerge. A. Environmental

Regulation An effective dam policy requires regulatory sticks, and on that front states have ample room for improvement. At a minimum, a state dam regulatory program ought to include three elements. The first, and most important, step would be to create environmental performance requirements for existing dams. While states might choose to establish lower performance standards for existing facilities, or might

choose to phase those requirements in, there is no compelling reason to grant environmentally destructive facilities near-permanent exemptions from environmental law.361 Second, and relatedly, the state should create periodic procedural opportunities for re-examining the status of dams . Here, the FERC relicensing

process provides a useful starting point, though shorter license terms would be preferable, as would schedules creating concurrent review processes for all dams within a watershed.362 Rivers, dams, and societal needs all change over time, and a relicensing process provides a valuable opportunity to examine whether a dam still makes sense, or whether it should be operated differently, or removed. Third, and finally, the state should have a

meaningful dam safety program that actually gets implemented.363 Dams do fail, sometimes with tragic consequences, and a failure to monitor dam conditions therefore is a public safety problem as well as a missed opportunity to reconsider dams’ existence or operations.364 All of these recommendations might raise one question: do states have the power to make these changes? Legally , at least, the answer should be a clear yes. Dams and the associated water rights do implicate systems of property law, and to many people, property rights connote permanence.365 But property rights nearly always are subject to reasonable regulation, and that has been particularly true of rights that implicate water resources and wildlife.366 Dams themselves fall well within that tradition. Even at the time of the Founding Fathers, statutes requiring fish passage and, sometimes, dam removals were quite prevalent.367 James Madison himself sponsored one such law, and the Framers appeared to view those

laws as entirely compatible with property law.368 That compatibility should persist to the present day, and should offer states ample latitude for more robust regulatory governance.369 B. Information While legal constraints are essential to the success of any trading schemes, softer forms of regulation also have key roles to play. Most importantly, a reform-minded state could improve its dam policy by providing more

information about dams. A model dam information program would include several elements. At the most basic levels, states could maintain more thorough dam inventories, which include the results of recent environmental and safety reviews, and make the information in those inventories publicly available. States also could work with federal agencies and non-profits, many of which already are engaged in mapping projects to identify fish passage impediments and sites with hydropower potential, to make the results of their studies available on-line.370 And, more ambitiously, states could sponsor and disseminate (or require dam owners to fund) basin-scale dam optimization studies, and could make those studies available for public review.371 All of these changes still would leave information gaps, for the complexity of river systems would ensure that some key information is left out. But they would at least provide would be dam traders with

information about which dams to target and which people to contact. C. Trading System Guidance The state also could provide informational support in another key way. Established environmental trading systems often are supported by detailed, pre-specified rules and ample agency guidance.372 The Army Corps of Engineers and EPA, for example, have spent years refining and explaining their approaches to wetlands mitigation, and the resulting guidance has helped create predictability and build public- and private sector expertise.373 If dam trading is to succeed, a similar level of effort will be necessary . States could offer that guidance in

several ways. First, following the recent example of North Carolina, they could pre-specify generic currencies and trading ratios for mitigation projects involving dam removals.374 Second, they could study river basins , identify potential removal and upgrade sites , and establish basin-specific or even dam specific trading ratios. Third, if states decide that pre-set currencies and trading ratios are too crude to capture the environmental complexities of dam systems, they at least could set forth criteria and procedures for reviewing potential trades. Absent that sort of guidance , each dam trade will be a one-off exercise , with all the time, costs, and risks associated with doing something almost completely new. With it, potential trade participants will at least have a set of structured expectations and a starting point for institutional learning. For the state, fulfilling this recommendation will not be easy. Any set of trading system rules will necessarily ignore some of the complexity of the real world, and thus will allow traders to dismiss some consequences that reasonable people would care about.375 For that reason, the scientists involved in basin-scale studies often seem quite reluctant to translate any of their recommendations into policy prescriptions. But some messiness is an unavoidable component of any regulatory system, including the status quo.376 The key question, then, is not whether a trading system would involve serious flaws; no doubt it would. Instead, it is whether

trades could improve on existing legal systems that leave a problematic status quo largely entrenched. The answer to that question might well be yes, and until innovations are tested, no one will know. D. Institutional Support Implicit in all the suggestions we have made thus far are two more recommendations. First, the state needs to have people who come to work thinking about improved dam systems. Second, the state needs to pay for those people’s work. The former recommendation is important because dam regulation requires policy innovation, and innovation is not the sort of thing that can be automated. Instead, all of the steps we have described require human expertise and judgment. And these steps are just the tip of the iceberg, for implementing an improved dam removal program will necessarily require working with other state agencies, federal agencies, local

governments and communities, water users, the hydropower industry, other dam owners, and environmental non-profits. The track records of state dam programs bear this out. It is no coincidence states with particularly robust dam removal programs (Pennsylvania, for example) have had environmental agency

staff assigned to dam management.377 The latter recommendation follows from the former. In an era of limited general funds, one cannot simply assume that financial support for dam management will magically appear, and we recommend that our model state consider alternative funding mechanisms. One possibility is a general dam ownership fee, which could be pro-rated to the scale of the dam. An alternative possibility is a revolving loan fund, which would use planning to support a mixed program of dam removals and hydropower upgrades, and then use some of the profits from the hydropower upgrades to replenish the fund and support new rounds of hydropower planning. A third, and more ambitious, possibility would be to impose a fee requirement on some other related activity, like

energy use or water consumption. Obviously all of these possibilities have their strengths and weaknesses, but the key point is that our state should avoid the circumstance, presently quite common for dam safety programs, in which a superficially robust program languishes for lack of financial support.378 E. Pricing Incentives So far, our recommendations have focused primarily on increasing environmental constraints upon existing dams. That is appropriate, for those constraints are presently too weak, but positive incentives also have a role to play. Some of the most important incentives involve creating a favorable economic environment for environmentally sensitive hydropower. There are several ways to do this. One is to ensure that the environmental impacts of other energy sources are

adequately regulated. Every subsidy or exemption directed at the fossil fuel industry, for example, effectively negates an economic edge that hydropower ought to receive.379 Similarly, any regulatory program that prices greenhouse gas emissions, like the northeastern states’ Regional Greenhouse Gas Initiative or California’s AB 32 program, will create collateral benefits for hydropower.380 An alternative, or perhaps complementary, mechanism is to pass a renewable portfolio standard that includes sustainable hydropower and to use environmental performance, not size, as the key criterion for inclusion in that standard.381

Massachusetts already has modeled this approach, and its innovation encourages hydropower while also providing incentives to generate that hydropower in relatively sustainable ways.382 * * * These reform proposals hardly exhaust the field. But a state that adopts the program we have described would be taking huge steps toward a more progressive dam policy, in which exchanges like the Penobscot River Restoration Project help lead to more sensible uses of rivers and dams.

States access more database and control more than 80 percent of US dams FEMA 20(Federal Emergency Management Agency, 8-19-2020, "National Dam Safety Program Resources for States," No Publication, https://www.fema.gov/emergency-managers/risk-management/dam-safety/resources-states)Your state is helping to protect you from dam failure. State governments regulate 80 percent of the approximately 87,000 dams listed in the National Inventory of Dams (NID). The NID is a congressionally authorized database, which documents dams in the U.S. and its territories. The database contains information about the dam’s location, size, purpose, type, last inspection, regulatory facts and other technical data. The information contained in the NID is updated approximately every two years and is maintained and published by the U.S. Army Corps of Engineers (USACE), in cooperation with the Association of State Dam Safety Officials (ASDSO), the states and territories and federal dam-regulating agencies. About 14,726 dams in the United States are classified as high-hazard potential, meaning that their failure from any means, including a terrorist attack, could result in loss of life, significant property damage, lifeline disruption and environmental damage. Visit the NID to find out if you live in an area at risk from dam failure.

Most dams belong to the states. Federal government only controls a small portion of dams.ASDSO 19 - Association of State Dam Safety Officials is a national non-profit serving state dam safety programs and the broader dam safety community. “Dams 101”, 6 – 25 – 2019, https://damsafety.org/dams101Today, every state except Alabama has a dam safety regulatory program. State governments have regulatory responsibility for 70% of the approximately 90,000 dams within the National Inventory of Dams. These programs vary in authority but, typically, the program activities include:Safety evaluations of existing damsReview of plans and specifications for dam construction and major repair workPeriodic inspections of construction work on new and existing damsReview and approval of emergency action plansThere are several federal government agencies involved with dam safety. Together, these federal agencies are responsible for five percent of the dams in the U.S. They construct, own and operate, regulate or provide technical assistance and research for dams. Included in this list are the Departments of Agriculture, Defense, Energy, Interior, Labor and State (International Boundary and Water Commission), the Federal Energy Regulatory Commission, Nuclear Regulatory Commission and the Tennessee Valley Authority. The Federal Emergency Management Agency administers the National Dam Safety Program, a program established by law in 1996 to coordinate the federal effort through the Interagency Committee on Dam Safety, to assist state dam safety programs through financial grants, and to provide research funding and coordination of technology transfer.

Solvency – Weather Mod States solve weather modification regulation better than the feds – interstate compacts over weather modification have historically been successfulHertz ’21 (MacKenzie, Judicial Clerk at United States Court of Appeals for the Eighth Circuit, “It's Raining, It's Pouring, Weather Modification Regulation Is Snoring: A Proposal to Fill the Gap in Weather Modification Governance” 2021 NORTH DAKOTA LAW REVIEW VOL. 96 Issue 1 https://law.und.edu/_files/docs/ndlr/pdf/issues/96/1/96ndlr31.pdf//AF)II. ANALYSIS: COMPREHENSIVE REGULATORY AND ADJUDICATORY FRAMEWORK FOR WEATHER MODIFICATION AT THE STATE ADMINISTRATIVE LEVEL Existing legal frameworks fail to effectively regulate weather modification. The common law lacks the capacity to address harms that may result from weather modification. The federal government has not taken a substantive regulatory role. State governance is uncomprehensive and fails to fill this gap left by the common law. Each state should develop a comprehensive regulatory framework over weather modification at the administrative level. This framework should effectively utilize all four components of governance: (1) reporting, (2) licensing and permitting, (3) public participation, and (4) liability framework.201 Most importantly, states must develop a means to redistribute the costs of weather modification, currently borne by those harmed alone, with a defined liability and adjudicatory framework, such as one mirroring the Vaccine Injury Compensation Program or the Veterans Benefits Program. A. WHY IS STATE-LEVEL GOVERANCE PREFERABLE? State, rather than federal or local, is the appropriate level of government for weather modification. Of course, the federal government could substantively regulate weather modification202 given that weather is not a local phenomenon and moves without regard to government boundaries.203 Accordingly, weather modification operations may inevitably affect more than one state, becoming a multi-state issue.204 Yet, the state level remains the preferential level of government. First, the federal government has demonstrated an unwillingness, or inability, to offer comprehensive weather modification governance.205 Next, though weather modification effects have the potential to cross state lines, no such interstate disputes have arisen.206 To the contrary, states have historically entered into interstate compact s to cooperatively execute weather modification projects,207 with some state legislation providing for the same.208 Moreover, with governance at the state level, states may tailor their approaches for their unique needs and preferences, while keeping governance close to those affected by projects and, as such, more susceptible to influence.209 Finally, the state level is preferable to local governance because local governments, such as counties, are too geographically small and lack the resources to address weather modification issues.210 Local government units too severely restrict geographical control over weather modification, failing to account for the migratory nature of weather and the potential downwind effects of weather modification operations. B. WHY ARE STATE ADMINISTRATIVE AGENCIES PREFERABLE? State governments should delegate authority to state administrative agencies to carry out and refine weather modification regulation. Regulation at the state administrative level offers the following advantages: (1) expertise , (2) flexibility , and (3) comprehensiveness .212 First, experts in fields relevant to weather modification are likely to staff administrative agencies.213 Because weather modification is a complicated science, it is critical that those governing it understand the technology and potential consequences. While there is no guarantee that agencies will always employ experts, it is more likely that those administrators will have expertise than legislators or judges.214 And even if administrators are not experts at the time they start with an agency, because their work will focus solely on weather modification, they will gain expertise during their time with the agency.215 Next, in agencies empowered to create and change weather modification regulations, administrators will be able to adjust regulations as technology develops.216 Indeed, it is easier to amend regulations than statutes.217 Flexibility is necessary for evolving technology .218 Finally, administrative agencies provide comprehensive governance. Most judicial and statutory regulation has been incomplete.219 Administrative governance, which can take on both quasi-legislative and quasi-judicial roles, would be all-encompassing.220 Moreover, a specialized regulatory body can facilitate continuous supervision.221 In short, administrative governance is preferable because of these benefits—expertise, flexibility, and comprehensiveness.

States have authority to regulate weather modificationDeFelice & Keyes ’16 (Thomas, long-standing member of the Weather Modification Association, Conrad, Emeritus Professor and Department Head, New Mexico State University “Guidelines for Cloud Seeding to Augment Precipitation” (3rd edition) 2016 Chapter 1 ASCE Manuals and Reports on Engineering Practice No. 81 http://ndl.ethernet.edu.et/bitstream/123456789/60459/1/1027.pdf#page=68//AF)Chapter 3 of this manual covers the recent developments pertaining to legal implications of the use of cloud seeding technology. Awareness of public concerns, a responsive and well-guided public involvement program, a corresponding decision process, and ongoing evaluation of both the direct and indirect effects will provide many appropriate checks and balances as cloud seeding programs are conducted. If stakeholder groups and public concerns, perceived or otherwise, are not addressed prior to a project, a community might not accept a cloud seeding project within the watersheds surrounding the community in which it lives. Social, environmental, and economic factors also will affect whether a cloud seeding program is accepted by a community. Risk–benefit assessments in each of these categories, relative to alternatives for providing more water, are appropriate. The experiences from

more than 60 years of seeding clouds, relevant lessons-learned exercises, conferences, discussions, and general public forums have generated, among other things, environmental issues (risks or impacts) including potential effects on cultural resources, erosion rates, duration of snowmelt, and contributions to the greenhouse effect. Legal guidance and restraints concerning cloud seeding ensure fair balance between opportunities to advance individual and group desires and concerns and the need to consider the rights of the remainder of society. The development of environmental impact statements (EISs) and reports has been necessary in some cases. Some early environmental concerns focused on the seeding agent, i.e., the ice-forming nucleant, AgI (silver iodide). Heavy metals occur in nature, and residual silver from seeding is normally produced in concentrations far below toxic levels (e.g., WMA 2009). This is only one of many environmental aspects of cloud seeding. It should be recognized that effects of added water on the environment could be negative and positive. Organizations that undertake operational cloud seeding should be prepared to invest the considerable time and costs of preparing EISs, especially if federal funds are used, and to consider the subsequent costs of environmental monitoring during operations (e.g., Elliott et al. 1995). Some states require the sponsorship of a weather modification operation to be responsible for conducting preliminary studies to assess, and quantify, various impacts the proposed seeding operations may have on the environment. The chapter on legal considerations applied to atmospheric water management or cloud seeding has been adapted from Davis (1995) with adjustments to reflect recent developments pertaining to legal implications of the use of cloud seeding technology. Legal considerations apply to atmospheric water development implementation decisions in the same way that they apply to development of any other part of the hydrologic cycle. The ability of the federal government to affect weather modification policy resides within various appropriation acts that make government funding available for research in and development of cloud seeding technologies. The only federal statute governing weather modification pertains to reporting activities ; practically all of American law specifically targeting weather control activities rests with the states . As a means of avoiding misapplication of the technology by poorly qualified individuals; by groups focusing narrowly on special interests’ benefits; or in uncontrolled, unmonitored, or conflicting projects, a legal system has gradually been developed for controlling the application of the cloud seeding technology. Many states in the United States have regulatory laws in place. Licensing, permitting, and reporting may be required. A U.S. law requires that the people who are carrying out weather modification activities report them (Elliott et al. 1995). Davis (1995) provided a list of current state statutory and regulatory references on weather modification. States are regulating cloud seeding now Harvey, 21 (Chelsea Harvey, environmental journalist specializing in climate change, energy and environmental science and policy with a master's degree in health, science and environmental reporting from NYU, 3-16-2021, accessed on 7-15-2021, Scientific American, "Eight States Are Seeding Clouds to Overcome Megadrought", https://www.scientificamerican.com/article/eight-states-are-seeding-clouds-to-overcome-megadrought//AF)

The mountaintops rumble to life unnaturally each year as snow clouds darken the sky across the West. Open flames burst from the throats of metal chimneys, mounted on squat towers nestled among the peaks. With a low hiss, puffs of particles belch from their mouths into the air, where the wind catches them and whisks them away. These aren’t ordinary particles. They’re tiny bits of crushed-up silver iodide, a crystal-like photosensitive substance once used in photography. But it’s not used to take pictures out in the mountains. It’s meant to make snow. As the wind whips the particles across the mountaintops, drafts of air sweep them higher into the sky—so high that some of them eventually touch the clouds. There, an elegant transformation takes place. The crystalline silver iodide particles have a structure similar to ice—and inside a cloud, like attracts like. Water droplets begin to cluster around the particles, freezing solid as they gather together. These frozen clusters eventually grow too heavy to stay in the air. They fall from the cloud and drift gently toward the Earth, dusting the mountaintops with fresh snow. This is not a page from a science fiction novel. “Cloud seeding” is a real practice—in fact, it’s been around for decades. It’s used today to boost precipitation in at least eight states across the western U.S. and dozens of countries around the world. Interest in cloud seeding is growing as temperatures steadily rise, increasing drought risks in places like the Mountain West. But there’s a catch. Scientists aren’t sure how well cloud seeding works today, let alone in a warmer climate. Amid growing concerns about water resources in the western U.S., scientists are working to answer those questions. Today, cloud seeding research represents the cutting edge of weather and climate science—a convergence of questions about the influence of warming on our dwindling water resources and our ability to control those consequences. “Certainly we’re in a better position now to address that question than we were 10 years ago,” said Jeff French, an atmospheric scientist at the University of Wyoming. “The state of the science has progressed to the point that it is a question that we can and should be trying to address now.” Cloud seeding can take a few different forms. In some places, it’s used to boost rainfall or prevent hailstorms. But in the U.S., it most commonly aims to enhance snowfall, and usually with silver iodide. Extra snow can be a boon for water resources, especially in places like the drought-plagued West. Snowpack is a vital source of fresh water for millions of people across the country when it melts in the spring. Boosting snowpack is being pursued with growing urgency. Much of the western U.S. has been gripped by drought for the last 20 years. Scientists recently concluded that the past two decades represent the driest span in the region since at least the late 1500s. This “megadrought” has been heavily influenced by climate change, they found. Rising temperatures and the ongoing drought have taken a major toll on Western water resources. Recent studies find that large patches of the Mountain West have experienced major snowpack declines over the last few decades (Climatewire, Dec. 13, 2018). The snow season is also growing shorter as the climate warms and spring gets an early start. Meanwhile, Western water managers are contending with the growing threat of shortages. Flow has dwindled on major water systems like the Rio Grande and the Colorado River, which each supply water to millions of people. With temperatures steadily rising, cloud seeding poses one attractive solution. “Water managers basically have two choices, and both of them are implemented,” said French. “One is to somehow reduce the demand through conservation, and the other is to somehow increase the supply. And cloud seeding is a relatively inexpensive proposition.” Proving that it works, though, is another matter. Weather experiments are notoriously difficult to conduct. The scientific gold standard would be a study that proves cloud seeding produced an outcome that definitely would not have happened without it. But that kind of research requires a combination of specialized experimental design and highly advanced technology. For most of cloud seeding’s long history, it just wasn’t possible. Only within the last few years has technology advanced enough for researchers to really dig into the problem. “We now have much better tools to try to observe cloud seeding as it’s happening,” French said. “So it’s sort of about taking this new technology that has been developed over the last 20 years, or improved upon over the last 20 years, and applying it to really a very old problem.” Humans have been experimenting with weather control for the better part of the last century. Vincent Schaefer, a researcher with General Electric, is often credited with the first cloud seeding experiments in the 1940s. Much of Schaefer’s work during and after World War II centered on preventing aircraft from icing over in midair. So he designed a special homemade freezer to help him better understand the way ice forms inside clouds. As the story goes, Schaefer entered the lab one day to discover that his freezer had been turned off. Hoping to cool it as quickly as possible, he placed a block of dry ice inside the box. A cloud of glistening ice crystals instantly formed in the air. In 1946, Schaefer conducted the first true cloud seeding experiment by aircraft. He dropped 6 pounds of crushed dry ice into a cloud in the Adirondack Mountains of New York. Almost immediately, snow began to fall. In later experiments, Schaefer and other GE colleagues would discover that certain types of particles are more effective at helping ice

crystals form. Silver iodide, they found, is one of the best. Weather modification quickly captured the attention of the U.S. government. Over the next few decades, it would fund cloud seeding experiments on everything from drought management to military applications. In 1947, Project Cirrus—a collaboration between GE and the U.S. military—made history as scientists’ first attempt to modify a hurricane. On Oct. 13, the operation dumped nearly 200 pounds of dry ice into a cyclone that was churning off the coast of Florida. In the 1960s and early 1970s, the federal government continued to experiment with the idea of cloud seeding hurricanes—but to little avail. Scientists eventually concluded that it wasn’t effective. Beginning in the early 1960s, the Bureau of Reclamation funded a series of cloud seeding experiments known as Project Skywater, aimed at boosting water resources in the Western states. Reports suggest the project had mixed results. In the late 1960s and early 1970s, the U.S. military even experimented with weather modification as a weapon of war. Operation Popeye, as it was dubbed, aimed to generate enough rainfall to disrupt enemy supply routes in Vietnam. These efforts were short-lived. In 1977, an international treaty banned the use of weather modification for military purposes. There was a common thread among many of these early experiments: Either they weren’t useful, they were quickly discontinued or scientists couldn’t tell how well they were working. “There was a ton of research done in the ‘60s and ‘70s and ‘80s,” said French, the University of Wyoming scientist. “But all of that kind of came to a halt when I think there was a realization that agencies were spending millions upon millions of dollars year after year, and the results continued to sort of be inconclusive.” The problem, he said, is that weather modification studies are really difficult to design and carry out. To prove that cloud seeding has a real effect, scientists have to demonstrate that whatever outcome it produces would not have happened without it. That requires setting up an experiment with at least two tests—one with cloud seeding and one without it—in the same location and under identical weather conditions. Because the weather changes so quickly, that’s really difficult to do. And even when it’s possible, such studies require advanced monitoring technology, including high-tech radar. This kind of tech just wasn’t widely available until recently. That means cloud seeding research has mainly relied on statistical studies instead. These studies measure the precipitation produced with cloud seeding in one location, and then they compare it to a different location where no cloud seeding took place. The two settings aren’t identical in these kinds of studies. That means they don’t definitively prove that the precipitation produced by cloud seeding in one area would not have happened without it. In 2003, the National Research Council published a comprehensive report on weather modification, highlighting these problems. It concluded that “there is still no convincing scientific proof of the efficacy of intentional weather modification efforts.” Still, NRC recommended continued research on weather modification—in no small part because of its potential to address the West’s worsening water concerns. That same hope has led state water agencies to keep funding cloud seeding operations, even after federal research efforts dropped off in the 1980s. “I think there’s a pretty easy explanation for why it continued,” French said. “Cloud seeding is rooted in a pretty solid, well-understood physical basis of why it should work.” Today, cloud seeding operations take place in at least eight states across the western U.S., with varying levels of investment often shared among state agencies , utilities and private companies such as mountain resorts. Cloud seeding programs in the upper Colorado River Basin, for instance, cost around $1.5 million each year. The costs are split among state agencies in Colorado, Utah and Wyoming, where the majority of the operations take place, as well as Nevada, California, New Mexico and Arizona, which also stand to benefit from increased flow on the Colorado River. In the last few years, cloud seeding has featured more prominently in drought management strategies across the West. The cost-sharing agreement in the Colorado River Basin was finalized in 2018, after states had spent years individually managing their cloud seeding operations. The agreement extends through the fall of 2026. Since 2018, Wyoming and Colorado have strengthened their programs by investing in aerial cloud seeding operations—that’s seeding conducted by aircraft—in addition to the ground-based machines they already have scattered throughout the mountains. These are relatively inexpensive investments, all things considered—a low risk for a potentially high reward. But is it actually making a difference? Most programs point to statistical studies to justify their efforts. These studies indicate that seeded clouds can produce around 5% to 15% more snowfall compared with areas where no cloud seeding took place. If that’s right, it puts the cost of cloud seeding at around a few dollars per acre-foot of water (equivalent to about half an Olympic-size swimming pool). That’s far less expensive than the cost of many other water-saving interventions, such as water conservation, recycling or desalination, which can cost hundreds of dollars per acre-foot.

Solvency – Wetlands States can impose increased protections of wetlands and state waters beyond the federal scopeHenry Holmes '20 - J.D. Candidate, Case Western Reserve University School of Law in Cleveland, Ohio; conservationist [Henry Holmes; ; 09-xx-2020; "ROTECTING WETLANDS: ENVIRONMENTAL FEDERALISM AND GRASSROOTS CONSERVATION IN THE PRAIRIE POTHOLE REGION"; ARIZONA JOURNAL OF ENVIRONMENTAL LAW & POLICY; https://www.perc.org/wp-content/uploads/2020/09/henry-holmes-protecting-wetlands-final.pdf; accessed 7-13-2021 (nBrown)]State legislatures may enact or amend laws to protect state waters , including wetlands, that are not regulated under federal law. Most states define “waters of the state” much more broadly than the EPA and the Corps, given that water is a primary responsibility of the states . 108 Less than half of the states, however, currently have their own permitting programs for freshwater wetlands.109 Although, as Adler notes in his analysis of the impact of federal action on state environmental regulation, “states receive little inducement to assume responsibility for administering the Section 404 program in the federal government’s stead.”110 To illustrate the impact of this disincentive under the CWA, consider that,

prior to the first federal wetlands regulation in 1975, every coastal state in the conterminous states except Texas adopted wetlands regulations in some form .111 Therefore, it does not necessarily follow that states would be unwilling to increase state wetlands regulation following decreased federal regulation.

Some states may legislate additional coverage of state wetlands . 112 For states with comprehensive coverage, changes to WOTUS may have less of an impact. Minnesota, for example, has a state permit program and an aquatic resource program that employs about 22 people.113 The remaining states in the PPR rely solely on CWA § 401 water quality certification under the CWA and do not have state permit programs.State environmental agencies may also seek to regulate state waters administratively, to the extent they are able under state law. Over two-thirds of the states, however, have laws that restrict the authority of state agencies to regulate waters beyond what is required under the CWA.115 Part I of this Article

detailed the federal minimum standards for WOTUS regulation ; a stringency “floor ” —both under the 2015 Rule and the 2020 Rule.

South Dakota law, for example, restricts any regulation beyond the minimum standards set forth under any comparable federal program.116 Other state statutes in the PPR contain “qualified” stringency prohibitions to agency regulation that create restrictions, but do not expressly create a stringency “ceiling” relative to federal law. In both instances, state legislatures can of course enact legislation delegating additional authority to the agencies or explicitly regulating certain wetlands (without delegation to an agency). This section examines existing stringency prohibitions in three states in the PPR across this continuum.

States solve specifically for wetland regulationsCRS '6 [CRS; ; 2-2-2006; "The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond"; No Publication; https://www.everycrsreport.com/reports/RL33263.html; accessed 7-12-2021 (nBrown)]Whatever gaps in wetland regulation result from reduced federal jurisdiction arguably could be filled, at least in part, by other federal or state and local programs and actions. For example, some assert that wetland restoration and creation programs, such as the Wetlands Reserve Program and the Coastal Wetlands Restoration Program, or private conservation efforts can provide protection, even if the wetland is no longer jurisdictional under federal law.72 However, others respond that such programs are likely to be incomplete in filling gaps, since they apply primarily to rural areas and do not apply to the one-third of the nation's lands in federal ownership. Moreover, they were never intended to be a seamless group that would fill all possible gaps.SWANCC,   Rapanos, and the subsequent lower court decisions also highlight the role of states in protecting waters not addressed by federal law. From the states' perspective, the federal Section 404 program provides the basis for a consistent national approach to wetlands protection. But if a larger portion of wetlands are no longer federally jurisdictional, they say, it can be argued that the Section 404 program no longer provides a baseline for consistent, minimum standards to regulate wetlands. None of these court rulings prevents states from protecting non-jurisdictional waters through legislative or administrative action, but few states have done so. Prior to SWANCC, 15 states had programs that regulate isolated freshwater wetlands to some degree, but state officials acknowledge that these programs vary substantially from some that are comprehensive in scope to others that are limited by wetland size or have exemptions for agriculture and other activities.73 Since 2001, a few states have passed new legislation or updated water quality regulations; the issue remains under consideration in several states, where competing proposals that are viewed by some as strengthening and by others as weakening wetland protection have been debated.74Critics of broad assertion of federal jurisdiction over water resources point out that most states have authorities to regulate waters of their state, often beyond the scope of federal jurisdiction. In some cases, however, their ability to regulate effectively may be compromised, because state rules often are tied to federal definitions. The gap produced by reduced federal jurisdiction is most evident in the 32 states that have no independent wetlands programs and that typically have relied on CWA Section 401 water quality certification procedures to protect wetlands. Pursuant to Section 401, applicants for a federal permit must obtain a state certification that the project will comply with state water quality standards. Consequently, by conditioning certification, states have the ability to affect the federal permit and to exercise some regulatory control over wetlands without the expense of establishing independent state programs. However, as described previously, diminished CWA jurisdiction which affects the Section 404 program also limits the reach of other CWA programs, including Section 401.

Solvency – Groundwater Congress grants states sole jurisdiction over groundwater and non-point source pollution EPA '19 [EPA; ; 04-23-2019; "Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants From a Point Source to Groundwater"; Federal Register; https://www.federalregister.gov/documents/2019/04/23/2019-08063/interpretive-statement-on-application-of-the-clean-water-act-national-pollutant-discharge; accessed 7-13-2021 (nBrown)]Courts have observed that nonpoint source pollution—the broad category of other forms of water pollution that do not fall within the point source definition and not defined under the Act—can be understood as “all water quality problems not subject to Section 402,” the portion of the statute requiring NPDES permits. Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 166 (D.C. Cir. 1982). In

addition to the NPDES permitting program, as another means of accomplishing the Act's objective, Congress reserved to states their exclusive role in regulating nonpoint source pollution . Am. Farm Bureau Fed'n v. EPA, 792 F.3d 281, 289 (3rd Cir. 2015) (“States in turn regulate nonpoint sources. There is significant input and oversight from the EPA, but it does not regulate nonpoint sources directly.”); see also Or. Natural Desert Ass'n v. U.S. Forest Serv., 550 F.3d 778, 780 (9th Cir. 2008) (“The CWA's disparate treatment of discharges from point sources and nonpoint sources is an organizational paradigm of the Act.”).While the point and nonpoint source distinction is the quintessential inquiry related to the discharge of pollutants to surface waters, as explained further below, this inquiry is not relevant as applied to groundwater. Rather, the text, structure, and legislative history of the CWA demonstrate Congress's intent to leave the regulation of groundwater wholly to the states under the Act. See, e.g., Village of Oconomowoc Lake v. Dayton Hudson Corporation, 24 F.3d 962, 965 (7th Cir. 1994) (“[T]he Clean Water Act does not attempt to assert national power to the fullest . . . . Congress elected to leave [regulation of groundwaters] to state law[.]”); Tenn. Clean Water Network v. TVA, 905 F.3d 436, 439 (6th Cir. 2018) (“[T]he CWA is restricted to regulation of pollutants discharged into navigable waters . . . leaving the states to regulate pollution of non-navigable waters” such as groundwater.).

EPA jurisdiction over pollution is limited to pollution that doesn’t effect groundwater Ariel Wittenberg and Ellen M. Gilmer '19 -  covers public health, writes about how climate change and chemicals impact peoples' lives, finalist for the Science in Society award from the National Association of Science Writers, worked for The Standard-Times in New Bedford, Mass, where her coverage focused on the offshore wind industry and toxic waste [Ariel Wittenberg and Ellen M. Gilmer, E&E News Reporterspublished; ; 4-16-2019; "CLEAN WATER ACT: EPA won't regulate pollution that moves through groundwater"; E&E News reporters; https://www.eenews.net/stories/1060169889; accessed 7-13-2021 (nBrown)]EPA won't regulate any pollution to surface waters that passes through groundwater .The Clean Water Act regulates pollution to surface water and requires permits for so-called point-source discharges to them.But questions have remained about whether the law regulates any pollution that ends up in surface waters, or only direct discharges.EPA now says it's the latter."The agency concludes that the best, if not the only, reading of the Clean Water Act is that Congress intentionally chose to exclude   all   releases of pollutants to groundwater from the [point source] program , even where pollutants are conveyed to jurisdictional surface waters via groundwater," the agency wrote in an interpretive statement posted online last night.If pollution travels through groundwater, EPA says, it "breaks the causal chain" between a source of pollution and surface waters.That could affect regulation of pollution from a variety of sources, including seepage from coal ash and manure management ponds , sewage collection systems, septic system discharges, and accidental spills and releases .

Solvency – Environmental Personhood Only states can implement environmental personhood effectively Johnson 17 (Thomas E. Johnson, “Enter Sandman: The Viability of Environmental Personhood to US Soil Conservation Efforts”, Vanderbilt Journal of Entertainment and Technology Law Vol 20, Is 1, ) ESOf the two approaches discussed above, New Zealand's is a more viable option in the United States. Following Ecuador's approach would require a constitutional amendment, which is highly impracticable under the US Constitution's framework -even assuming the presence of a similar grassroots movement to Ecuador's. If accomplished, such an approach could have a permanent effect, but ratification procedures would require the federal government to overwhelmingly support the measure-a condition that cannot easily be fulfilled while climate change remains a divisive issue in Congress. Direct replication of New Zealand's settlement would face the same obstacle, for it required representations by the Crown and the enactment of national statutes to bind the agreement. However, a similar result could be accomplished on a state level without the federal government's involvement. The UCEA provides a practical illustration of this concept. States developed the UCEA to uniformly apply conservation law in every state and "to remove common law impediments to conservation easements." Certain federal laws restricted its provisions, but the resulting state legislation provided interested parties with tremendous freedom to contract for particularized easement terms and conditions. Environmental personhood could be adopted using a similar framework. For example, a uniform statute could be drafted that (1) permits recognition of land as an entity with legal standing under state constitutions (2) vests ownership of the land to that entity, (3) establishes procedures to appoint and maintain a legal guardian that represents the land's evolving interests, and (4) prescribes strategies to advance those interests in light of environmental and economic concerns. These guiding principles would allow interested parties-including local communities and climate change advocates-to freely contract for land's natural rights, much like the Whanganui tribes in New Zealand or conservation easement holders in the United States. Unlike the inflexible application of conservation easements, however, environmental personhood would establish a legal guardian charged with the good-faith administration of the land's evolving interests. Those interests should expressly include the adoption of soil conservation techniques, the effective implementation of which could adapt as conservation technologies continue to advance. Moreover, the land's interests could be enforced in state courts, which already interpret the necessary contract and real property principles that would inform environmental personhood's implementation. Not all states might participate at first, but at least some have signaled an interest in mitigating climate change through cap-and-trade programs. Those same states could pave the way for environmental personhood as well. Additionally, legislatures could include tax benefits and other incentives to encourage landowners to consent to environmental personhood-much like the UCEA did for conservation easements.

Solvency – Offshore Drilling States and localities are more effective and efficient to do the aff through CMZA as their policies reflect citizens’ best interests.Walls ‘93, [Margaret A. Walls is an economist and Senior Fellow at Resources for the Future (RFF), an independent nonprofit research organization in Washington, DC. No Publication, https://www.jstor.org/stable/pdf/24884627.pdf?casa_token=TsCKx9DgAYQAAAAA:RBlDE1wHYwxYqOy675FX9TZzBybABP7uT5K4ecF_7CEnV7hOjphEtjgAlgX8kcz-26FRqtnNwPFXV36ik1oruVz9806ifqLNXgyOhNofWOZTIq7xTdF7] BHINTRODUCTION The federalist system of government in the United States has the potential to achieve greater efficiency in the provision of

public goods than a unitary system. Local and state gov ernments can make decisions that are in their citizens' best interests without imposing significant costs on the country as a whole. Moreover, society can benefit from having a diversity of types and amounts of public goods. Because individuals have different preferences—for public as well as private good—they will choose the mix of goods that is right for them. They can do this by moving to the community that provides the right mix.1 A federalist system also has the flexibility to allow some things to be left to the national government—provision of national defense, for example, or any public good where the benefits accrue to multiple jurisdictions. On the other hand, federalism can sometimes create conflicts among jurisdictions. For example, a state could have a policy at odds with the objectives of the national government or another state. In theory, solutions to such problems exist, but in practice there can be impediments to their use. This paper explores the relationship between federalism and natural resources in the United States, in particular the oil and gas resources of the Outer Continental Shelf. The Outer Continental Shelf (OCS) is the land under the oceans from state water boundaries

(3 miles offshore, in most cases) to 200 miles offshore. The federal government has jurisdiction and control over the OCS and leases portions of it

to private corporations for the purpose of exploring for, developing, and producing oil and gas. The OCS Lands Act Amendments (OCSLAA) of 1978 state that federal government policies and procedures should "expedite exploration and development on the OCS in order to achieve national economic and energy goals, assure national security, reduce dependence on foreign sources, and maintain a favorable balance of payments in world trade."2 This "energy security" goal is clearly the main one pursued by the federal government, but the OCSLAA also state that policies should "balance orderly energy resource development with protection of the human, marine, and coastal environments."3 The state and local gov ernments have a voice in OCS activities primarily through the

Coastal Zone Management Act (CZMA). The "consistency provision" of the CZMA requires that all federal activities, including OCS licensing and

permitting, that affect a state's coastal zone be "consistent with" the state's coastal zone management plan. In recent years, and

especially during the accelerated leasing program of the 1980s, the states—in particular, California—have called on the consistency provision a great deal. As a

result, they have managed to delay lease sales, impose restrictions on activities on leases, and delay exploration plans, development activity, and production . Two to three years usually pass between the time a lease sale is proposed by the federal government and the time it is actually held. The time between sale and actual production of oil and gas from a tract can also amount to several years. Expenditures on OCS-related litigation are substantial.4 This paper analyzes the OCS in a public good framework and assesses the economic efficiency aspects of federal versus state jurisdiction. The paper argues that state jurisdiction would be more efficient than federal, particularly the current system of fed eral jurisdiction with state involvement through the CZMA. State governments have an incentive to take only the costs and benefits of their own citizens into account. Therefore, in order for the level of OCS resource development under state control to be efficient, there must be no external costs or benefits—i.e., no costs or benefits that accrue to citizens outside the coastal state. If such external costs or benefits exist, there may be a role for the federal government. The paper identifies two possible externalities: energy security benefits from OCS development and environmental benefits from not developing.5 This paper finds that the argument that energy security is enhanced by developing OCS oil and gas is flawed. It also concludes that any external environmental benefits from not developing the OCS can be incorporated into coastal states' decisionmaking through federal government grants similar to those provided by the CZMA. These findings suggest that coastal state control over the OCS should be preferred to federal control .

Solvency – WOTUS Expansion The counterplan solves – states can create their own regulations on par with the fedU.S. Environmental Protection Agency and Department of the Army, 2019, " Economic Analysis for the Final Rule: Definition of “Waters of the United States”— Recodification of Pre-Existing Rules," United States federal government, https://www.epa.gov/sites/production/files/2019-09/documents/wotus_rin-2040-af74_final_ea_508compliant_20190905.pdf, accessed 7-14-2021 (Kent Denver--EA)As described in Sections II.A.2, there are number of possible ways that states could respond to changes in CWA jurisdiction. States may adjust their regulatory programs to match any changes in federal CWA jurisdiction. If CWA jurisdiction is reduced and states followed suit, states and regulated entities would avoid costs and the public would forgo water quality and wetland benefits. At the other extreme, statelevel baseline regulations may be broader than the federal requirements. In this case, if CWA jurisdiction is reduced at the federal level, states may simply maintain their broader, baseline regulations . It is also possible that if CWA jurisdiction is reduced at the federal level, a state could choose to revise its current state laws and programs to continue the baseline actions required by the federal government. In the latter two cases, state requirements would fill any regulatory gap in the wake of a change in the definition of “water of the United States.” This state “gap-filling” would result in no change in compliance costs to the regulated community and no change in environmental benefits (that is, neither avoided costs nor forgone benefits would occur), suggesting no net impact in the long run. The agencies emphasize, however, that if states make regulatory changes to maintain the previous federal baseline level of CWA jurisdiction then they will likely incur some transition costs in the short run, and some of the cost of implementing programs will be transferred from the federal government to the states. The cost to states could be more or less than the costs to the federal government. Another potential outcome is a federalism scenario. In this scenario, when requirements imposed by the federal government are altered, state and local governments may be able to find more efficient ways of managing local resources, consistent with the theory of “fiscal federalism. ” 61 States are more likely to be knowledgeable about which waters their local constituents value and may more efficiently manage them. States can choose to allocate more resources to manage high-valued waters and wetlands and reduce regulation on less valued waters and wetlands. Depending on whether a newly characterized nonjurisdictional water is highly or lowly valued, states may choose to regulate or not regulate it, and the 61 For example, see Oates, W. E. (1999). An essay on fiscal federalism. Journal of Economic Literature, 37(3), 1120-1149, or Oates, W. E. (1998). On the welfare gains from fiscal decentralization. University of Maryland, Department of Economics. III Analysis of the Avoided Costs and Forgone Benefits from Returning to the Pre-2015 Practice Economic Analysis for the Final Rule: Definition of “Waters of the United States”—Recodification of Pre-Existing Rules | 52 compliance costs could increase or decrease, respectively. And in turn, the corresponding environmental benefits could increase or decrease. In either case, however, net benefits will increase, assuming a state can more efficiently allocate resources towards environmental protection due to local knowledge of amenities and constituent preferences (see Section II.A.2 for details). In short, state responses to a change in the definition of a “water of the United States” fall along a continuum and depend on legal and other constraints. States that have laws defining “waters of the state” to be no broader than “waters of the United States” cannot currently regulate past the federal definition. Cost savings and forgone benefits from these states should be included in the costs and benefits of this final action. In contrast, states that have regulations of waters, including wetlands, that are as broad or broader than the 2015 Rule would not be affected by this final action. Therefore, no cost savings or forgone benefits should be assumed for these. States that fall between these extremes can be evaluated by either including or excluding them from the estimates of cost savings and forgone benefits.

Solvency – Allocation Water allocation has previously been deferred to the states, they solve best.Brougher 11 [Cynthia Brougher, Legislative Attorney at the Congressional Research Service, “Indian Reserved Water Rights Under the Winters Doctrine: An Overview”, Congressional Research Service, June 8, 2011. https://nationalaglawcenter.org/wp-content/uploads/assets/crs/RL32198.pdf]Although the federal government may act under a number of constitutional authorities to regulate water, in most instances it has deferred to the states . States either adhere to a riparian or prior appropriation system of water allocation. In a riparian system, landowners adjacent to a waterway share a common right to use the water, with a limitation of reasonableness.9 In times of water shortages, all riparian rights holders must share the burden of

the shortage proportionally. Other states, typically the drier western states, use a prior appropriation system of water rights. Under prior

appropriation, water users who make beneficial use of a water supply, regardless of their location relative to it, obtain a right to that water under a seniority system that reflects the order in which the right was obtained.10 The date that the user put the water to beneficial use is known as the priority date. Some states incorporate elements of both the riparian and appropriation doctrines. Because riparian rights’ holders must share the burden of any

water shortage proportionally, Indian reserved water rights generally do not have a noticeable impact in riparian jurisdictions . In prior appropriation systems, recognition of a tribe’s water rights is often times more contentious because, in times of shortage, junior users may receive none of their allocations after a tribe with senior takes

its share under the Winters doctrine. Tribes often have seniority because the laws, treaties, executive orders, and other legal agreements that created the Indian reservations (and thus the priority date for purposes of seniority) predate other settlement of the area.11 Allocation of scarce water is further complicated by the fact that a tribe’s reserved water rights under the Winters doctrine are not lost if the tribe does not maintain continuous use of the rights. As a result, junior rights holders may

be unaware that a tribe has senior reserved rights, leaving the junior rights holder with little or no allocated water in some instances.12 Tribes may also acquire water rights under state law . That is, if water is available under the state water allocation system and a tribe requires water beyond what it receives under its federal reserved water rights, it may seek to acquire state water rights to supplement its federal reserved rights.

Water Rights are increasingly passing through state courts.Blumm 06 [Michael C. Blumm, researcher at Lewis & Clark College, “THE MIRAGE OF INDIAN RESERVED WATER RIGHTS AND WESTERN STREAMFLOW RESTORATION IN THE MCCARRAN AMENDMENT ERA: A PROMISE UNFULFILLED”, November 15, 2006. https://law.lclark.edu/live/files/266-364blumm]Although reserved water rights are the product of federal law, due to a 1952 appropriations rider known as the McCarran Amendment,6 federal reserved water rights are increasingly being interpreted by state courts. After the U.S . Supreme Court ruled that the McCarran Amendment waived the federal government’s sovereign immunity defense and gave consent for the government to be joined in state court suits determining the water rights of all users within a river basin,7 the Court ruled that reserved rights were subject to state adjudications .8 The Court then twice ruled that Indian reserved rights were subject to McCarran Amendment adjudications.9

The policies served by the McCarran Amendment, as Justice Brennan explained in the Arizona v. San Carlos Apache decision, are to avoid “duplicative litigation, tension and controversy between the federal and state forums, hurried and pressured decision making, and confusion over the disposition of property rights.”10 In dissent, Justice Stevens responded that federal courts were an appropriate forum for resolving Indian reserved water rights, and their decisions could then be incorporated into state decrees .11 Stevens observed that: “States and their citizens may well be more antagonistic toward Indian reserved rights than other federal reserved rights, both because the former are potentially greater in quantity and because they provide few direct or indirect benefits to non-Indian residents.”12 He cited a congressional promise in the federal courts’ jurisdictional statute that Indian tribes could invoke a neutral federal forum,13 and also the McCarran Amendment’s silence regarding Indian

tribal claims.14 Whether Justice Brennan’s or Justice Stevens’s view of the appropriateness of state court adjudications of Indian reserved water rights has proved more accurate , and whether the resolution of Indian reserved water rights claims actually produces streamflow restoration , have never been carefully studied. This Article attempts to fill that void by examining the assertion of tribal reserved water rights claims in six well-known cases over the last quarter-century. These cases form the bedrock of modern tribal reserved rights law in the McCarran Amendment Era. They include McCarran Amendment adjudications in five different western states, plus one federal court proceeding, and involve celebrated rivers like the Klamath, the Big Horn, the Yakima, the Snake, and the Gila, as well as Pyramid Lake. The Article first explains the case law these adjudications have produced. Although reserved water rights are the product of federal law, application of the McCarran Amendment has produced a fractured doctrine, as state courts make their own interpretations of federal law . This examination should help clarify the origins and nature of some these fissures. More importantly, the Article explores the result of the assertion of reserved tribal rights claims on streamflows in the West. The study reveals that reserved rights case law in the McCarran Amendment Era has not produced restored western streamflows. Instead, any streamflow improvements were more likely the product of settlements or from negotiations with state water agencies and congressional delegations after tribal reserved rights received judicial recognition. In short, by authorizing state courts to interpret federally-reserved water rights, the McCarran Amendment has forced tribes into hostile forums in which tribes must be prepared to compromise their claims for streamflows that fully support the purposes of the reserved rights, perhaps settling for stream improvements that can partially restore river ecosystems. Although tribal reserved water rights claims may open the door to discussions about streamflow restoration, in practice the McCarran Amendment Era has reduced these claims to mere bargaining chips rather than vehicles for achieving the purpose of reservations through streamflow restoration.

States ultimately control the allocation of water.Dumars 89 [Charles T. DuMars, Professor of Water Law at the UNM School of Law, “Symposium Introduction: New Challenges to State Water Allocation Sovereignty”, 1989. https://digitalrepository.unm.edu/nrj/vol29/iss2/2/]Most states followed the Wyoming system of allocating water by a permit. This system, coupled with the doctrine that a water right was a

quasi-exclusive property right (not tied to the locus of use), allowed the western states to oversee the movement of water to places of highest demand.4 Under this system, urban users could purchase the water rights of less economically productive rural users and thereby meet growing demands. Because the western states created the system of water allocation, they assumed that they alone could control the use of western waters, and for most of this century state allocation policy has been paramount to subsequently developed federal allocation policies. Even during the progressive conservation era, the federal policy was one of deference to state water law. In 1902, the federal government committed itself to a federal reclamation program for the West. Greater assertions of federal power over western waters accompanied the federal policy.

However, the states were able to subordinate federal allocation policy to state allocation policy because federal river basin development was never fully implemented and therefore no sweeping federal policy was needed. Furthermore, prior appropriation meshed nicely with federal reclamation policy because it supported the capture and storage of water in federally constructed reservoirs for both irrigation and municipal use. In the eyes of the western politicians and farmers, the federal government put up the capital for the reservoirs and distribution systems,5 but the western states continued to control the distribution of water by the law of prior appropriation. This was the nature of the federal-state partnership in water resources. This partnership based on federal dollars and state law worked well during the first two-thirds of this century because it was consistent with both state and federal policies for land settlement. At the federal level, the primary interest in the public lands was disposition, not management or development. At the same time, western states policy supported placing new citizens on those lands available for disposition. Strong cultural views supported the state prior appropriation doctrine as well. From the perspective of the pioneer, he was conquering the West and through the doctrine of prior appropriation, its waters. He was reasserting the discovery and conquest justification advanced by the European nations to claim sovereignty over the nation itself. This trend continued and western water institutions arose before the federal government asserted a strong interest in the minerals and waters located on the public domain.

Solvency – Foreign Affairs States can act as sovereigns in interstate disputes Watters 2013 (Molly M, Corporate Counsel, AWS Energy at Amazon Web Services (AWS), Lawyer, Attorney - Mergers & Acquisitions, Energy Transactions, Corporate, Finance & Investment Management, “Fish and Federalism: How the Asian Carp Litigation Highlights a Decifiency in the Federal Common Law Displacement Analysis”, Michigan Journal of Environmental & Administrative Law, Volume 2, Issue 2, https://repository.law.umich.edu/mjeal/vol2/iss2/6/ //JK ) Recently the Court took up the question of displacement of federal common law by the Clean Air Act in AEP v. Connecticut. The Court applied the conflict displacement rationale, finding that the Clean Air Act displaces the “common law right to seek abatement” of carbon dioxide pollution as a public nuisance.172 The Court took great interest in the Clean Air Act’s avenues for enforcement in holding that the Act provides the same relief as sought through federal common law.173 Justice Ginsberg, writing for the majority, held that Congress delegated the regulation of carbon dioxide emissions to the EPA and that EPA’s decision not to regulate is within that delegated power.174 “The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common

law.”175 Simply because the agency chose not to regulate does not give the federal courts authority to use federal common law to overturn that agency decision.176 Again, the Court recognized the need to defer to the EPA’s expertise and prevent “ad hoc, case-by-case injunctions.”177 Both the district and appellate courts correctly concluded that the States were entitled to bring a federal common law cause of action to abate the Asian carp public nuisance . However, the ambiguity in the effects of displacement (either field displacement or conflict displacement) highlights one of the deficiencies in the displacement analysis . Particularly when States are acting in their sovereign capacity, courts must recognize a State’s obligation to protect themselves from out-of-state sources of pollution . CONCLUSION In deciding whether a common law cause of action was

displaced when states are exercising their sovereign rights, courts should not only go through the Milwaukee II displacement analysis, but they must also consider additional relevant factors in deciding cases regarding states sovereignty. Specifically, courts should apply similar reasoning to the displacement analysis as has been discussed in the standing requirement and availability of alternative forums. The Court has previously recognized the special status of states in these analyses, and must continue to do so in the displacement analysis. Most recently in Massachusetts v. EPA, when discussing the standing requirement, the Court recognized the special status of the state of Massachusetts in bringing a claim as a sovereign entity . In discussing Massachusetts’ standing to challenge an EPA rulemaking petition, the Court recognized that Massachusetts has an “independent interest ‘in all the earth and air within its domain’” and in protecting its sovereign territory .178 The Court specifically references the dignity of states, which are not “mere provinces or political corporations ”; in the standing determination , it is significant if the plaintiff is a state acting as a sovereign.179 The Court notes that states give up certain powers when entering the Union, including traditional dispute resolution methods, such as invading or negotiating a treaty.180 Because states give up such power to the federal government, they are forced to rely on federal agencies and Congress to protect their interests.

The specific federalism issues at stake when states are unable to bring common law causes of action to abate nuisances originating in other states have been recognized in the Court’s decisions since Tennessee Copper. Bausinger highlights the “special solicitude” given to Massachusetts due to its sovereign status.181 This special solicitude given to Massachusetts in its attempt to protect its quasi-sovereign

interest is as applicable in the displacement analysis as in the standing analysis. In further recognition of the special federalism concerns arising out of interstate conflicts, courts note the need for remedies, when not provided by statute, in “what may not improperly be called interstate common law.”182 The special status afforded to states when bringing action against other states in their sovereign capacity originates in Justice Holmes’ majority opinion in Tennessee Copper v. Georgia. In an action to enjoin Tennessee Copper Company from releasing noxious gas over Georgia territory, Holmes stated, The case has been argued largely as if it were one between two private parties; but it is not . . . . This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain.183 In

acknowledgment of state sovereignty in bringing nuisance abatement claims, courts distinguish the need for alternate forums, state participation, and remedies as valid and unique considerations when dealing with state claims of right under federal common law.

Solvency – Fed Jurisdiction States have primary power over water this includes some jurisdiction in interstate waters and waters on federal lands Babie et al 2020 (Paul T, Personal Chair of Law in the Adelaide Law School of The University of Adelaide, Paul Leadbeter, Senior Lecturer, Prior to that he had been a partner in the Adelaide law firm, Norman Waterhouse where as a member of that firm's Environment and Planning team Graduate Diploma in Legal Practice, Kyriaco Nikias, University of Adelaide, Adelaide Law School, Department Member, “Federalism Fails Water: A Tale of Two Nations, Two States, and Two Rivers”, 29 Apr 2020. ENVTL. LAW AND LITIGATION, Vol. 35, Issue , https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3587149 // JK ) The U.S. Constitution nowhere expressly mentions water or governmental control over its allocation. As such, the powers enjoyed by the federal and state governments are either

found within an express delegation of power or are reasonably implied from the powers of the federal government, which may touch upon the allocation and use of water.61 While the federal government enjoys paramount power with respect to any powers conferred upon it,62 powers either implied or not expressly granted to the federal government are reserved by the Tenth Amendmen t63 to the states or to the people ,64 making water largely a matter of state competence .65 a. Federal Powers The place of water in U.S.

constitutional law is the subject of great complexity, allowing for extensive administrative institutional bodies with power over the allocation of water. 66 However, it is possible to summarize seven express provisions of the U.S. Constitution conferring upon the federal government power which may touch upon the allocation and use of the water resource:67 commerce,68 property,69 war,70

treaty-making,71 general welfare,72 equitable apportionment,73 and interstate compacts.74 And because of the separation of powers, it is possible to group these according to each branch of government capable of exercising them, for “the powers confided by the Constitution to one branch cannot be exercised by another. Nor is Congress ‘permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested.’”75 Thus, Congress is vested with exclusive power with respect to commerce, property, conducting war, the general welfare, and entering interstate compacts; the President with declaring war and treaty-making; and the 66 Supreme Court with original jurisdiction to determine equitable apportionments of water and to interpret interstate water compacts between states. Still, notwithstanding the exclusive jurisdiction of the respective branches, “Congress is

expressly empowered to make all laws ‘necessary and proper’ for carrying into execution its expressly delegated powers and ‘all other Powers’ vested by the Constitution in the Federal Government.”76 The powers with respect to commerce and property provide Congress the most comprehensive power with respect to water. The Commerce Clause confers power to act in furtherance of commerce, paramount to any riparian rights under state law concerning (1) control of navigable waters, and, if navigation or commerce is affected, the non-navigable waterways at the headwaters or non-navigable tributaries of such waters;

(2) protection against floods; and (3) the development of a watershed.77 The Property Clause confers upon Congress the unlimited authority to control the use of federal public lands , which, while

allowing states to create rights to use water in streams on such land , does not allow for the rights of the United States to be thereby destroyed.78 Congress has used this power to recognize the prior appropriation doctrine for waters on public

lands in the western United States, and to establish the federal property right in electrical energy generated by water falling through a federal dam.79 The presidential powers with respect to treaty-making and declaring war (and, indeed, the power of Congress to wage it) have received little judicial attention, although the former power has “existing and potential significance, particularly as to international streams. Also, by treaties with western tribes of Indians, the United States has reserved rights to use of waters and exempted them from appropriation under state laws.”80 The Supreme Court’s original jurisdiction with respect to equitable apportionment of interstate waters between states, when combined with the interstate compacts power of Congress, establishes an important

power used extensively throughout the history of the republic. The former “is a doctrine that was created by the Supreme Court to ensure that each state can enforce its right to an equal share of common When operating in conjunction with the congressional power to enter interstate compacts, this establishes the principle that [e]very state has a right to an equal share of interstate waters. When states dispute the share of water to which they are entitled, the dispute can be resolved by interstate apportionment compact, Congressional apportionment, or an equitable apportionment suit with the Supreme Court . Equitable apportionment cases

arise under the Court’s original and exclusive jurisdiction. Original jurisdiction allows states to file a lawsuit directly with the Supreme Court rather than starting at a district court, appealing to a circuit court, and

appealing again to the Supreme Court. Further, when the lawsuit is between multiple states, as in an equitable apportionment case, the Supreme Court has exclusive jurisdiction. A state that is being sued cannot claim sovereign immunity to avoid an original jurisdiction action because Article III . . . acts as a waiver of any state sovereign immunity. In an equitable apportionment lawsuit, state citizens are the beneficiaries of any relief granted by the Supreme Court. But the Eleventh Amendment prohibits

citizens from suing another state over interstate water rights. Thus, to avoid violating the Eleventh Amendment in equitable apportionment cases, states act in a parens patriae capacity even though state citizens are the ultimate beneficiaries.82 This dual interstate compacts-equitable apportionment power—as demonstrated in the Arizona v. California litigation, which began in 1931 and remains ongoing83—provides for the interaction of federal judicial and legislative powers, cultivating a fertile source of 81 potentially cooperative or flexible federalism. We will return to this issue in Parts II and III.84 b. State Powers When the

federal government legislates within its sphere of competence, the Supremacy Clause ensures that such law is the “supreme law of the land.”85 This power, operating in concert with the preemption doctrine developed by the Supreme Court of the United States, results in relevant federal legislation preempting state law, even in the case of state and federal laws that conflict with one another.86 As a general matter, in the absence of any federal law, however, a state law will operate, but only until such time as the federal government might legislate. Alternatively, where conflict

might otherwise occur, the two spheres of government can cooperate with respect to a given matter.87 The question then arises as to which powers the states exclusively enjoy in relation to water. An initial distinction must be drawn between interstate waters (flowing

through more than one state) and those entirely within one state. In the case of the former, “on the whole, the federal government’s powers have been used to guide and control the development of major streams in the country.”88 In the case of the latter, as the owner of all resources “occurring wholly within [its] borders,”89 and because the Tenth Amendment ensures that undelegated powers are reserved to the states, a state has “greater responsibility for the distribution and use of waters locally.”90 The powers reserved to the states with respect to water fall into three broad categories. First, the “police power” allows for the regulation of “various water activities for the general welfare, such as the production of water for domestic purposes or the control of sewage disposal,”91 and “for the protection of health, safety, and welfare, including [public] trust resources, such as fish and wildlife.”92 Second, states enjoy “the power to determine the allocation and distribution of both surface and underground waters within the state. The states are permitted to adopt whatever system of water law they choose, including the law for those lands which have passed from the federal government to the states, provided it does not conflict with the federal government’s powers over navigation.”93 This allows for the entirety of state water resources law, which

governs the allocation and use of water not otherwise subject to federal jurisdiction.94 And third, states may exercise “powers to engage in interstate action with respect to water use and development .”95 Of greatest significance here are those instances of cooperative or flexible federalism resulting in interstate compacts, as we will see in Part III in relation to the Colorado River Compact of 1922.96

Solvency – Great Lakes Federal action in great lakes un even and bad no stable defintion of federal action Jetoo et al. 2015 (Savitri, Research Associate postdoctoral researcher, Faculty of Social Sciences, Business and Economics, FSE Common, Adam Thorn University of Toronto Department of Geography and Programs in the Environmnet PhD, Kathryn Friedman, Research Associate Professor of Law and Planning, University at Buffalo, Sara Gosman, associate professor at the University of Arkansas School of Law,  Gail Krantzberg, Professor of Engineering and Public Policy at McMaster University in Hamilton, Canada, “Governance and geopolitics as drivers of change in the Great Lakes–St. Lawrence basin”, 3 January 2015, Journal of Great Lakes Research, Volume 41, Supplement 1, https://doi.org/10.1016/j.jglr.2014.11.011 // JK ) A second problem confronting effective Great Lakes region governance is the changing relationship between federal and sub-national levels of government in Canada and the US. The initial Great Lakes Water Quality Agreement (GLWQA), signed in 1972 by Prime Minister Pierre Trudeau and President Richard Nixon, signaled that Great Lakes basin protection would be a significant and ongoing federal

priority. However, since that Agreement, a persistent trend of decentralization, which is the movement of power from the federal to sub-national governments, has occurred that threatens the potential success of a coordinated ecosystem governance of the Great Lakes basin (Botts and Muldoon, 2005). As the locus of policy development and implementation moved from the federal to sub-national levels in both countries, Great Lakes region governance is increasingly difficult. This vertical tension in Great Lakes region governance exacerbates the horizontal challenge of institutional fragmentation by making

coordination more difficult. While it is not always necessary or even desirable for federal governments to take leadership in all areas of Great Lakes region governance, sub-national

leadership must come with the capacity, fiscal and otherwise, to effectively make and implement decisions. The downloading of authority without the downloading of capacity ultimately undermines effective governance. A third problem is governance capacity, namely the capacity to implement the decisions made within a governance regime, which includes expertise, resources such as funding and personnel, and an informed and engaged public. Governments at all levels face significant challenges in deploying resources for environmental protection, which often leads to significant implementation gaps. This is especially true within the Great Lakes basin,

because many of the agreements and compacts are signed at the federal or sub-national level, but implementation is left to lower levels of government. The lack of a defined role for nongovernmental actors in Great Lakes region policy has often exacerbated this problem. The changing level of engagement is exemplified in the lack of public participation in the 1972 GLWQA and their later inclusion in planning committees in the 2012 Protocol. The fourth problem is the effect of geopolitics on Great Lakes region governance. This problem is distinct, because the other three are endogenous to the forms of governance within the Great Lakes basin. Geopolitics is best conceptualized as an exogenous influence on Great Lakes region governance. Although the geopolitical reality of North America is dominated by the US, the International Joint Commission (IJC) is based on norms of power sharing: binationalism that grants equal decision-making authority to each nation regardless of size or relative power and regardless of national interest. The IJC comprises six members, three of whom are appointed by the President of the US, with the advice and approval of

the Senate, and three of who are appointed by the Governor in Council of Canada on the advice of the Prime Minister. IJC commissioners must act impartially in reviewing problems and deciding issues, rather than representing the views of their respective governments. This suggests that, at least at the time the IJC was established, the equitable sharing of water as a common resource took precedence over pure power politics. Contemporary Great Lakes region geopolitics, however, is more complex. The North American geopolitical reality now accounts for more global concerns with more actors and interests in the mix. The implications are farreaching and pose challenges for the norms embodied in binational agreements as well as for other issues linked to water such as international trade. These four governance problems form the points of analysis for the following article about the history and future of the Great Lakes region governance. Although the governance of water quantity and quality are intrinsically related, they represent distinctly different governance challenges and are treated separately in the following analysis. The article proceeds in two sections. First, the article traces the evolution of water quantity and water quality governance since 1963, examining historical trends and institutions. Second, governance in the Great Lakes region is projected into 2063 through the consideration of status quo, dystopian and utopian scenarios. It should be noted that this is a limited survey of the vast set of institutions and processes of governance in the Great Lakes region and focuses exclusively on the institutions of water quality and quantity governance. These can be thought of as representative institutions that illustrate the serious challenges faced by the broader set of institutions in the basin.

State level action better for the Great LakesJetoo et al. 2015 (Savitri, Research Associate postdoctoral researcher, Faculty of Social Sciences, Business and Economics, FSE Common, Adam Thorn University of Toronto Department of Geography and Programs in the Environmnet PhD, Kathryn Friedman, Research Associate Professor of Law and Planning, University at Buffalo, Sara Gosman, associate professor at the University of Arkansas School of Law,  Gail Krantzberg, Professor of Engineering and Public Policy at McMaster University in Hamilton, Canada, “Governance and geopolitics as drivers of change in the Great Lakes–St. Lawrence basin”, 3 January 2015, Journal of Great Lakes Research, Volume 41, Supplement 1, https://doi.org/10.1016/j.jglr.2014.11.011 // JK ) The above brief history of Great Lakes governance demonstrates the central governance problems that impact the sustainability of this vital and shared resource: institutional fragmentation, the tension between the federal and sub-national levels of government, governance capacity, and the growing importance of geopolitics. Although predicting the future is at best difficult, the consequences of not attempting to envision the consequences of actions taken today are potentially dire. To meet this challenge, three potential scenarios are discussed: a status quo case scenario based on an extrapolation of existing conditions, a utopian scenario of adaptive governance that promotes sustainability, and a dystopian scenario of poor governance that contributes to potential ecological and socioeconomic disaster in the Great Lakes basin. Two points of clarification are necessary. First, these scenarios are not based on assumptions that factors

such as climate change inevitably lead to disaster. If a governance regime is stable and robust, climate change or other ecological stressors can be mitigated. Poor governance, on the other hand, does not require an event such as climate change to lead to catastrophe. The Aral Sea disaster was not the result of global climate change but instead the result of a fundamental failure of governance (Annin, 2006). Second, these scenarios are based on the assumption that future governance of the Great Lakes basin is path dependent. That is, future governance in the basin will be grounded within the bounds created by

previous decisions and events (Pierson, 2000). Thus, the problems that were crucial in the historical development of Great region governance will continue to be of central importance. In addition to the consideration of the four key themes of identified above, the relationship between governance and geopolitics as a driver of change and the other drivers of change in this special issue is

important. Tables 1 and 2 illustrate the potential impact of the other drivers of change on governance and geopolitics and the impact of governance and geopolitics on the other drivers. While the following discussion will not consider many of these relationships directly, it is important to recognize that the Great Lakes basin is an integrated system in which all of the drivers identified in the Great Lakes Futures Project are deeply intertwined. Future

scenarios Status quo: an extrapolation of existing conditions Institutional fragmentation The complexity of jurisdictions and institutions responsible for governance in the Great Lakes basin creates a fundamental problem of coordination. Successful cooperation between actors in the basin is the key to a robust and sustainable governance regime. Interspersed in the history of Great Lakes region water quality governance are promises of institutional integration evinced by examples such as the Great Lakes Regional Collaboration and successful RAPs such as Collingwood Harbor. This emergence of an integrative approach to Great Lakes governance has been fostered by innovations in ecosystem management driven by environmental policy professionals within the Great Lakes basin (Peterson et al., 1986; Stoker, 1991). These professionals also constitute the various

advisory boards of the IJC and are employed by subnational and regional agencies, nongovernmental organizations, and industry and are increasingly advocating for cooperative approaches to environmental management . In the status quo scenario, these professionals continue to advocate for more cooperative management, but participation continues to be sporadic contributing to the continued fragmentation that has characterized much of the governance history of the Great Lakes region. Management of water quantity in the Great Lakes region has relied on a governance regime created at the sub-national level with the

most recent regime created by the 2008 Great Lakes–St. Lawrence River Basin Water Resources Compact and Agreement. Calls for out-ofregion diversions have been universally unpopular in both Canada and the US (Annin, 2006; Bakenova, 2008; Flaherty et al., 2011; Heinmiller, 2003). Because no serious economically feasible largescale out-of-region diversions have been proposed, and no political pressure to support those diversions has materialized, it has been relatively easy for governments to coordinate over agreements preventing those diversions (Tarlock, 2008). In the status quo scenario, no serious demands for out-of-region demands for water are made and the 2008 Compact and Agreement are sufficient to beat back attempts to divert Great Lakes basin water out of the region. Conversely, regulating in-region but out-of-basin diversions, interbasin transfers, and in-basin consumption has proven far more complex. The 2008 Compact and Agreement create a framework that must be implemented by states and should be implemented by the provinces, providing a set of standards that must be applied to all new water uses and including commitments to use water efficiently (Hall, 2006).

However, in-basin consumption is still managed by individual states and provinces with weak regional oversight, and there are only reporting requirements and not limits for most existing uses. While the 2008 Compact and Agreement are a promising start, without changes to the status quo, governance of water quantity in the basin will not be sufficient. Proposed diversions to communities within Great Lakes States but outside of the basin such as the current one in Waukesha, Wisconsin may strain relations between states and provinces making cooperation more difficult. It remains to seen if the 2008 Compact and Agreement alone will be sufficient to meet these challenges. By 2063, the increasing institutional fragmentation of jurisdictions in the Great Lakes basin will lead to ever-diverging water quantity management regimes in each state and province which will inevitably lead to conflict between those jurisdictions.

For great lake action state and federal relations need to be good Jetoo et al. 2015 (Savitri, Research Associate postdoctoral researcher, Faculty of Social Sciences, Business and Economics, FSE Common, Adam Thorn University of Toronto Department of Geography and Programs in the Environmnet PhD, Kathryn Friedman, Research Associate Professor of Law and Planning, University at Buffalo, Sara Gosman, associate professor at the University of Arkansas School of Law,  Gail Krantzberg, Professor of Engineering and Public Policy at McMaster University in Hamilton, Canada, “Governance and geopolitics as drivers of change in the Great Lakes–St. Lawrence basin”, 3 January 2015, Journal of Great Lakes Research, Volume 41, Supplement 1, https://doi.org/10.1016/j.jglr.2014.11.011 // JK ) The historical analysis and future projections presented here demonstrate that governance and geopolitics will continue to be significant influences on Great Lakes basin sustainability. These problems of governance impact not only water quality and quantity, but also the successful implementation of policies regarding the other potential drivers of change in the Great

Lakes basin. Governance can therefore be imagined as a meta-driver that profoundly influences the degree to which the challenges posed by the other drivers of change will be successfully managed in the future. It remains to be seen whether this highly fragmented set of institutions, with tensions between national and sub-national levels of government, challenges to governance capacity, and geopolitical concerns can adapt to meet the inevitably more complex challenges of the future. New environmental problems, changing economic and demographic conditions, and the ever-growing possibility of genuine water scarcity in the future will strain existing governance regimes and make the sustainable governance of the Great Lakes basin more challenging then ever. No governance regime is perfect, but in order to avoid the dystopian scenarios detailed above, several key recommendations are clear. First, the increasing cooperation between jurisdictions evident in agreements such as the 2008 Compact and Agreement and the 2012 Protocol must be encouraged in order to overcome the institutional fragmentation that has characterized governance in the basin. Second, the relationship between the states and provinces and their respective federal governments need to be strengthened . Harmonization of policies across the basin

can only be achieved with the sustained interest of the Canadian and US federal governments. Third, the recent trend of reduced funding for Great Lakes basin protection must be reversed, and the engagement of all stakeholders in the basin must be institutionalized. Only through the reliable commitment of resources will further degradation of the basin ecosystem be avoided. Finally, there must be a recommitment to the binational character of the IJC in order to avoid destructive conflict and competition between Canada and the US. Small changes made today will inevitably have profound consequences in 2063.

2NC – AT: Delay States solve faster.Ormesher 17 [James Harrison Ormesher; May 2017; “Examining Federalism in American Water Policy: Taking Stock of a Modern Issue,” Honors Thesis, p. 54, http://thesis.honors.olemiss.edu/975/1/Harris%20Ormesher%20Thesis%20Final%20Draft.pdf] |Trip|At the state and local levels, water policy mostly concerns itself with issues of supply and the allocation of water resources . This is particularly effective , as compared to the fed eral level, states have higher visibility to the needs of their constituency, and therefore, an ability to adapt more quickly to solve crisis in their jurisdiction. Additionally, more direct ties to their constituencies create a higher level of accountability , and visibility for developing policy to efficiently manage the resource. The evidence for state and local government’s ability to quickly adapt to meet the needs of their constituents can be seen in various places.

2NC – AT: Modeling Deficit States are modeled internationally – California provesGalbraith 17 [Jean Galbraith; 6/10/2017; Professor of public international law and U.S. foreign relations law at the University of Pennsylvania; “Cooperative and Uncooperative Foreign Affairs Federalism,” Harvard Law Review, Vol. 130, No. 8, p. 2148-2149] |Trip|Mitigating climate change is a challenge for all levels of government — international, national, state, and local. As Glennon and Sloane note, some states and cities have embraced climate change mitigation measures (pp. 62–63). In doing so, states have often coordinated with each other and with foreign counterparts in both practical and expressivist ways (pp. 62–63). California’s efforts are exceptionally notable. State legislation requires sweeping emissions reductions;65 California and Quebec have sought to integrate their cap-and-trade programs ;66 and California has spearheaded a coalition of state and local governments around the world who have committed to climate policy.67 California even sent a large and high-profile delegation to the United Nations conference on climate change in Paris in 2015. 68

2NC – AT: Theory – Defense This is an important area of policy debateBaumgartner 5 [Matthew B Baumgartner, MA, JD University of Michigan. Law Clerk for the United States District Court for the Eastern District of Texas. SWANCC's Clear Statement: A Delimitation of Congress's Commerce Clause Authority to Regulate Water Pollution. Michigan Law Review , Aug., 2005, Vol. 103, No. 8, 2005. https://www.jstor.org/stable/pdf/30044491.pdf?refreqid=excelsior%3A21d3c13c307a8554d50077eadc29bad0]There is a relevant and meaningful policy argument about whether wetland protection policy is best made and implemented by the states or federal agencies . See Adler, supra note 8, at 40-54 (arguing for a policy of "wetland federalism" because of the superior effectiveness of state regulation of wetlands). It is important, however, to maintain the distinction between what is within federal constitutional reach , and whether federal control is preferable to state control as a matter of policy .

2NC – AT: Perm do Both – General Establishing clear lines of division of federal and state authority is key – overlap causes blame shifting and encourages legislative irresponsibility Stuntz 11 [William J. Stuntz was a criminal justice scholar and a professor at Harvard Law School. Stuntz was born in Washington, D.C. and grew up Annapolis, Maryland. He received his Bachelor's at The College of William & Mary and his degree in law at University of Virginia School of Law. The Collapse of American Criminal Justice. Harvard University Press, 2011. Download chapters here: https://www.jstor.org/stable/j.ctt2jbtht]The doctrines that purport to protect state and local officials’ prerogatives —chiefly, the law of federal criminal jurisdiction, enforced

through jurisdictional elements that attach to individual crimes—make the situation worse . Federalism-based doctrines in criminal law cut across crimes, not

between them: instead of, say, assigning bribery to federal officials and arson to the locals, federal law covers some bribery and some arson,

leaving local police and prosecutors the rest—with a fuzzy and constantly changing line between the two . A large fraction of federal criminal litigation is devoted to issues like whether robbery victims or torched buildings were sufficiently “commercial” to support federal charges.61 This generates lines of cases devoted to such questions as whether arsons of churches that order Sunday School materials from out of state are within the scope of federal authority.62 That kind of judicially mandated federalism obscures accountability and wastes the time of litigants and courts alike.

The pattern recurs throughout the federal criminal code. Voters cannot know whom to credit when the system functions well and whom to blame when it doesn’t . That encourages irresponsible legislation . Better to draw some plausible lines between

crimes that should be exclusively federal and crimes that should be exclusively enforced by state and local officials. Courts are poorly positioned to draw those lines, and Congress has no incentive to do so itself. Some mechanism is needed to encourage Congress to make federal law where federal law will count and not elsewhere.

2NC – AT: Perm do Both – Coop FIsm Cooperative federalism failsBarton 2017 [Brooke Barton, researcher for the Harvard Business School's Social Enterprise Initiative, Why Pruitt’s ‘Cooperative Federalism’ Spells Trouble for Clean Water Protection, Ceres, March 8, 2017. https://www.ceres.org/news-center/blog/why-pruitts-cooperative-federalism-spells-trouble-clean-water-protection]Cooperative federalism, at its most benign, is about allowing each state to tailor its own approach to enforcing environmental rules. At its worst , it's about the federal government turning a blind eye to states that shirk the nation's environmental laws or that simply don't have the coffers to pay for monitoring and enforcement."Process, rule of law and cooperative federalism, that is going to be the heart of how we do business at the EPA," said EPA Administrator   Scott Pruitt , who has promised to follow the   Trump administration's will to slash EPA's budget and soften its rules. To see how

cooperative federalism erodes environmental protection , look no further than the 2015 Waters of the United States rule. President Trump   issued an executive order  last week announcing plans to undo the rule, which clarifies the federal government's authority to limit pollution in bodies of water not explicitly covered by the Clean Water Act.Those smaller bodies

of water—typically streams, wetlands and rivers, which account for more than half of the nation's freshwater resources—feed into larger water bodies that provide key   drinking water   and recreational opportunities for the public , as well as water supplies for

business. Keeping them clean is vital for the nation's health and economic prosperity. The executive order, coupled with

the administration's penchant for cooperative federalism, sends a strong message that if states choose not to protect smaller streams and wetlands, they won't get pushback from the federal government . And as state environmental budgets shrink , many simply don't have the resources to ensure healthy streams and clean drinking water on their own, even if they wanted to.

Forty state environmental agencies have reduced staff in recent years, with the biggest cuts being in North Carolina, Florida, Michigan, New York, Illinois and Arizona, according to a fall 2016 report by the Center for Public Integrity.

AT: Strike Down No strike down – the political costs are too highNoah D. Hall (Contact Author), 3-13-2006, Professor @ Wayne State Law School. Noah Hall's expertise is in environmental and water law, and his research focuses on issues of environmental governance, federalism, and transboundary pollution and resource management. "Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region by Noah D. Hall :: SSRN," No Publication, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=888603, accessed 7-12-2021 (Kent Denver -- EA)The cooperative horizontal federalism model is particularly valuable for addressing environmental problems when federal action is undesirable . In some cases, environmental protection advocates may not want a strong federal role. This is certainly the case in the Great Lakes, where concerns over diversions to other parts of the country fuel a preference for keeping management of the Great Lakes away from the federal government. While the federal government could always exercise its constitutional powers over management and allocation of interstate waters, the proposed compact creates at least a significant political hurdle to a federal water grab . Congress can repeal a compact just as it can any statute, but the political ramifications of repealing a compact that has already been ratified by numerous state legislatures may prove to be a significant deterrent. As discussed in Part II.G, the current federal authority for managing Great Lakes water diversions (1986 WRDA) has shaky future political prospects. From the perspective of the Great Lakes states, the risk of putting Congress in the lead role for managing a resource that could be coveted by other regions is obvious. While cooperative horizontal federalism does not preempt or prevent congressional action, it makes it politically less likely. Congress would need to overturn the express and collective legislative will of an entire region, something that has never occurred in the history of interstate water management compacts.

No Preemption — state efforts and federal motivation.Hall 06 — Noah Hall, Professor of Environmental and Water Law at Wayne State University, former Professor at the University of Michigan School of Law, J.D. from the University of Michigan Law School, 2006 (“Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region,” University of Colorado Law Review, Volume 77, Available Online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=888603, Accessed on 07-11-2021, Jackson Hightower)Beyond the legal benefits, a cooperative horizontal federalism approach also eliminates many of the political obstacles to environmental protection. By allowing the states to take the initiative and craft their own solutions, states have a more genuine ownership stake in the resulting policy . Instead of having legal burdens forced upon them, they may embrace the goals of the program and better support its implementation. Having invested in the development and creation of a regional policy, the states are more likely to adequately fund the resulting programs and provide the resources needed for effective administration, since they are politically invested in the program’s success. Programmatic review and enforcement may also be stronger under cooperative horizontal federalism approach. Federal agencies are often reluctant to challenge state programs for a variety of political reasons, including the cost of assuming the program if the state is out of compliance and the reality that congressional representatives are advocates for their states. These problems are minimized in the cooperative horizontal federalism model. A neighboring state will have fewer political disincentives for enforcing programmatic compliance on a delinquent state. It is possible that neighboring states will even be pressured by business interests within their borders to ensure that the competition is playing by the same rules.

2NC – Avoids Politics CP isn’t controversialAblavsky 19 (Gregory Ablavsky is associate professor of law and of history at Stanford University, May 2019, "Empire States: The Coming of Dual Federalism", Yale Law Journal, https://www.yalelawjournal.org/pdf/Ablavsky_oytqdr67.pdf, accessed: 7-14-2021)//jake“[C]onsolidation”—the prospect that the new federal government would destroy the “states as independent, autonomous jurisdictions”—was, historian Jack Rakove has argued, “the chief evil that Anti-Federalists ascribed to the

Constitution.”279 Unsurprisingly, then, discussions of federalism dominated the extensive debates over ratification that followed the Constitutional Convention. As the Constitution’s critics vociferously defended state independence and sovereignty, ratification’s Federalist proponents sought to downplay the Constitution’s threat to state autonomy,

speaking far more circumspectly about state authority than the delegates to the Convention had. These dynamics pushed the ratification debates onto seemingly shared argumentative terrain: if only out of expediency, Federalists outwardly agreed with Antifederalists on the need for federal power to preserve state sovereignty against potential competitors. But they disagreed over whether the Constitution actually achieved this supposedly shared goal. This framing had divergent consequences for the Guarantee and New State Clauses during ratification. The Guarantee Clause proved a key point of contention: Federalists routinely invoked it as proof against charges of consolidation, only for Antifederalists to respond that the Clause’s text did not support the Federalists’ broad claims. By contrast, unlike the heated discussions it elicited

during the Convention, the New State Clause, with its unambiguous textual support for states, proved largely uncontroversial .

Uncooperative Federalism CP

1NC – Leverage CP Leverage CP

The 50 States and relevant sub-federal actors ought to leverage state participation in implementation and enforcement of environmental statues on the federal government [mandate of plan].

Leverage solves – States can force federal action – their ‘indispensability’ in environmental statues is a ‘trump card’.Pozen 9 [Jessica Bulman-Pozen; 2009; Betts Professor of Law and a director of the Center for Constitutional Governance at Columbia Law School; Heather K. Gerken; “Uncooperative Federalism,” Yale Law Journal, Vol. 118, No. 7, p. 1276-1277] |Trip|We can also find examples of interstitial dissent taking place within the gaps of federal environmental law. Environmental regulation has long been cooperative federalism's stomping ground. Since the 1970s, states have implemented and enforced most of the United States's major environmental statutes . 6 " This arrangement-born in part of principle and in part of necessity-lends the states considerable leverage , which they have sometimes used to challenge and reshape federal policy .The Clean Air Act provides an apt illustration. Under the Act, the Environmental Protection Agency (EPA) sets national air quality standards for common pollutants, but states are given discretion to implement these standards as long as their plans meet national standards; if they fall short, the EPA retains the authority to implement air quality standards itself.6 ' Because the federal government lacks the capacity to stage a takeover , however, the EPA has not done so even when states have departed from federal policy.62 States thus enjoy a "trump card" in dealing with the federal government: they are "indispensab[le]" to the regulatory scheme . 6 3States have not hesitated to play this trump card. In some areas, states have forced the EPA to back off of a strong regulatory position . 6 4 [Insert Footnote 64] For example, states resisted the Clean Air Act's requirement that they create inspection and maintenance programs to monitor emissions. Several states initially refused to submit inspection and maintenance plans, while others promulgated ineffective programs, and still others later refused to amend their programs to comply with federal standards . See McGarity, supra note 2, at 1556-61. Although the states plainly were exercising their regulatory discretion in a manner that thwarted the federal requirement, the EPA never assumed responsibility for implementation and , in the end, caved to the states' demands. It permitted California to run a test-and-repair program despite its initial insistence that centralized test-only centers were the sole option. When other states clamored for the same treatment, the EPA allowed any state to use this hybrid approach. Id. at 1623-24; see also id. at 1579 (describing state confrontations with the EPA as a "rout" and noting that the " EPA backed down from virtually every confrontation with state officials"). [Footnote 64 ends] In others, states have pushed the EPA to take a stronger regulatory stance. Take California. Under the Act, California has "super-regulator" status;65 because California had already begun to regulate air pollution when the statute was enacted, Congress instructed the EPA to grant the state a waiver from the Clean Air Act's preemption provision (which bars states from adopting their own standards for vehicle emissions) when California sought to address "compelling and extraordinary conditions.", 6 While this statutory exception was intended to allow California to respond to "unique problems" it faced due to its climate and topography, 67 from the very beginning California has used this power to drive federal policy. Other states have adopted California's emissions standards in lieu of federal standards, 68 and the EPA itself has generally followed California's lead and adopted the stricter state standards after a few years.6 9 In recent years, California has challenged federal policy even more aggressively , as it has attempted to regulate greenhouse gas emissions that contribute to global warming. The state's goal is clear: to implement a regulatory regime that will prod national change . 70 Because this approach marks a clear repudiation of federal policy in a hotly contested area, it has provoked a strong response from the federal government.71

Counterplan facilitates Uncooperative federalism – no circumvention. Oakes 17 [Anne Richardson Oakes; 2017; Associate Professor and Director of the Centre for American Legal Studies at Birmingham City University Law School; Ilaria Di Gioia; Submitted through a double-blind peer review; “Uncooperative Federalism or Dinosaur Constitutionalism: The Affordable Care Act and The Language of States Rights,” Journal of Constitutional Investigations, Vol. 14, No. 3, p. 14-17] |Trip|The second point concerns the ‘anti-commandeering’ doctrine announced by the Supreme Court in Printz v. United States to the effect that Congress cannot compel the States to enact or enforce a federal regulatory program. 61 It is clear, as we saw earlier, that nullification bills properly so-called are unlikely to be successful in state legislatures.TAC now calls its bills “anti-commandeering” and equates this with “nullification” on the grounds that in practical terms what is important is the actual effect.62 Since as they claim, most federal acts or programs require a federal/state partnership to actually carry them out, bills that ban state participation can make those acts or programs “nearly impossible” to enforce; in effect, if not in law, the result is nullification . 63 Nullification in this sense becomes a practice not an ideology so that, as both Dinan and TAC claim, the link with Massive Resistance and the legacy of Calhoun is misplaced.

The third point follows. Printz itself involved a challenge to provisions in the federal Brady Handgun Violence Prevention Act requiring local chief law enforcement officers to check the backgrounds of prospective purchasers of handguns pending the establishment of a national system. Holding this provision to be unconstitutional, Justice Scalia, for the majority, wrote: Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. 64Here, we argue, lies the rub. Justice Scalia claims that a system of “dual sovereignty” in U.S. constitutional arrangements is “incontestable”65 but as Professors Read and Allen suggest, the absence of the words “sovereign” and “sovereignty” from the Constitution supports a strong inference that “those who framed, ratified and amended the document did not agree among themselves about what sovereignty was and where in the Constitution it was found.” 66 Justice Scalia looked to “historical understanding and practice in the structure of the Constitution, and in the jurisprudence of this Court” for the answer. 67 In terms of the first, as this paper details and President Obama understood, the language of state sovereignty is tainted by the practice of the past and this may likely be irredeemable.68 A study of the last is beyond the present scope of this paper. That leaves the structure of the Constitution and Professor Dinan’s claim that states are working within the vertical separation of powers to exploit the constitutional options open to them for combatting federal government overreach .In a recent article in Prospect, Adam Tomkins has argued that federalism U.S. style is “dying”,69 distorted by a twenty-first century power imbalance in favour of the federal government that now leaves little for the states to do: The reach of American government into not only the economy but social policy continued to grow, not shrink. From abortion to gay marriage, from Obamacare to the American government’s controversial “no child left behind” and “every student succeeds” education policies, there is less and less for the states to do. Arizona cannot control its long border with Mexico even when the immigration controls it enacts are held to be consistent with federal law: it is pre-empted from doing so by the fact that Congress has “occupied the field.”70From this perspective it is not just the language of state sovereignty but the concept itself that is outdated to the point of irrelevance. When, as he suggest, “some influential American policy-makers think now that states are little more than a relic from the past, and that it is clusters of cities and city-regions that are the economic powerhouses” the “live questions in American politics” now are: “can the states survive? And can they survive with anything meaningful to do?”71This is itself an ideological view. The “liberal Yale law professors” that Tomkins refers to, share with the avowedly ideological TAC, the understanding that as Professor Heather Gerken explains: [t ]he federal government doesn’t have enough resources to deal with immigration, enforce its own drug laws, carry out its environmental policies, build its own infrastructure, or administer its health care system. Instead, it relies on the states to do much of this work. We call such arrangement s between the states and federal government “cooperative federalism.” But we forget that they create many opportunities for what Jessica Bulman-Pozen and I have called “uncooperative federalism”.72From this point of view the resources and enforcement mechanisms of state regulatory apparatus are far from irrelevant but as Professor Gerken’s colleague points out, in a context of polarized political partisanship, federalism and states’ rights of themselves have no valence. Whether state legislative opposition to the PPACA has a legitimate place as an appropriate tactic of contemporary federalism is a profoundly ideological question: “without an appreciation of partisanship’s influence, dynamics considered fundamental to our federal system are obscure.” 73 The PPACA was the signature achievement of a Democratic president and state opposition was partisan from day one; no Republican supported its passage and no Democratic state officials joined the multi-state legal challenge. As we stand at the beginning of a Trump presidency and progressives fear the worst for the future not only of the PPACA but even more profoundly for what might be termed an equality agenda, can we expect the language of states’ rights with its associated tactics of nullification and interposition to be deployed for a liberal agenda?Nullification theory, write Professors Read and Allen gains traction not from it being good constitutional theory but from the mere fact that it is a constitutional theory- one addressed to nonjudicial actors in language they understand, within a political community founded on the premise that the Constitution ultimately expresses the will of the people. Those who use constitutional arguments, even weak ones, have an advantage over those who neglect constitutional arguments altogether. Contemporary nullification theory thrives in this vacuum.74As Professors Bulman-Pozen and Gerken point out, traditional states’ rights arguments fit a model of federalism in which autonomous states rival the federal government from a position of outsider.75 The alternative model of “co-operative federalism” allocates to the states only a subservient role as “supportive insiders--servants and allies to the federal government” with, as Bulman-Pozen and Gerken put it, no “fully developed account of the ways in which states playing the role of federal servant can also resist federal mandates, the ways in which integration--and not just autonomy--can empower states to challenge federal authority”76 If the negative connotations of state challenges to federal authority are to be discarded, what is needed is new constitutional theorising with a new conceptual framework and vocabulary that can not only accommodate but accord value to challenge, dissent and even resistance at state-level. Bulman-Pozen and Gerken’s “uncooperative federalism” which celebrates state strength at the heart of the federal regulatory state offers just such a model , not least because of their “counter-intuitive” conclusions concerning current Supreme Court federalism doctrine: In our view, a strong commitment to uncooperative federalism would lead you to conclude that the Supreme Court has two central doctrines of federalism backwards. Rather than proscribe commandeering and expansively construe preemption as it does now, a Court attentive to uncooperative federalism should allow commandeering and cabin preemption. By fostering integration and overlap in regulatory spheres, this doctrinal 180 would facilitate state dissent while pushing federal engagement with state challenges.77

That solves Climate ChangeShryock 21 [Allison E. Shryock; 5/1/2021; Coordinator for the Ohio University Office of Sustainability; “American Federalisms and Climate Policy,” p. 32-39, https://etd.ohiolink.edu/apexprod/rws_etd/send_file/send?accession=ouhonors1618143242538514&disposition=inline] |Trip|Benefits of Environmental FederalismThe above cases show the benefits and problems with environmental federalism, some of the benefits are reviewed in this section. There are numerous benefits of overlapping jurisdictions, such as the built-in checks upon interest group capture , greater opportunities for regulatory innovation and refinement, and relief for the courts from the often futile and confusing task of jurisdictional line-drawing (Engel 2007). During presidential administrations that fail to improve environmental regulations , cooperative federalism allows the states to act on environmental reforms . It is argued that this jurisdictional overlap can minimize potential downsides.Two of the most significant state initiatives, California’s greenhouse gas mobile source emissions standards and the Regional Greenhouse Gas Initiative, would not have occurred without the backdrop of federal law (Carlson 2008). Models such as these allow the state to be the main regulator , followed by the federal government. This results in a greater amount of innovation . This allows for benefits of devolution, such as

policy experimentation, respect for local preferences, and the avoidance of potentially expensive and untested federal mandates (Carlson 2008). The most innovative state responses to climate change are neither just the product of state regulation nor exclusively federal. Instead, they are the result of repeated, sustained and dynamic lawmaking efforts that involve both levels of government (Carlson 2008).Decision-making by state governments can best reflect geographical variations in preferences for environmental quality and the costs of providing these programs. States are argued to be more innovative than the federal government . Decentralization also promotes experimentation with different governmental policies and enhances individuals’ capacity to satisfy their different tastes in environmental conditions (Rechtschaffen and Markell 2002). Overtime, the enhancement of state financial resources through the EPA and federal grants has improved their ability to be a main source of governmental innovations (Rechtschaffen and Markell 2002). Examples of state innovations include Massachusetts’ Toxic Use Reduction Act and California's Proposition 65 (Rechtschaffen and Markell 2002). States are closest to the regulated entities and can therefore obtain the best information about the environmental problems. It also separates governmental power into local unites which are more conducive to active participation in the processes of public choice (Rechtschaffen and Markell 2002).Problems with Environmental FederalismDespite the benefits of environmental federalism, it is important to understand the potential problems with it. The debate over the proper allocation of environmental regulatory authority is largely traceable to an influential 1977 article by Professor Richard Stewart. This paper advanced the argument that federal regulation was economically superior to state regulation with respect to certain environmental issues. Among other justifications for federal, as opposed to state environmental regulation, Stewart argued that federal regulation would prevent a welfare-reducing race-to-the- bottom in state environmental programs as states compete to attract or maintain mobile industry, save environmental groups the expense of lobbying fifty separate legislatures, exploit environmentalists’ allegedly greater influence at the national level, and prevent interstate pollution spillovers (Engel 2007).One of the most cited arguments against cooperative environmental federalism is the race-to-the-bottom theory . This states that federal regulation is needed to prevent states from competing for industrial development by reducing their environmental standards to sub-optimal levels (Rechtschaffen and Markell 2002). Without federal regulations, it is argued that states will create low environmental standards to generate benefits such as new industries. It is argued that the solution to this is federal legislation, which enforces a minimum regulation across the nation. However, it has recently been challenged that this theory is not accurate . Instead, scholars suggest that allowing states to compete in setting state environmental standards will not result in a race-to-the-bottom. States will choose the level of pollution that reflects the preferences of their citizens and their competing desires for economic activity and environmental quality (Rechtschaffen and Markell 2002). Therefore, interstate competition will result in a race-to-the-top where states will adopt innovative environmental policies (Rechtschaffen and Markell 2002).Another argument against devolution of power to the states is the fear of spillover effects. This occurs when pollution released in one state migrates through air or water into another state (Rechtschaffen and Markell 2002). This transboundary pollution spillover is considered a negative externality. The regulator often does not consider these negative externalities and will therefore underregulate which can negatively impact the environment. An example of an externality is when a company is permitted by the government to pollute a certain amount, but the local community is faced with the consequences of the pollution. The externality is the impact of an action that isn’t traditionally considered in the cost structure of that action.A final argument against cooperative federalism is that the centralization of environmental laws is needed because all U.S. citizens have the right to a clean environment, and this right transcends state boundaries (Rechtschaffen and Markell 2002). It is argued that many Americans consider environmental quality as an important national good that transcends state interests. A focus on this right to a safe environmental supports a shift in responsibility to the central government to determine what is considered safe. The right to a clean environment is exemplified by Juliana v. The United States, which is analyzed in the important cases section. In general, the case claims that through the government’s affirmative actions that cause climate change, it has violated the youngest generation’s constitutional rights to life, liberty, and property and failed to protect public trust resources. The Public Trust Doctrine recognizes the public right to many natural resources. It requires the sovereign, or state, to hold in trust designated resources for the benefit of the people. In general, the benefits of environmental federalism outweigh the concerns since the main theory of race-to-the-bottom has been found to be untrue.Scales of Government and Climate Change PolicyNext, it is important to understand that there are many constitutional doctrines that have the potential to impact the allocation of power between federal and state governments. The Constitution doesn’t set appropriate boundaries for the division of powers between federal and state governments. Many of the judicial developments in the past decade have enhanced the authority of the states and reduced the power of the federal government. The Commerce Clause, the Tenth Amendment and the Supremacy Clause are the three most critical aspects of the Constitution related to environmental federalism.The Constitution gives Congress the power to regulate Commerce among the states (Rechtschaffen and Markell 2002). This is considered the ‘active’ part of the Commerce Clause. A three-part test for determining the scope of the Commerce Clause was set by the United States v. Lopez case. It set the precedent that Congress can regulate the use of channels of interstate commerce, Congress can regulate and protect the instrumentalities of interstate commerce, and Congress’ commerce authority includes the power to regulate activities that have a substantial relation to interstate commerce (Rechtschaffen and Markell 2002). There must be a rational explanation for deciding that a regulated activity sufficiently affects interstate commerce.The ‘dormant’ part of the Commerce Clause limits the states’ authority to regulate activity that may affect interstate commerce by vesting in Congress the power to regulate commerce among the several states (Rechtschaffen and Markell 2002). This can be exemplified by City of Philadelphia v. New Jersey. This was about a law that addressed New Jersey’s diminishing landfill space by limiting the importation of municipal solid waste from outside of the state (Rechtschaffen and Markell 2002). Many out of state cities challenged this law on the grounds that it unconstitutionally interfered with interstate commerce (Rechtschaffen and Markell 2002). The Court invalidated New Jersey’s law because garbage qualified as commerce, and thus the law interfered with interstate commerce.The Tenth Amendment states that the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people (Rechtschaffen and Markell 2002). This is exemplified in New York v. the United States which is described in the important cases section. This constraint on federal power to coerce state action is limited by cooperative federalism. In this case, the court reaffirmed that the federal government has tools available to enlist states in implementation of laws (Rechtschaffen and Markell 2002). The court decided that the federal government can provide states with incentives for influencing a state's policy choices because of cooperative federalism. Most federal environmental laws allow states to receive authorization to create the state equivalent of a federal program in place of the federal program, but don’t require states to do so (Rechtschaffen and Markell 2002). Because of this, states can choose to not assume responsibility for implementing federal environmental programs, which leaves them to the federal government to regulate. This avoids creating a commandeering issue under the Tenth Amendment (Rechtschaffen and Markell 2002).According to the Constitution, the federal law will preempt state law and modify the boundaries of state and local regulatory power vis-a-vis national power (Rechtschaffen and Markell 2002). This is known as the Supremacy Clause. Congress has the power to expressly exclude all state regulation on a subject (Rechtschaffen and Markell 2002). It may also be implied by the structure of a statute. Lastly, the Court has held that state law is preempted if it conflicts with the federal law, either in an absolute way or because the state law functions as an obstacle to the accomplishment of the objectives of Congress (Rechtschaffen and Markell 2002). If it stands it is in the way in an absolute way, it means that a state can’t comply with both the state and federal law (Rechtschaffen and Markell 2002). Overall, the cooperative federalism structure that Congress established makes the EPA responsible for program delivery while reserving the implementation role for willing and capable states (Rechtschaffen and Markell 2002).

The current scholarly debate over environmental federalism tries to determine the best allocation of regulatory authority between the states and the federal government with respect to specific environmental problems. Polycentric systems can encourage climate action at local and state levels which can then influence national policies. These systems are ones in which local, state and national government units are operating at the same time and jointly affect benefits and costs (Ostrom 2012). An example of how states can make an impactful difference can be seen in California. It passed the Global Warming Solutions Act aimed at reducing emissions by twenty five percent by 2020 and is a local version of the carbon market developed in the Kyoto Protocol (Ostrom 2012). Colorado later passed similar legislation based on California’s work . This shows the ability of a state to influence other state policies which can then influence national policy makers to follow suit. Regional efforts are also taking place. For example, the Regional Greenhouse Gas Initiative was signed by ten states to cap carbon dioxide from the energy sector (Ostrom 2012). Global and national solutions may not be the only answer to coping with the problems of climate change. Creative and effective policies have been implemented at all scales. A commitment to climate policy can be more effectively undertaken in medium-scale governance units that are linked together through information networks and monitoring at all levels (Ostrom 2012).

Climate Change causes Extinction Hood 21 [Marlowe Hood; 4/29/2021; Environment and Science Reporter at Agence France-Presse; “Humanity taking 'colossal risk' with our future: Nobels,” Phys.org, https://phys.org/news/2021-04-humanity-colossal-future-nobels.html] |Trip|The failure to halt climate change, the destruction of nature and other intertwined global crises poses an existential risk to humanity , ten Nobel laureates said Thursday following the first-ever Nobel Prize Summit.Only profound changes in the way society produces, distributes and consumes almost everything—starting with energy—can forestall potentially catastrophic changes, they said in a joint statement, also signed by 20 other top thinkers."We need to reinvent our relationship with planet Earth," the statement said. "Without transformational action this decade, humanity is taking colossal risks with our common future."The risks of pandemics , they noted, are now greater due to destruction of natural habitats, highly networked societies, and the spread of fake news on social networks.The Nobel winners said societies must repair and restore the "global commons" that have allowed our species to flourish—the climate, ice, land, ocean, freshwater, forests, soils, and rich diversity of life that regulate the state of the planet."There is now an existential need to build economies and societies that support Earth system harmony rather than disrupt it," they warned."The next decade is crucial : global greenhouse gas emissions need to be cut by half and destruction of nature halted and reversed."The amount of CO2 humanity can emit and still cap global warming at 1.5 degrees Celsius —our "carbon budget" —will be exhausted before 2030 , scientists have calculated.Earth's average global temperature has already gone up 1.2C compared to preindustrial levels.At the same time, energy needs are increasing: every week until 2050 Earth's urban population will increase by about 1.3 million.The Nobel signatories included economists Joseph Stiglitz of Columbia University and Oliver Hart from Harvard, biophysicists William Moerner from Stanford and Jacques Dubochet of Lausanne University, and astrophysicist Brian Schmidt of the Australian National University.'Last generation that can act'There is no Nobel Prize for environmental or Earth science."What we are doing amounts to an uncontrolled experiment on Earth's life-support system ," said Earth system scientist Johan Rockstrom, director of the Potsdam Institute for Climate Impact Research and a signatory of the statement."We are the last generation with a reasonable chance of retaining long-term stability of critical parts of the Earth system." The planet has sent up one red flag after another of a climate system teetering on the edge of dangerous tipping points , the statement said. Parts of the Antarctic ice sheet may have already crossed irreversible melting thresholds, and the circulation of North Atlantic currents that ensure temperate winters in Europe has slowed.Rainforests, permafrost and coral reefs are similarly approaching tipping points . Widening inequality and distortions in the distribution of information have also reached the level of global crises, the Nobels cautioned."These supranational crises are interlinked and threaten the enormous gains we have made in human progress," they wrote.Humanity is only now "waking up late" to these challenges but still has time to act , the statement said, outlining seven critical areas.Biologists Linda Buck at the Fred Hutchinson Cancer Research Center, and Elizabeth H. Blackburn from the University of California at San Francisco, along with virologist Charles Rice from The Rockefeller University, also signed.

1NC – Suits CP Suits CP

The 50 States and relevant sub-federal actors ought to sue the federal government for not [mandates of plan].

Lawsuits create pressure – makes the fed fold and sets a precedent Lin 18 [Elbert Lin; 2/26/2018; Solicitor General of West Virginia from 2013 to 2017; “States Suing the Federal Government: Protecting Liberty or Playing Politics?,” Richmond Law Review, Vol. 52, p. 633-635] |Trip|It has become increasingly common in recent years to scan the news and find that a state or group of states has sued the federal government . During the eight years of the Obama Administration, states led mostly by Republican attorneys general challenged federal action on matters ranging from health care to immigration to the environment to overtime pay. And during just the first year of the Trump Administration, states led by Democratic attorneys general have brought suits in many of those same areas and others, including federal student loan relief and regulation of the internet.Many of these state-led lawsuits have put the brakes on federal executive actions. Though some of the cases have challenged alleged congressional overreach in federal statutes —most notably the Affordable Care Act (“ACA”)1—the overwhelming majority have challenged actions by federal agencies or the President himself. And many have been successful. In February 2016, West Virginia’s multistate action against the signature climate-change rule of the Obama Administration Environmental Protection Agency (“EPA”) resulted in a United States Supreme Court stay of the rule that, for all practical purposes, made possible the Trump Administration EPA’s current efforts to repeal that rule.2 Two years later, Washington State’s lawsuit challenging President Trump’s Executive Order 13769 (sometimes called the “Travel Ban”) succeeded in blocking the enforcement of significant parts of the Order3 and caused the Trump Administration to issue a revised Executive Order.4This article explores this trend and suggests that, while states need to push back on federal overreach, there are important questions about how and why states do so. Part I discusses some of the many state-led suits filed against the federal executive branch under both Presidents Obama and Trump.5 Part II discusses some of the reasons for and criticisms of state-led lawsuits against the federal government. Ultimately, this article concludes that, while state-led litigation against the federal government is important to American democracy, we should be cautious about accepting every state-filed lawsuit as a faithful effort to vindicate federalism.I. STATES VERSUS THE PRESIDENTA. Suing President ObamaDuring the eight years of the Obama Administration, states led mostly by Republican attorneys general made it a priority, early and often, to challenge President Obama’s initiatives. The current Governor of Texas, Greg Abbott, served as the Texas Attorney General during the first six years of the Obama Administration. He once claimed to have sued the Obama Administration twenty-five times, describing his job this way: “I go into the office, I sue the federal government and I go home.”6 “State attorneys general have proven to be the last line of defense,” Abbott said, “against a federal government that is growing too large, spending too much, and reaching too deeply into our lives.”7 When E. Scott Pruitt, President Trump’s EPA Administrator, served as the Oklahoma Attorney General from 2011 until 2017, he created an “office of federalism” to fight federal overreach.8 Similarly, West Virginia Attorney General Patrick Morrisey ran for office in 2012 on a promise to create an “Office of Federalism and Freedom” to “refocus some of the Office’s priorities on challenging federal policies.”9 Fred Barnes of The Weekly Standard wrote several articles about Republican state attorneys general during the Obama years, describing them as “the resistance,”10 “the last redoubt,”11 “a scourge of President Obama,”12 and “the conservative legal army.”13The lawsuits brought by these state attorneys general did not always succeed, but they did stop some of President Obama’s biggest initiatives.14 And in doing so, they often had not only an immediate impact on the fed eral executive branch, but also set important precedents for future challenges by states or other parties seeking to rein in the President and his or her agencies.

Tension in Lawsuits is key to Democracy – checks abuse and protects freedomLin 18 [Elbert Lin; 2/26/2018; Solicitor General of West Virginia from 2013 to 2017; “States Suing the Federal Government: Protecting Liberty or Playing Politics?,” Richmond Law Review, Vol. 52, p. 646-649] |Trip|Whether one agrees with the states or not, there is a strong argument that American democracy benefits from lawsuits brought by states against the federal government . Schoolchildren throughout the United States are taught the importance of separation of powers, and how the three branches of the federal government check and balance each other. Perhaps less often discussed is the vertical separation of powers between the federal government and the states.The United States Constitution establishes a system where the people give power to two independent governments.91 Each of us is subject to both the federal government and a state government.92 Indeed, the framers specifically considered a system in which “Congress . . . employ[ed] state governments as regulatory agencies.”93 And they “rejected [that] concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people.”94 Thus, “our Constitution establishes a system of dual sovereignty between the States and the Federal Government.”95In some areas, federal law is supreme.96 If the federal government acts properly within its limited and defined powers, the Supremacy Clause prevents the states from interfering.97 That is the deal states agreed to when they joined the Union.But the federal government must stay in its own lane. Powers not specifically granted to the central government were retained by the states—a concept reaffirmed in the Tenth Amendment.98 Moreover, the federal government has to do its own work; it cannot force the states, or state legislatures or officers, to do its bidding.99 That is the anti-commandeering principle described in cases like New York v. United States and Printz v. United States.100 The framers designed “a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.”101In this “ tension between federal and state power,” the Supreme Court has said, “ lies the promise of liberty .” 102 “The ‘ constitutionally-mandated balance of power’ between the States and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties. ’”103 James Madison described it as “a double security” for “the rights of the people.”104 The “great innovation” was that “our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”105 Just as the horizontal separation of powers among the three branches of the federal government “serve[s] to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal

Government will reduce the risk of tyranny and abuse from either front .” 106 The “allocation of powers between the National Government and the States [thus] enhances freedom . . . .”107As such, there is a strong argument that when the federal government gets out of its lane, whether it is the legislative branch or the executive branch, it is the constitutional duty of the states to push back. To fulfill the framers’ vision of a “double security” for individual liberty, the federal government must believe that the states will fight federal overreach, and the states must sometimes actually do so.108 As the Supreme Court has said, “These twin powers will act as mutual restraints only if both are credible.”109 The discharge of that responsibility does not always require states to sue the federal government, and it does not always require them to win if they do sue. And it may not be the state attorney general who should be speaking for the state; that is a question of state law for each state and its citizens to determine on their own. What is important is that the states do their part in maintaining the necessary tension between themselves and the federal government. This is not to say that individuals cannot seek to vindicate the vertical separation of powers. As the Supreme Court explained recently in Bond v. United States, “[f]idelity to principles of federalism is not for the States alone to vindicate.”110 That is because “[s]tates are not the sole intended beneficiaries of federalism.”111 When an individual has been injured by a violation of the vertical separation of powers, he or she has a right to object to and challenge that constitutional infirmity. “[I]ndividuals, too, are protected by the operations of separation of powers and checks and balances; and they are not disabled from relying on those principles in otherwise justiciable cases and controversies.”112This article only suggests that states may have their own role to play in creating the necessary “tension between federal and state power” to maintain “the promise of liberty.”113 If exercised properly, serious state-led litigation against the federal government (and the “credible” threat of such litigation) could go a long way toward persuading the federal government to respect states as the counterweight the framers envisioned and to exercise appropriate “restraint [] .”114

Democracy solves conflictDiamond 20 [Larry J. Diamond; 4/14/2020; Professor of Political Science and Sociology at Stanford University; “Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency,” p. 201-202] |Trip|Hard security interests are at stake. As even the Trump administration’s 2017 National Security Strategy makes clear, the main threats to U.S. national security all stem from authoritarianism , whether in the form of tyrannies from Russia and China to Iran and North Korea or in the guise of antidemocratic terrorist movements such as ISIS . 1 By supporting the development of democracy around the world, we can deny these authoritarian adversaries the geopolitical running room they seek . Just as Russia, China, and Iran are trying to undermine democracies to bend other countries to their will, so too can we contain these autocrats’ ambitions by helping other countries build effective, resilient democracies that can withstand the dictators’ malevolence. Of course, democratically elected governments with open societies will not support the American line on every issue. But no free society wants to mortgage its future to another country. The American national interest would best be secured by a pluralistic world of free countries—one in which autocrats can no longer use corruption and coercion to gobble up resources, alliances, and territory.If you look back over our history to see who has posed a threat to the United States and our allies, it has always been authoritarian regimes and empires. As political scientists have long noted, no two democracies have ever gone to war with each other —ever. It is not the democracies of the world that are supporting international terrorism, proliferating weapons of mass destruction, or threatening the territory of their neighbors .

2NC AT: AG Bad For Democracy Nolette’s arg is not applicable to the Counterplan – and impacts are limited – benefits of lawsuits outweigh – its critical to democracyLin 18 [Elbert Lin; 2/26/2018; Solicitor General of West Virginia from 2013 to 2017; “States Suing the Federal Government: Protecting Liberty or Playing Politics?,” Richmond Law Review, Vol. 52, p. 651-652] |Trip|CONCLUSIONThere is no question that states have been suing the federal government (and the executive in particular) more often in recent years, and they will continue to do so under the Trump Administration. By Nolette’s count, state attorneys general brought fiftynine multistate lawsuits against the federal government between 2009 and 2016.133 And according to one estimate, President Trump had been sued in federal court by state attorneys general no fewer than twenty-five times by May 2017.134At a very high level, I believe state-led litigation against the federal government is valuable. Our system of dual sovereignty is critical to the preservation of individual freedom. As the United States Supreme Court has said , “freedom is enhanced by the creation of two governments, not one.”135 “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”136 But that system depends on states being willing to push back on federal overreach and on the federal government respecting the states as separate sovereigns. 137 The Court’s admonition in Gregory v. Ashcroft is worth repeating one more time: “These twin powers will act as mutual restraints only if both are credible.”138As with many things, though, the devil is in the details. There are very real concerns—many that Nolette has set forth quite persuasively—about the way in which state attorneys general are taking on the federal government and the incentives driving those attorneys general. I do not think those concerns call into question whether state pushback on federal overreach is needed at all, but rather whether state attorneys general are serving as faithful agents of that task. That seems to be Nolette’s overarching (and fair) concern: that state attorneys general are taking federalism’s name in vain in support of the rise in state-led litigation against the federal government.139 I am not sure what can be done about that, but I am sure we should not let that concern lead us to forget the importance of state resistance to federal overreach, or to overlook the benefits obtained from states checking federal power .

2NC AT: AG Political Motivations AG’s aren’t corrupted by political motivations – research goes neg Brumvele 16 [Elizabeth A. Brumleve; 2016; Analyst at Partner Forces LCC, Master’s in Public Service and Administration from Texas A&M University, Honors BS in Political Science from University of Dayton; “The Evolution of the Scope and Political Ambition of the State Attorneys General,” p. 12-13, https://ecommons.udayton.edu/cgi/viewcontent.cgi?article=1080&context=uhp_theses] |Trip|In order to better understand how political ambition shapes the activities of AGs, I conducted interviews with a number of AGs. This research greatly benefitted from the opportunity to conduct these interviews with sitting and former attorneys general to gain their insights on the office and the claims of the research. The AGs consulted in the research represented current and former attorneys general, Republican and Democrats, males and females, and all methods of selection. Interviews were conducted with the promise of total confidentiality in order to have the most candid and insightful conversations, thus any identifying characteristics and direct quotes are not included. These interviews give both institutional information as well as an understanding of the human, emotional reasoning that plays an active role in the decision making and careers of the state attorneys general. The goal of the interviews was to get an initial assessment of how AGs view their offices as well as their post-AG career ambitions and trajectories. The interviewees began by describing their career paths and motivations to become an AG. They shared stories of career paths almost always driven by a desire of a career in public service. Many explained that AG seemed to be a natural expansion of the work they had already begun. Several noted a deep respect for the office, and they were encouraged by the potential to work in an influential office where their legal expertise could be used to bring about positive change in each of their states. Because the topic of political ambition has led to the joke of AG standing for aspiring governor or almost governor, the interviewees shared their thoughts on whether or not they are currently or did at one point plan to seek higher office, if they personally viewed the office as a stepping stone, and if they believe there are any positive or negative impacts as a result of the “almost governor” joke. A number of AGs viewed holding a higher office, specifically governor, as a natural progression or sort of promotion. As it is normal for the average person to want to climb the corporate ladder when working in the private sector, so too they often saw it as normal for AGs wish to rise to higher levels of government office. While AG may be a person’s highest political ambition, it is also almost expected that many would desire election or appointment to a higher office. Although aware of the office’s tendency to be used for campaigning for another office, none of the interviewees said that the potential political springboard was an influential factor in their decision to become AG .

2NC AT: Accountability Uncooperative federalism turns accountability – information AND access Pozen 9 [Jessica Bulman-Pozen; 2009; Betts Professor of Law and a director of the Center for Constitutional Governance at Columbia Law School; Heather K. Gerken; “Uncooperative Federalism,” Yale Law Journal, Vol. 118, No. 7, p. 1290-1291] |Trip|Even when we can look to voters to hold officials accountable for their missteps, it is still not clear that uncooperative federalism (or, more accurately, joint regulation) falls short on the accountability measure . To the contrary , when state and federal officials disagree, joint regulation offers at least three accountability-promoting devices: information, access, and allies . First, disagreement within a joint regulatory regime can provide a useful information -enforcing device. Accountability , of course, requires accurate information . In a complex regulatory world, it is often difficult to discern who is responsible for a problem even when the states and federal government regulate independently. When state and federal officials are at loggerheads, joint regulation imposes the rough equivalent of "joint and several liability" upon them. The advantage to this strategy, at least in theory, is that it creates an incentive for defendants to play the blame game among themselves, using their resources to get the goods on each other. When state and federal officials disagree, dual regulation is the political cognate to joint and several liability; it should create an incentive for state and federal officials to disseminate information about who is to blame for a problem. This means that the people with the most information about who is responsible-and the greatest ability to get that information out-will be hard at work educating voters.12°Second, accountability is not simply about knowing who is responsible, but also being able to appeal to them. And interposing the state between the people and the federal government may bolster this aspect of accountability by offering more access points for individuals who oppose federal policy -they can petition not only the federal government, but also state officials . Having more access points may not matter as much if both the states and federal government are committed to the same project. But where , as with uncooperative federalism, state and federal officials disagree , citizens and public interest groups ought to be able to find someone to help them push their cause. This brings us to a third, related point -one that we explain in greater detail in Part III. Forcing state officials to participate in a federal scheme they oppose may generate more allies for the citizens who oppose the scheme. If states can simply opt out of a program with which they disagree, they may not have much incentive to devote the resources needed to mount an effective challenge to federal policy. 2' When state officials fear that they will suffer the political consequences of carrying out a policy that runs contrary to their constituents' interests, they have a greater incentive to play the contrarian' s role. Those who favor the autonomy model of state dissent are absolutely correct that "sometimes it takes a government to check a government." ' But it may be that federal-state integration, rather than autonomy, creates more incentives for state governments to check the federal government. When a state finds itself entangled with unpopular federal policies, citizens demanding federal accountability may suddenly find themselves with a rather powerful ally .

2NC AT: Avoidance Uncooperative federalism solves avoidance – thwarting and pressure forces the agendaPozen 9 [Jessica Bulman-Pozen; 2009; Betts Professor of Law and a director of the Center for Constitutional Governance at Columbia Law School; Heather K. Gerken; “Uncooperative Federalism,” Yale Law Journal, Vol. 118, No. 7, p. 1287] |Trip|2. Agenda SettingAnother advantage associated with the power of the servant is that it enables state officials to set the agenda . The great challenge for most dissenters is to get those in power to address their concerns. Ignoring dissent is often the most effective way to undermine it. When states challenge federal policies in areas where they are autonomous sovereigns, they are in roughly the same position as individual dissenters - outside the system - thus making it easy for federal officials to pursue a strategy of avoidance.'o 8 A state may enact policies that exemplify its dissenting views , but the less the effects of those policies are felt elsewhere, the easier it is for federal officials simply to ignore the challenge. That means that the more rigid the bounds between state and federal policymaking, the less effective a state's resistance is likely to be.Avoidance is more difficult when states are engaged in uncooperative federalism because states are administering federal law. The absence of uniformity, coupled with the risk that other states will demand similar exemptions, is likely to put pressure on the federal government to react. Variation, after all, can be administratively costly. Moreover, federal officials may find it irksome to see federal funds being used to thwart a statutory mandate rather than to serve it. Modus vivendi is less palatable when funded out of your own pocket. We thus would expect the federal government to respond in some way to a state's challenge. It might override the state, tolerate its position, or adopt the state's preferred policy. The key is that the federal government will be pressured to engage the state's position. And engagement is at least a partial victory for any dissenter.

2NC AT: Court Clog No Court Clog – suites are inevitable over environmental law – states not keyLin 20 [Albert C. Lin; 2020; Professor of Law at University of California, Davis; “Uncooperative Environmental Federalism: State Suits Against the Federal Government in an Age of Political Polarization,” George Washington Law Review, Vol. 88, No. 4, p. 152] |Trip|Perhaps most importantly, the desirability of state public-law litigation should not be considered in a vacuum.334 Lemos and Young have pointed out that industry, nongovernmental organizations, and other private actors often will sue to challenge a federal action, regardless of whether states sue.335 Litigation is almost inevitable for environmental policy initiatives. A 2016 Congressional Research Service report observed that “[v]irtually all major EPA regulatory actions are subjected to court challenge.”336 Even during the 1980s , when state suits challenging national policies were rare , former EPA Administrator William Ruckelshaus estimated that eighty percent of the EPA’s rules resulted in litigation.337 It thus seems unlikely that eliminating state-filed lawsuits would significantly impact the volume of environmental suits against the federal government.338 Often, states are simply adding their voices to an already crowded courtroom. In contrast to industry or other nongovernmental plaintiffs, though, a state-plaintiff represents the public interest, albeit a state-centered notion of the public interest.339 Compared to private mechanisms for aggregating diffuse interests, state governments may be preferable plaintiffs because of their greater “democratic accountability” and “unique institutional perspectives.”340

2NC AT: Conservative States Bad Counterplan better deals with conservatives – state level is more greenMerriman 19 [Ben Merriman; 4/15/2019; Assistant professor at the School of Public Affairs & Administration at the University of Kansas; “Conservative Innovators: How States Are Challenging Federal Power,” University of Chicago Press, p. 169] |Trip|A notable exception to this general subordination of federalist thinking to partisan thinking can be found in what has been taken to be an exceptionally divisive issue: environmental protection and natural resource management , admittedly not an area where this book has painted a very rosy picture. There is often a public preference for greater environmental involvement at lower levels of government irrespective of ideological leanings (e.g., Mills and Gore 2016), and conservatives are measurably more supportive of environmental action at the state level than at the federal (Jacobs 2017). On matters such as renewable energy and water management, conservative states have shown a meaningful readiness to take significant action even if the form of this action differs from liberal states’ responses to similar issues (Hess, Mai, and Brown 2016; Hess et al. 2017). This is, very possibly, an area where the opportunity for cooperation across state and partisan lines may persist . It is notable, for instance, that managing surface water scarcity prompted the rise of interstate compacts in the twentieth century; the compact approach to water management has been a qualifi ed success and also promoted innovative use of the compact form in a way that has facilitated cooperation in a great many other areas of policy over the past century.

2NC AT: Fed/Biden solves Climate States are key – their decentralization allows for the most innovation – that’s Shryrock. Only Innovation solves warmingPieper et al. 21 [Cornelius Pieper; 3/21/2021; Director of the Boston Consulting Group’s Center for Climate & Sustainability, PhD and MS from Bonn University; Kanika Chandaria; Marco Duso; Michel Frédeau; Jesper Nielsen; Dennis Pamlin; “The Next Generation of Climate Innovation,” https://www.bcg.com/en-us/publications/2021/next-generation-climate-innovation] |Trip|Global momentum is building to achieve net zero in greenhouse gas (GHG)— emissions and to do so more quickly than previously envisioned. Getting there will require unprecedented levels of innovation . While a fast-rising number of companies and governments are committing themselves to ambitious net-zero goals, most focus the strategy exclusively on emissions and expect the necessary technologies and solutions to become available as needed . Annual global emissions of carbon dioxide equivalents now amount to about 51 gigatons. Some estimates, such as the P4 pathway defined by the Intergovernmental Panel on Climate Change (IPCC), show that today’s technologies have the potential to reduce global emissions by about two-thirds. More innovation-driven projections—such as IPCC’s low-energy demand pathway, P1—do not bank on any new technologies but instead assume radical business model and policy innovation. It is clear that reaching climate change goals requires new technologies and novel business models and markets. Fortunately, there’s momentum building for a new generation of innovative solutions.

The US is uniquely key on innovation Levitz 21 [Eric Levitz; 4/22/2021; Senior Writer at New York Magazine; “Why the World Can’t Trust America on Climate,” https://nymag.com/intelligencer/2021/04/why-the-world-cant-trust-biden-on-climate-change.html] |Trip|More concretely, no nation-state on planet Earth is better positioned to spur green innovation than the U.S . We have the world’s top research universities, more per capita wealth than any large country, and the world’s reserve currency, which allows us to finance public investment at near-zero interest rates. Breakthrough technologies that allow low-income nations to have their rapid economic development — and CO2 reductions, too — are humanity’s last best hope . The U.S. should spend as much as we can afford on facilitating such breakthroughs.

Carbon Pricing is key Tooze 21 [Adam Tooze; 6/3/2021; Economic Historian and Director of the European Institute at Columbia University; “Can Elites Start the Climate Revolution?,” https://foreignpolicy.com/2021/06/03/can-elites-start-the-climate-revolution/] |Trip|In the United States right now, neither the right nor the left likes the idea of carbon pricing: the right because it threatens what they regard as the American way of life, and the left because it is seen as a license to pollute for the most affluent. But there is no plausible scenario for comprehensive decarbonization without carbon pricing. Regulations can tackle the most egregious sources of pollution. Investment can help lower the cost of green energy. The problem is that it can also encourage an offsetting increase in energy consumption. A carbon tax will help to squeeze dirty energy consumption out of the entire system. A cap-and-trade system , like the European Emissions Trading System, is even better, because it sets an upper limit to total emissions .

Fed’s have zero chance of doing it Gross 21 [Samantha Gross; 5/10/2021; Director of the Brookings Center Energy Security and Climate Initiative, Fellow of Foreign Policy; “Barriers to achieving US climate goals are more political than technical,” https://www.brookings.edu/blog/planetpolicy/2021/05/10/barriers-to-achieving-us-climate-goals-are-more-political-than-technical/] |Trip|Unlike in the European Union, a nationwide price on carbon is off the table for now. A carbon price, through a tax or a cap and trade program, would require legislation from Congress . And such legislation has no chance of passing the current Congress . Without a price on carbon, sector-specific policies must carry the burden of reducing emissions.

Fed will go back to being Climate Deniers – GOP will win – zeroes federal efforts and provides uniquenessLevitz 21 [Eric Levitz; 4/22/2021; Senior Writer at New York Magazine; “Why the World Can’t Trust America on Climate,” https://nymag.com/intelligencer/2021/04/why-the-world-cant-trust-biden-on-climate-change.html] |Trip|The GOP remains about as hostile to climate science, and deferential to dirty-energy rentiers, as it’s ever been. Some of the party’s senior leaders have taken to acknowledging the existence of man-made warming. But the last year has established that “trust the experts when they tell you that dramatic policy changes are required to avert mass death” is not a position that animates the Republican base or the party’s new generation of lawmakers. America will only stay on the green-and-narrow path for as long as the GOP stays out of power .

And Republicans are unlikely to remain in the wilderness for long. Absent a ban on partisan gerrymandering, the GOP is overwhelmingly likely to retake the House in 2022, and will have an excellent shot at flipping the Senate . Last year, the Electoral College’s tipping-point state was about 4 points more Republican than the nation as a whole ; which is to say, there is a good chance the GOP can win the White House in 2024 while losing the popular vote by 3.9 percent .

2NC AT: Fed Leadership K2 US Climate Federal leadership not key – Maryland provesShryock 21 [Allison E. Shryock; 5/1/2021; Coordinator for the Ohio University Office of Sustainability; “American Federalisms and Climate Policy,” p. 57-58, https://etd.ohiolink.edu/apexprod/rws_etd/send_file/send?accession=ouhonors1618143242538514&disposition=inline] |Trip|Current State Climate Actions Despite of a lack of leadership during certain presidential administrations, such as Trump’s , states are still working on environmental regulations. Thirty-four percent of states currently have a climate adaptation plan or a climate action goal (State and Local Adaptation Plans). The states with an adaptation plan are Alaska, California, Colorado, Connecticut, D.C., Delaware, Florida, Hawaii, Maine, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, Rhode Island, Virginia and Washington. Although some of these have been updated as recently as 2020, many were created more than ten years ago (State and Local Adaptation Plans). Maryland is an example of a state that has many plans in place to prepare for climate change. In 2007, the Governor established the Maryland Commission on Climate Change with the goal of creating a Climate Action Plan that includes measures to reduce greenhouse gas emissions and prepare for the impacts of climate change. It also established the Adaptation and Response Working Group to develop the adaptation portion of the plan. Maryland now has the Comprehensive Strategy for Reducing Maryland’s Vulnerability to Climate Change, Phase I: Sea-level rise and coastal storms and a Comprehensive Strategy for Reducing Maryland’s Vulnerability to Climate Change, Phase II: Building societal, economic, and ecological resilience State and Local Adaptation Plans). The first plan addresses the effects of sea-level rise and coastal storms on the existing built environment, economy and human health. The second plan addresses changes in precipitation patters and increased temperature impacts on health, agriculture, terrestrial ecosystems, aquatic ecosystem, water resources and population growth (State and Local Adaptation Plans). The state has twelve state laws and policies in place that relate to climate change mitigation . There are also eight state agency plans . State agency plans include hosting workshops focused on best practices for agriculture, conducting wildlife vulnerability assessments, a coast smart siting and design criteria and more. Maryland continually adds to their state policies, with the most recent Bill passed in May of 2020 (State and Local Adaptation Plans).

2NC AT: Fed Leadership K2 Int Climate States lead and are modeled internationally – California provesGalbraith 17 [Jean Galbraith; 6/10/2017; Professor of public international law and U.S. foreign relations law at the University of Pennsylvania; “Cooperative and Uncooperative Foreign Affairs Federalism,” Harvard Law Review, Vol. 130, No. 8, p. 2148-2149] |Trip|Mitigating climate change is a challenge for all levels of government — international, national, state, and local. As Glennon and Sloane note, some states and cities have embraced climate change mitigation measures (pp. 62–63). In doing so, states have often coordinated with each other and with foreign counterparts in both practical and expressivist ways (pp. 62–63). California’s efforts are exceptionally notable. State legislation requires sweeping emissions reductions;65 California and Quebec have sought to integrate their cap-and-trade programs ;66 and California has spearheaded a coalition of state and local governments around the world who have committed to climate policy.67 California even sent a large and high-profile delegation to the United Nations conference on climate change in Paris in 2015. 68

2NC AT: Means Fail Gollob is neg:

1 – Counterplan solves – its policy area of Environmental Law is a question of Federalism – so normal means are the National Conference of State Legislatures and National Governors Association Gollob 11 [Justin Gollob; 2/5/2011; Professor of Political Science at Colorado Mesa University, PhD in Political Science from Temple University; J. Wesley Leckrone; “The Effectiveness of Intergovernmental Lobbying Mechanisms in the American Federal System,” Fédéralisme, Vol. 12, p. 4] |Trip|3.2 Intergovernmental Lobbying Through Collective OrganizationsThe second tool for preserving the interests of states is through organizing professional associations of state government officials. Termed intergovernmental lobbying groups (IGR ), organizations such as the National Conference of State Legislatures (NCSL) and the National Governors Association (NGA) reach consensus positions on issues of importance to state governments . These organizations represent the broad policy needs of elected state officials. Scholars in this field have focused on the agendas of peak IGR groups18. Much like peak business associations, these IGR groups can be effective voices for state government when they are internally unified and when they coalesce with other state and local groups to present a united front to Congress19 . However, unity is difficult. The organizations were formed to represent the interests of state governments as institutions within the American federal system . Status as governors or state legislators does not ensure that consensus will emerge within the peak associations. Regionalism, ideology, party, population and personality characteristics are internal dynamics that make consensus difficult20. The groups will not take stances on issues where there are divisions within their membership. Consequently, the generalist associations remain silent on some issues that affect federalism, leaving individual states to lobby on their own.3.3 Individual State Offices in Washington, DCStates do not rely solely on the NGA or NCSL to speak on their behalf. Many states have their own Washington, DC offices in order to advocate their discrete interests to the federal government. The peak IGRs lack the time or resources to become involved in the particularistic details of every state government’s need before the federal government. States appear most likely to use their Washington, DC offices to advocate for their particularistic needs while leaving theoretical questions of federalism to the peak IGR organizations. The Washington, DC offices allow states to remain abreast of federal developments that will affect their constituency and to rapidly respond by providing the legislative or executive branch with information as to how policies will affect their state21. Washington, DC offices are overwhelmingly operated at the behest of a state’s governor, who has the authority to open or close an office. Benefits accrued from the Washington, DC Office invariably benefit both the state and the political fortunes of the governor. Jensen argues that there are three main benefits: 1) they procure federal funding through line item grants or by achieving favorable funding formulas in large federal programs; 2) they help achieve policy goals, often by procuring a waiver allowing an individual state to administer a federal program or regulation with flexibility; and 3) they help accrue political benefits such as visibility and prestige for individual governors22. The addition of these political considerations on behalf of individual politicians means that these offices often advocate for more than just the federalism interests of a state. However, they still represent a tool of state policy transference worthy of study.

2 – Memorials are not normal means – they are the LEAST likely Gollob 11 [Justin Gollob; 2/5/2011; Professor of Political Science at Colorado Mesa University, PhD in Political Science from Temple University; J. Wesley Leckrone; “The Effectiveness of Intergovernmental Lobbying Mechanisms in the American Federal System,” Fédéralisme, Vol. 12, p. 7-8] |Trip|6. Mechanisms of Intergovernmental InfluenceOne of the most important questions for scholars of intergovernmental relations is how states voice their opinions about policy to the federal government. Our survey measures both the frequency of use, and the perceived effectiveness of, the five aforementioned mechanisms of preference transference available to the state. The results show that while state legislators have a number of mechanisms available to them, not every mechanism is equal. Our data shows that, sensibly, those mechanisms that receive the greatest usage are also the ones that are thought to be most effective.6.1. Intergovernmental Mechanism UsageAt a base level we desire to know which intergovernmental lobbying tools are used by state legislators. Consequently we measured the frequency by which state legislatures use popular tools of intergovernmental lobbying. These tools include: working with intergovernmental lobbying groups, sending a state memorial to Congress, meeting with members of the state’s congressional delegation, working with state legislative/governors office representatives in Washington DC, and working with interest groups. Respondents were asked to rate on a scale of 1 (not at all) to 5 (very frequently) how frequently they use five different tools to communicate their policy preferences to Washington DC . As illustrated in Table 2, the results show that as a group , state legislators demonstrate the greatest likelihood of working with their congressional delegation when faced with a federal-state policy issues. Specifically, the responses show that meeting with their congressional delegation is the most frequently used tool (3.5 average response) followed by working with an intergovernmental lobbying groups (3.2) and the state legislative/governor’s office representative in Washington DC (3.2) . Meeting with an interest group (2.9) and using memorials to Congress (2.6) were the least popular tool as reported by state legislators.

3 – Uniformity in memorials still solves – critical mass empirically influences the fedGollob 11 [Justin Gollob; 2/5/2011; Professor of Political Science at Colorado Mesa University, PhD in Political Science from Temple University; J. Wesley Leckrone; “The Effectiveness of Intergovernmental Lobbying Mechanisms in the American Federal System,” Fédéralisme, Vol. 12, p. 9] |Trip|If memorials are ineffective, why are they so numerous? Our data suggests two reasons . First, memorials are important in that they give state legislators a vehicle to transmit their preferences to Congress. The text of the memorials is then entered into the daily Congressional Record , which serves as the official record of the proceedings of the United States Congress. As one state legislator noted, memorials are “the only tool we have

to get the federal government’s attention.” Another legislator said that memorials provide Congress with “insight into what the impact will be on a state level.” Second, memorials contribute to the larger scope of agenda setting and deliberation occurring in Washington, DC. One state

legislator claimed that memorials might influence the agenda if “a critical mass of states express the same policy goal ”. 40 [Insert

Footnote 40] This idea seems to be reinforced by previous research using state legislative memorials on the topics of a federal balanced budget amendment (Nice 1986) and opposition to REAL ID (Regan and Deering 2009). [Footnote 40 Ends] Another respondent stated that memorials have a greater impact as part of a larger “grass roots” effort that combines the legislature’s position on an issue with lobbying by organizations from their state. At a minimum,

memorials appear to help reinforce arguments already being made by a state’s advocates. Consequently, memorials are a useful tool in understanding what states want from the federal government.

2NR AT: NGA is International Fiat Not International FiatNGA 21 [National Governors Association; 2021; “NGA Leadership,” https://www.nga.org/governors/ngaleadership/] |Trip|Founded in 1908, the National Governors Association (NGA) is the collective voice of the nation’s governors and one of Washington, D.C.’s most respected public policy organizations. Its members are the governors of the 55 states, territories and commonwealths. Through NGA, governors identify priority issues and deal collectively with matters of public policy and governance at the state and national levels .

2NC AT: Officials Fail/Ignorant State Officials are in-the-know – Uncooperative federalism specifically ensures itPozen 9 [Jessica Bulman-Pozen; 2009; Betts Professor of Law and a director of the Center for Constitutional Governance at Columbia Law School; Heather K. Gerken; “Uncooperative Federalism,” Yale Law Journal, Vol. 118, No. 7, p. 1288] |Trip|When a state uses its sovereign power to contest federal policy, it does so as an outsider to the system.' °9 There are many advantages to dissenting as an outsider. State officials are not bound by federal program requirements, they are free to say whatever they want, and they are untainted by any association with the policies they are criticizing. There are also disadvantages associated with an outsider's status, however. State officials may be considered less knowledgeable than those who administer the program, and they may be unfamiliar to federal officials. They may be able to speak more forcefully than partial insiders, but they may also be less likely to get heard. Uncooperative federalism, in contrast, takes place in areas where states can take advantage of the connective ties that bind them to federal officials. While those ties may lead state officials to dissent in less forceful or radical terms, they should also yield knowledge of the system and personal relations with the people best positioned to change the policy . If effective dissent requires one to know both what to say and to whom to say it, uncooperative federalism ought to be fairly effective .

2NC AT: Perm Solves Suit The Plan removes Standing – mootness and ripeness – results in dismissal of the suit, NOT a Ruling – empirics Cornell 1 [Cornell Law School’s Legal Information Institute; 1/31/2001; “The Requirement of a Real Interest,” https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-requirement-of-a-real-interest] |Trip|The Requirement of a Real InterestAlmost inseparable from the requirements of adverse parties and substantial enough interests to confer standing is the requirement that a real issue be presented, as contrasted with speculative, abstract, hypothetical, or moot issues. It has long been the Court’s “considered practice not to decide abstract, hypothetical or contingent questions.”532 A party cannot maintain a suit “for a mere declaration in the air.”533 In Texas v. ICC ,534 the State attempted to enjoin the enforcement of the Transportation Act of 1920 on the ground that it invaded the reserved rights of the State . The Court dismissed the complaint as presenting no case or controversy, declaring: “It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power.”535 And in Ashwander v. TVA,536 the Court refused to decide any issue save that of the validity of the contracts between the Authority and the Company. “The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the person complaining.”537Concepts of real interest and abstract questions appeared prominently in United Public Workers v. Mitchell,538 an omnibus attack on the constitutionality of the Hatch Act prohibitions on political activities by governmental employees. With one exception, none of the plaintiffs had violated the Act, though they stated they desired to engage in forbidden political actions. The Court found no justiciable controversy except in regard to the one, calling for “concrete legal issues, presented in actual cases, not abstractions,” and seeing the suit as really an attack on the political expediency of the Act.539Advisory Opinions.In 1793, the Court unanimously refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution.540 Noting the constitutional separation of powers and functions in his reply, Chief Justice Jay said: “These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seem to have been purposely as well as expressly united to the Executive departments.”541 Although the Court has generally adhered to its refusal, Justice Jackson was not quite correct when he termed the policy a “firm and unvarying practice. . . .”542 The Justices in response to a letter calling for suggestions on improvements in the operation of the courts drafted a letter suggesting that circuit duty for the Justices was unconstitutional, but they apparently never sent it;543 Justice Johnson communicated to President Monroe, apparently with the knowledge and approval of the other Justices, the views of the Justices on the constitutionality of internal improvements legislation;544 and Chief Justice Hughes in a letter to Senator Wheeler on President Roosevelt’s Court Plan questioned the constitutionality of a proposal to increase the membership and have the Court sit in divisions.545 Other Justices have individually served as advisers and confidants of Presidents in one degree or another.546Nonetheless, the Court has generally adhered to the early precedent and would no doubt have developed the rule in any event, as a logical application of the case and controversy doctrine. As Justice Jackson wrote when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action: “To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form—advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President’s exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action.”547 The Court’s early refusal to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,548 or where the judgment of the Court was subject to later review or action by the executive or legislative branches of government,549 or where the issues involved were abstract or contingent.550Declaratory Judgments.Rigid emphasis upon such ele- ments of judicial power as finality of judgment and award of execution coupled with equally rigid emphasis upon adverse parties and real interests as essential elements of a case and controversy created serious doubts about the validity of any federal declaratory judgment procedure.551 These doubts were largely dispelled by Court decisions in the late 1920s and early 1930s,552 and Congress quickly responded with the Federal Declaratory Judgment Act of 1934.553 Quickly tested, the Act was unanimously sustained.554 “The principle involved in this form of procedure,” the House report said, “is to confer upon the courts the power to exercise in some instances preventive relief; a function now performed rather clumsily by our equitable proceedings and inadequately by the law courts.”555 The Senate report stated: “The declaratory judgment differs in no essential respect from any other judgment except that it is not followed by a decree for damages, injunction, specific performance, or other immediately coercive decree. It declares conclusively and finally the rights of parties in litigations over a contested issue, a form of relief which often suffices to settle controversies and fully administer justice.”556The 1934 Act provided that “[i]n cases of actual controversy” federal courts could “declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed. . . .”557 Upholding the Act, the Court wrote: “The Declaratory Judgment Act of 1934, in its limitation to ‘cases of actual controversy,’ manifestly has regard to the constitutional provision and is operative only in respect to controversies which are such in the constitutional sense. The word ‘actual’ is one of emphasis rather than of definition. Thus the operation of the Declaratory Judgment Act is procedural only. In providing remedies and defining procedure in relation to cases and controversies in the constitutional sense the Congress is acting within its delegated power over the jurisdiction of the federal courts which the Congress is authorized to establish.”558 Finding that the case presented a definite and concrete controversy, the Court held that a declaration should have been issued.559The Court has insisted that “the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit.”560 As Justice Douglas wrote: “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”561 It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even then, however, the Court is under no compulsion to exercise its jurisdiction.562 Use of declaratory judgments to settle disputes and identify rights in many private areas, like insurance and patents in particular but extending into all areas of civil litigation, except taxes,563 is common. The Court has, however, at various times demonstrated a substantial reluctance to have important questions of public law, especially regarding the validity of legislation, resolved by such a procedure.564 In part, this has been accomplished by a strict insistence upon concreteness, ripeness, and the like.565 Nonetheless, even at such times, several noteworthy constitutional decisions were rendered in declaratory judgment actions.566

As part of the 1960s hospitality to greater access to courts, the Court exhibited a greater receptivity to declaratory judgments in constitutional litigation, especially cases involving civil liberties issues.567 The doctrinal underpinnings of this hospitality were sketched out by Justice Brennan in his opinion for the Court in Zwickler v. Koota,568 in which the relevance to declaratory judgments of the Dombrowski v. Pfister569 line of cases involving federal injunctive relief against the enforcement of state criminal statutes was in issue. First, it was held that the vesting of “federal question” jurisdiction in the federal courts by Congress following the Civil War, as well as the enactment of more specific civil rights jurisdictional statutes, “imposed the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims.”570 Escape from that duty might be found only in “narrow circumstances,” such as an appropriate application of the abstention doctrine, which was not proper where a statute affecting civil liberties was so broad as to reach protected activities as well as unprotected activities. Second, the judicially developed doctrine that a litigant must show “special circumstances” to justify the issuance of a federal injunction against the enforcement of state criminal laws is not applicable to requests for federal declaratory relief: “a federal district court has the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusion as to the propriety of the issuance of the injunction.”571 This language was qualified subsequently, so that declaratory and injunctive relief were equated in cases in which a criminal prosecution is pending in state court at the time the federal action is filed572 or is begun in state court after the filing of the federal action but before any proceedings of substance have taken place in federal court,573 and federal courts were instructed not to issue declaratory judgments in the absence of the factors permitting issuance of injunctions under the same circumstances. But in the absence of a pending state action or the subsequent and timely filing of one, a request for a declaratory judgment that a statute or ordinance is unconstitutional does not have to meet the stricter requirements justifying the issuance of an injunction.574Ripeness . Just as standing historically has concerned who may bring an action in federal court, the ripeness doctrine concerns when it may be brought. Formerly, it was a wholly constitutional principle requiring a determination that the events bearing on the substantive issue have happened or are sufficiently certain to occur so as to make adjudication necessary and so as to assure that the issues are sufficiently defined to permit intelligent resolution. The focus was on the harm to the rights claimed rather than on the harm to the plaintiff that gave him standing to bring the action,575 although, to be sure, in most cases the harm is the same. But in liberalizing the doctrine of ripeness in recent years the Court subdivided it into constitutional and prudential parts576 and conflated standing and ripeness considerations.577The early cases generally required potential plaintiffs to expose themselves to possibly irreparable injury in order to invoke federal judicial review. Thus, in United Public Workers v. Mitchell,578 government employees alleged that they wished to engage in various political activities and that they were deterred from their desires by the Hatch Act prohibitions on political activities. As to all but one plaintiff, who had himself actually engaged in forbidden activity, the Court held itself unable to adjudicate because the plaintiffs were not threatened with “actual interference” with their interests. The Justices viewed the threat to plaintiffs’ rights as hypothetical and refused to speculate about the kinds of political activity they might engage in or the Government’s response to it. “No threat of interference by the Commission with rights of these appellants appears beyond that implied by the existence of the law and the regulations.”579 Similarly, resident aliens planning to work in the Territory of Alaska for the summer and then return to the United States were denied a request for an interpretation of the immigration laws that they would not be treated on their return as excludable aliens entering the United States for the first time, or alternatively, for a ruling that the laws so interpreted would be unconstitutional. The resident aliens had not left the country and attempted to return, although other alien workers had gone and been denied reentry, and the immigration authorities were on record as intending to enforce the laws as they construed them.580 Of course, the Court was not entirely consistent in applying the doctrine.581It remains good general law that pre-enforcement challenges to criminal and regulatory legislation will often be unripe for judicial consideration because of uncertainty of enforcement,582 because the plaintiffs can allege only a subjective feeling of inhibition or fear arising from the legislation or from enforcement of it,583 or because the courts need before them the details of a concrete factual situation arising from enforcement in order to engage in a reasoned balancing of individual rights and governmental interests.584 But one who challenges a statute or possible administrative action need demonstrate only a realistic danger of sustaining an injury to his rights as a result of the statute’s operation and enforcement and need not await the consummation of the threatened injury in order to obtain preventive relief, such as exposing himself to actual arrest or prosecution. When one alleges an intention to engage in conduct arguably affected with a constitutional interest but proscribed by statute and there exists a credible threat of prosecution thereunder, he may bring an action for declaratory or injunctive relief.585 Similarly, the reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the court has sufficient facts before it to enable it to intelligently adjudicate the issues.586Of considerable uncertainty in the law of ripeness is Duke Power, in which the Court held ripe for decision on the merits a challenge to a federal law limiting liability for nuclear accidents at nuclear power plants, on the basis that, because the plaintiffs had sustained an injury-in-fact and had standing, the Article III requisite of ripeness was satisfied and no additional facts arising out of the occurrence of the claimed harm would enable the court better to decide the issues.587 Should this analysis prevail, ripeness as a limitation on justiciability will decline in importance.Mootness . A case initially presenting all the attributes neces- sary for federal court litigation may at some point lose some attribute of justiciability and become “moot.” The usual rule is that an actual controversy must exist at all stages of trial and appellate consideration and not simply at the date the action is initiated . 588 “ Under Article III of the Constitution , federal courts may adjudicate only actual, ongoing cases or controversies. . . . Article III denies federal courts the power ‘to decide questions that cannot affect the rights of litigants in the case before them,’ . . . and confines them to resolving ‘real and substantial controvers[ies] admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. To sustain our jurisdiction in the present case, it is not enough that a dispute was very much alive when suit was filed , or when review was obtained in the Court of Appeals . . . . The parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.”589 Because, with the advent of declaratory judgments, it is open to the federal courts to “declare the rights and other legal relations” of the parties with res judicata effect,590 the question in cases alleged to be moot now seems largely if not exclusively to be decided in terms of whether an actual controversy continues to exist between the parties rather than in terms of any additional older concepts.591 So long as concrete, adverse legal interests between the parties continue, a case is not made moot by intervening actions that cast doubt on the practical enforceability of a final judicial order.592

2NC AT: Sovereign Immunity States still sue – Sovereign Immunity gets waived over the environment Lin 20 [Albert C. Lin; 2020; Professor of Law at University of California, Davis; “Uncooperative Environmental Federalism: State Suits Against the Federal Government in an Age of Political Polarization,” George Washington Law Review, Vol. 88, No. 4, p. 110] |Trip|Discussions of cooperative federalism and uncooperative federalism have tended to focus on the state and federal governments’ political branches, while devoting less attention to the courts.55 Yet states also can dissent—and increasingly have done so—by filing suits against federal laws and policies pertaining to the environment, immigration, health care, same-sex marriage, and other matters.56 The federal government may not be sued absent a waiver of sovereign immunity,57 of course, but relevant waivers—such as the one set forth in the Administrative Procedure Act (“APA”) 58—allow these challenges to be brought in federal court.

States will litigate the claim – they can sue because the fed is asserting sovereign immunity – empirics proveLin 20 [Albert C. Lin; 2020; Professor of Law at University of California, Davis; “Uncooperative Environmental Federalism: State Suits Against the Federal Government in an Age of Political Polarization,” George Washington Law Review, Vol. 88, No. 4, p. 122-123] |Trip|Furthermore, in addition to these challenges to federal actions, states have frequently litigated federal facilities’ asserted sovereign immunity from permit requirements and civil liability under these statutes.141 [Insert Footnote 141] See U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 611 (1992) (holding that federal government had not waived immunity from liability for civil fines imposed by state for past violations of CWA or RCRA); United States v. New Mexico, 32 F.3d 494, 495–96 (10th Cir. 1994) (holding that RCRA waived immunity from certain state imposed permit conditions at federal facility); Maine v. Dep’t of the Navy, 973 F.2d 1007, 1010–11 (1st Cir. 1992) (holding that federal government did not waive sovereign immunity from stateimposed, punitive, civil penalties under RCRA or CERCLA); United States v. Washington , 872 F.2d 874, 875 (9th Cir. 1989) (holding that federal government had not waived immunity from RCRA penalties imposed by state administrative agency); United States v. Pa. Dep’t of Envtl. Res . , 778 F. Supp. 1328, 1332–34 (M.D. Pa. 1991) (holding that CWA and RCRA waived immunity from permit requirements). [Footnote 141 Ends] In sum, the close interaction contemplated by cooperative federalism statutes causes friction and often leads to litigation.

2NC AT: Suit is Ignored Scope of the Plan ensures Litigation – plaintiff’s have standing Lin 20 [Albert C. Lin; 2020; Professor of Law at University of California, Davis; “Uncooperative Environmental Federalism: State Suits Against the Federal Government in an Age of Political Polarization,” George Washington Law Review, Vol. 88, No. 4, p. 125] |Trip|C. Litigation Over National PolicyThe third category of state-federal disputes consists of disagreements over national policy. This category features some of the most high- profile environmental lawsuits in recent years, including battles over federal climate change policy and the scope of the CWA . National policy disputes are not abstract disagreements ; much like the disputes falling within the first two categories, plaintiff-states have real stakes in their outcomes . In contrast to cases in the prior two categories, though, the cases here concern federal policy choices that affect the states in roughly equal ways. This third category is practically equivalent to the concept of “state public-law litigation” that Margaret Lemos and Ernest Young define as state litigation “intended to have a legal and/or political impact that transcends the individual case and the jurisdiction where the action takes place.”155 In contrast to “vertical” conflicts between states and the federal government over intergovernmental distribution of authority—which often feature disputes over the scope of federal power under the Commerce Clause or the Spending Clause—these “horizontal” conflicts pit groups of states against each other, as well as against the federal government, in “fights for the right to control national policy.”156 Although sometimes based on cooperative federalism statutes, state-federal disputes over national policy are categorized as such if the state-federal disagreement centers on national policy choices as opposed to localized applications of cooperative federalism .

The Suit is heard – its appropriate AND states have a ‘magic key’ to the courtroomSchapiro 11 [Robert A. Schapiro; 2011; Internationally recognized Federalism Scholar, Professor and Dean at the University of San Diego School of Law; “Judicial Federalism and the Challenges of State Constitutional Contestation,” Penn State Law Review, Vol. 115, No. 4, p. 984] |Trip|This paper considers the role of states in bringing their disputes with the federal government into court . I wish to examine when it is appropriate for states to subject the national government to judicial supervision . In particular, I will focus on those instances where it appears that the state’s participation is necessary to make a dispute justiciable. States may become involved in litigation with the federal government for a variety of reasons, such as offering litigation support or bringing public attention to the matter. Here, though, I am interested in those situations where the state’s participation is essential to opening the courthouse doors , taking a dispute that otherwise would remain—at least for the moment— outside of judicial cognizance and endowing it with a magic key to the courtroom . Two recent suits have demonstrated the potential importance of states as parties to litigation. In Massachusetts v. EPA in 2007 , the United States Supreme Court considered a challenge to the EPA’s refusal to regulate greenhouse gases.3 Given the diffused and long-term causes and effects of global warming, the standing doctrine served as a significant obstacle to the litigation. Doubts existed about whether the harms would be sufficiently particularized and imminent to satisfy the Court’s constitutional test. In a five-to-four ruling, the Court upheld Massachusetts’ standing, emphasizing the “special solicitude” 4 appropriate to states in the standing analysis. Though the Court’s opinion was not a model of clarity, it suggested that state participation was a necessary condition of justiciability and that a private party might not have satisfied the requirements for standing.

2NC AT: Suit Loses Suit wins by default – Presumption of standing goes to the StatesLin 18 [Elbert Lin; 2/26/2018; Solicitor General of West Virginia from 2013 to 2017; “States Suing the Federal Government: Protecting Liberty or Playing Politics?,” Richmond Law Review, Vol. 52, p. 640] |Trip|Two aspects of the DAPA case bear particular mention. The first is the question of standing. The Fifth Circuit’s ruling, though purportedly “limited” by that court to the “facts” before it, may have far-reaching implications for state-led challenges by Republican and Democratic state attorneys general.48 In holding that Texas had standing to sue, the Fifth Circuit relied on the “ special solicitude ” that the Supreme Court afforded to states in the climate-change-related Clean Air Act challenge in Massachusetts v. EPA. 49 Describing that “special solicitude” as a “presumption” in favor of standing, the Fifth Circuit expressly extended the reasoning of Massachusetts v. EPA to certain lawsuits brought under the APA against federal executive action.50 That holding will undoubtedly be cited by states in future legal actions against the federal government .

States win over water resourcesLin 20 [Albert C. Lin; 2020; Professor of Law at University of California, Davis; “Uncooperative Environmental Federalism: State Suits Against the Federal Government in an Age of Political Polarization,” George Washington Law Review, Vol. 88, No. 4, p. 116-118] |Trip|These recent disputes echo earlier disagreements between the states and the federal government over the ownership, disposition, and management of federal lands. These prior disputes concerned not only claims of title,98 distribution of revenue,99 propriety of federal land exchanges,100 and authority over federal lands,101 but also federal authority over activity on nonfederal lands that threatened the designated purpose of federal lands.102 Numerous disputes have centered on water rights and resources. 103 Furthermore, states, which have primary control and responsibility over wildlife, frequently have clashed with the federal government over the management of animals on both federal104 and nonfederal lands.105Conflicts between states and the federal government over publicly owned resources are unsurprising and frequently manifest in calls for local control . Federal policies ostensibly reflect national interests but may give short shrift to state and local interests in federal resources located within those states. In some instances, national interests in resource development may conflict with state interests in environmental protection. In other instances, national interests in resource conservation may conflict with state preferences for economic development. When both sets of interests cannot be accommodated through political or administrative processes, these conflicts will often wind up in court. Although cases involving such conflicts have yielded a wide range of outcomes, courts generally recognize broad federal authority over public resources under the Property and Supremacy Clauses when state and federal laws conflict.106

Plan exceeds current statutory authority – State win likely – empirics proveLin 18 [Elbert Lin; 2/26/2018; Solicitor General of West Virginia from 2013 to 2017; “States Suing the Federal Government: Protecting Liberty or Playing Politics?,” Richmond Law Review, Vol. 52, p. 638] |Trip|The third major success in the environmental space was the challenge to the Obama Administration Waters of the United States Rule (“WOTUS Rule”). The WOTUS Rule sought to define the phrase “waters of the United States,” which is the scope of federal jurisdiction under the Clean Water Act.35 The acceptable meaning of that phrase has fractured the Supreme Court once before in a 2005 case called Rapanos v. United States that was resolved in a 4-1-4 split.36 Around thirty States and other parties challenged the rule. 37 Among other arguments, the challengers asserted that the United States Army Corps of Engineers and the EPA exceeded their statutory authority under the Clean Water Act, failed to comply with the APA, and violated the United States Constitution.38

Water is States Jurisdiction Fischman 5 [Robert L. Fischman; 2005; Distinguished Professor of Law at the University of Indiana-Bloomington, Adjunct professor at the Indiana University School of Public and Environmental Affairs; "Cooperative Federalism and Natural Resources Law," New York University Environmental Law Journal, Vol. 14, No. 1, p. 183] |Trip|Federalism can be mapped on a continuum defined by the poles of exclusive state power and exclusive national power , as displayed in Figure 1. Though federalism runs the gamut between these limits, actual state-federal relationships in environmental law seldom hit either extreme. Approaching one extreme at the exclusive national power pole are pesticide labeling and defense-generated nuclear waste. On the other side, states generally maintain near-exclusive control over land use regulation, substantive tort law, allocation of property (such as water rights) among private interests, and game hunting on private land.

Losing irrelevant – challenging is sufficient Rosner 17 [Eric Rosner; 2017; Deputy Branch Chief at the Cybersecurity and Infrastructure Security Agency, J.D. from University of Miami; “Cyber Federalism: Defining Cyber’s Jurisdictional Boundaries,” Naval Postgraduate School, p. 6, https://www.hsdl.org/?view&did=808202] |Trip|

However, Yates failed to account for other protections, such as the judicial branch, which allows savvy states to influence federal government policies even when they lack the legal authority to direct federal actions. In Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy, Barak Orbach, Kathleen Callahan, and Lisa Lindemenn argue that states can influence federal policies by challenging them in court.24 Even when states do not win these cases , the mere challenge may put enough political pressure on the federal government to revise unpopular policies.25 The authors contend that “uncooperative federalism,” which is a “set of strategies that uses states’ regulatory powers to challenge the federal government,” allows states to exercise power over federal policymaking, even when armed with limited legal authority.26

2NC AT: Suit Ruling Isolated Rulings are uniform and nationwide.Lin 18 [Elbert Lin; 2/26/2018; Solicitor General of West Virginia from 2013 to 2017; “States Suing the Federal Government: Protecting Liberty or Playing Politics?,” Richmond Law Review, Vol. 52, p. 640] |Trip|The second aspect of DAPA that bears mention is the Fifth Circuit’s affirmance of the nationwide scope of the district court’s injunction.51 The Fifth Circuit rejected the federal government’s request to confine the injunction to Texas or the plaintiff States, reasoning that any order affecting immigration policy must apply uniformly and also that the judicial power includes the power to issue a nationwide injunction “in appropriate circumstances.”52 The Fifth Circuit’s holding in Texas v. United States has already been cited by courts imposing nationwide injunctions against the Trump Administration at the request of Democratic attorneys general,53 and has triggered a vigorous debate among legal practitioners and academics, as well as in the public sphere.54

2NC Theory – General CP’s mechanism of leverage and litigation being done by a coalition of states is grounded in the litOrbach et al. 10 [Barak Y. Orbach; 2010; Professor of Law at the University of Arizona; Kathleen S. Callahan; J.D. from the University of Arizona; Lisa M. Lindemenn; J.D. from the University of Arizona; “Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy,” Arizona Law Review, Vol. 52, p. 1168-1169] |Trip|Uncooperative Federalism Federalism scholarship has examined a variety of measures adopted by states and localities in response to unpopular federal policies.23 States and localities, moving in coalition or unilaterally, may attack federal laws by enacting state declaratory laws or laws that directly conflict with and challenge unpopular federal laws. They also may litigate unpopular federal regulatory choices. The strategy of uncooperative federalism is not owned by any particular side of the political spectrum. States and localities deploy this strategy for causes that may be regarded as liberal, conservative, or politically neutral. For example, amidst concerns regarding racial profiling, invasions of privacy, unreasonable searches, and infringement on free speech, several states and localities adopted resolutions directing their officials not to cooperate with particular requirements of the USA PATRIOT Act signed into law by President Bush on October 26, 2001.24Similarly, after President Bush signed the REAL ID Act of 2005 into law,25 at least thirteen states passed laws or resolutions prohibiting their officials from complying with the Act or declaring that the state would make no appropriation to further the implementation of the Act.26 In Massachusetts v. E.P.A. , 27 twelve states, several localities, and numerous environmental organizations brought suit against the Environmental Protection Agency in an effort to force the agency to regulate greenhouse gas emissions from motor vehicles in compliance with the Clean Air Act.28 In a five-to-four decision, the Supreme Court held that the E.P.A. is authorized to regulate greenhouse gas emissions, rejecting the agency‘s 2003 determination that it had no such authority. 29

Uniformity is real Lin 20 [Albert C. Lin; 2020; Professor of Law at University of California, Davis; “Uncooperative Environmental Federalism: State Suits Against the Federal Government in an Age of Political Polarization,” George Washington Law Review, Vol. 88, No. 4, p. 158] |Trip|Pure federalism disputes—i.e., lawsuits “in which states present a united front in opposition to the federal government” regardless of party affiliation—“ constitute a small and shrinking percentage of [state-federal] conflict[s] .” 374 More commonly, state AGs from one party challenge a national policy issued under a President from the opposing party, with state AGs from the same party as the President intervening in the federal government’s defense.375 Political polarization, congressional gridlock, invigorated executive policymaking, and intertwined state and federal authority collectively explain the increase in state-versus-federal lawsuits over national policy.

The AFF is more unrealistic.Barr 8 [Benjamin Barr; 1/29/2008; Litigator who has fought in front of the Supreme Court, former Constitutional Policy Analyst at the Goldwater Institute; “Muddy Waters: Deconstructing the Clean Water Act in Arizona,” Goldwater Institute Policy Report No. 221, p. 28-29, https://goldwaterinstitute.org/wp-content/uploads/cms_page_media/2015/2/10/Muddy.pdf] |Trip|The principles of limited government require that decentralization be favored as an underlying norm of environmental policy . Under a centralized approach, as embodied in the Clean Water Act, elimination of all water pollution is the stated goal. That goal is unattainable – except through imaginary government fiat. Decentralized approaches permit the attainment of superior environmental policy in a manner that respects liberty, operates most efficiently, and adheres to the varied policy preferences of different communities.

2NC Theory – Leverage Inducing the Fed is grounded in law Fischman 5 [Robert L. Fischman; 2005; Distinguished Professor of Law at the University of Indiana-Bloomington, Adjunct professor at the Indiana University School of Public and Environmental Affairs; "Cooperative Federalism and Natural Resources Law," New York University Environmental Law Journal, Vol. 14, No. 1, p. 205] |Trip|The great value of examining natural resources law in a review of cooperative federalism is to broaden our conceptual understanding. Natural resources programs enrich the discourse of cooperative federalism by illustrating coordination approaches overlooked in pollution control, even if those approaches are seldom recognized as belonging to a common category. Also, a review of the full spectrum indicates a critical predictor of success: effective inducement . The elements of inducement are the tools creating both positive and negative incentives that promote coordination. Challenges to coordination exist where federal and state interests diverge . In those cases, inducements must prompt the governments into cooperative federalism.Usually, the federal government has ultimate authority to make a preemptive determination.' 115 Also, the federal government generally shapes the playing field by defining the tools of inducement. However, situations do occasionally arise where states induce the federal government to cooperate, sometimes after adopting a variety of regimes, which regulated industries seek to preempt with uniform federal legislation. 112

2NC Theory – Lawsuits Environmental Lawsuits being done by increased number of states is predictable and grounded in the litBeienburg 18 [Sean Beienburg; 2018; Assistant Professor in the School of Civic and Economic Thought and Leadership at Arizona State University; “States' Rights Gone Wrong? Secession, Nullification, and Reverse-Nullification in Contemporary America,” Tulsa Law Review, Vol. 53, No. 2, p. 193] |Trip|Federalism on Trial focuses on case studies on prescription drug policy (Chapters Three through Five), environmental issues and greenhouse gas litigation culminating in the 2007 case of Massachusetts v. Environmental Protection Agency12 (Chapters Six through Seven), and a hybrid analytical chapter (Chapter Eight), before finally turning to a brief discussion of the more traditional conservative counter-efforts to block federal policy (Chapter Nine). Although mostly confined in its presentation to an appendix and a few charts interspersed throughout the text, Nolette has assembled an impressive quantitative data set to complement the rich case studies .As this data shows, state AGs no longer serve a primarily defensive role, representing states in lawsuits raised against them. Instead, since the mid-1980s , they have increasingly collaborated on offensive multi-state litigation efforts entailing ever larger groups of states .13 Nearly all of this multistate litigation occurs in one of four broad issue areas: antitrust, consumer protection, health care, and the environment . 14 These are not, Nolette insists, state AGs operating in federal regulatory gaps but instead in political realms which are already heavily regulated, with the AGs jumping in on one side and leaning toward federal overregulation—an ironic result of states’ rights.15Nolette argues that this form of state AG litigation can be “policy-creating,” insofar as it effectively forces corporations to adopt a policy desired by state AGs as the cost of a settlement (as in the case of drug pricing and consumer protection). It can also be “policy-forcing,” requiring the federal government to act in a particular way (as with environmental emissions), largely with statutes featuring decentralized, litigious structures rather than self-enforcement.

Compacts CP

1NC – Compacts CP The states should form an interstate compact to uniformly implement [plan].

The counterplan solves – it provides states individual discretion to enforce uniform standardsNoah D. Hall (Contact Author), 3-13-2006, Professor @ Wayne State Law School. Noah Hall's expertise is in environmental and water law, and his research focuses on issues of environmental governance, federalism, and transboundary pollution and resource management. "Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region by Noah D. Hall :: SSRN," No Publication, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=888603, accessed 7-12-2021 (Kent Denver -- EA)Part I of this article provides a preliminary background on interstate water management compacts as an exercise of horizontal federalism. Interstate compacts are central to the concept of cooperative horizontal federalism, since interstate compacts are the constitutionally permitted mechanism for states to create legal obligations to each other .4 While interstate compacts have been used to address a range of issues, from resolving boundary disputes to establishing penal jurisdiction,5 their potential goes far beyond these applications. Interstate compacts were first used to resolve disputes and establish rights regarding shared water bodies over seventy years ago.6 Historically, the water compacts in place throughout the country have employed two general approaches for managing interstate water resources and regulating water use. The first approach uses compacts to simply divide and allocate the water resource among the individual states with no guidance as to how the states should individually manage their water use.7 The second approach utilizes compacts to create a centralized regulatory authority with management power over the entire watershed.8 The Great Lakes states considered but ultimately rejected both of these existing models, proposing instead the new cooperative approach based on common standards enforced by individual states . While bound by common standards, the states would retain the flexibility to exercise their compact duties in ways best suited to meet their local environmental and economic needs . States can thus tailor their application of the standards to be consistent with their common law, statutory, and regulatory traditions, subject to the programmatic review of collective states. To achieve these goals, the Great Lakes states have created a framework for the cooperative horizontal federalism model.

2NC – Compacts CP The States are the best forum to resolve disputes – the counterplan affords individual states agency over regional mattersNoah D. Hall (Contact Author), 3-13-2006, Professor @ Wayne State Law School. Noah Hall's expertise is in environmental and water law, and his research focuses on issues of environmental governance, federalism, and transboundary pollution and resource management. "Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region by Noah D. Hall :: SSRN," No Publication, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=888603, accessed 7-12-2021 (Kent Denver -- EA)A brief review of the arguments for a strong federal role over the states in environmental protection provides a framework for analyzing the value of the cooperative horizontal federalism model as a third alternative.260 Several factors are commonly cited for supporting federalization of environmental regulation. First, it is argued that federal law is necessary for addressing problems of transboundary pollution and pollution of interstate resources, which cannot be addressed through individual state action.261 It is further argued that in the absence of a federal regulatory program to address transboundary pollution, states will be left to seek redress in the Supreme Court for disputes regarding transboundary and interstate pollution.262 Clearly individual states, acting alone, cannot adequately address transboundary and interstate pollution. States can bring litigation to address these problems in United States Supreme Court, which has original jurisdiction over disputes between the states.263 However, the Court itself has admitted that it is not the ideal forum for addressing transboundary pollution disputes , which tend to involve complex technical and scientific issues with major political and economic ramifications.264 But when faced with a dispute over interstate water resources, the Court has specifically endorsed the interstate compact mechanism as a preferred alternative for more comprehensively addressing the transboundary pollution problem.265 With interstate compacts, transboundary pollution problems are “more likely to be wisely solved by cooperative study and by conference and mutual concession on the part of representatives of the 258. Id. at 1142; see also id. at 1165–71. 259. Id. at 1144–45. 260. It is beyond either the scope or intent of this article to weigh in on the well-argued debate over federal versus state environmental protection. See generally Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the “Race-to-the-Bottom” Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992); Daniel C. Esty, Revitalizing Environmental Federalism, 95 MICH. L. REV. 570 (1996). This article merely suggests the cooperative horizontal federalism model as third alternative in the federal versus state debate. 261. See Percival, supra note 18, at 1171. 262. See id. 263. See Missouri v. Illinois, 200 U.S. 496 (1906); Missouri v. Illinois, 180 U.S. 208 (1901). 264. See New York v. New Jersey, 256 U.S. 296, 313 (1921). 265. See id. Electronic copy available at: https://ssrn.com/abstract=888603 450 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 77 States so vitally interested in it than by proceedings in any court however constituted.”266 Transboundary pollution problems can certainly be addressed through federal legislation,267 but congressional action may not be an ideal solution for several reasons. First, the states involved in the dispute, like private parties in litigation, are in the best position to evaluate the strengths and weaknesses of various potential resolutions to the dispute. Second, in many cases Congress will not want to get involved in the dispute, leaving the states to craft a solution on their own. Finally, for transboundary pollution problems that only affect a regional resource, congressional representatives from other regions have no accountability to the citizens being harmed. A second justification for federal regulation is that it is necessary to ensure minimum levels of protection and consistent standards.268 This is beneficial not only for preventing states from “racing to the bottom,” but also to give industry the benefit of interstate consistency and to take advantage of regulatory economies of scale.269 While most western interstate water compacts, which allocate a shared resource with no standards,270 fail to address this issue, it is the central strength of the cooperative horizontal federalism model. Cooperative horizontal federalism provides minimum standards to prevent a race of laxity among competing states and give regulated industries the benefit of consistency and economies of scale for compliance costs across the region. The standards are only minimums and allow states flexibility in their application , but if this is a weakness, it is a weakness shared by most federal cooperative environmental programs.271 While both the cooperative horizontal federalism model and the dominant cooperative vertical federalism model create minimum standards to avoid a race of laxity and provide consistent compliance requirements, cooperative horizontal federalism allows those standards to be tailored to the unique needs of a region or specific natural resource . Some consistency in environmental protection standards is desirable, but uniform federal standards often fail to recognize the unique needs of a 266. Id. 267. The federal Clean Air Act prohibits emission activity in one state that contributes significantly to other states’ noncompliance with air quality standards. See 42 U.S.C. §§ 7410(a)(2)(D)(i), 7426 (2000). 268. See Percival, supra note 18, at 1171. But see Revesz, supra note 260 (disputing

the race-to-the bottom rationale for federal environmental regulation). 269. See Percival, supra note 18, at 1171–72. 270. See Colorado River Compact, supra note 6; Rio Grande Compact, supra note 7. 271. See Percival, supra note 18, at 1142, 1144. Electronic copy available at: https://ssrn.com/abstract=888603 2006] TOWARD A NEW HORIZONTAL FEDERALISM 451 region.272 Cooperative horizontal federalism allows a balance between the need for consistent standards and the recognition that environmental needs vary by region.

2NC – Compacts – AT: Congress Strikedown Congress won’t strike down the counterplan – legislative inertia kills their desireMatthew Pincus. (2009) J.D. Columbia Law School. "When should interstate compacts require congressional consent." Colum. JL & Soc. Probs. 42: 511. https://heinonline.org/HOL/LandingPage?handle=hein.journals/collsp42&div=23&id=&page=, accessed 7-12-2021 (Kent Denver -- EA)Thus, the institutional bias against taking action is a deliberate and important facet of the federal constitutional structure. When interstate compacts of wide impact are allowed to come into force, this “legislative inertia” has an unintended effect: the same forces that typically prevent congressional action exert pressure to let the compact remain in place. It is true that, because interstate compacts inevitably involve interstate concerns, branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. Id. 116. U.S. CONST. art. I, § 7. 117. Bennet, supra note 114, at 869. 118. Redish & Nugent, supra note 111, at 592–93. 119. Bennet, supra note 114, at 866. 120. Id. File: 02Pincus.42.4.doc Created on: 4/22/2009 5:09:00 PM Last Printed: 4/23/2009 6:06:00 PM 534 Columbia Journal of Law and Social Problems [42:511 Congress is almost always able to override any compact it wishes, either explicitly (through legislation) or by preempting the field in which the compact operates.121 Any such legislation, however, must pass through both houses and survive any possible veto by the president. Thus, legislative inertia makes it more difficult for Congress to pass a law voiding an interstate compact than to refuse to approve one. As a result, passing an interstate compact effectively enhances the power of the enacting states, while diminishing that of Congress.122 Although the same could be said for the enactment of any state law in an area where Congress and the states share authority, what makes interstate compacts different is that they inherently involve relations between the states and coordinated action among them. Interstate compacts have the potential — as demonstrated by the NPV — to have much broader impact on the country as a whole than uncoordinated actions by individual states.

Interstate compacts do not require congressional approval Matthew Pincus. (2009) J.D. Columbia Law School. "When should interstate compacts require congressional consent." Colum. JL & Soc. Probs. 42: 511. https://heinonline.org/HOL/LandingPage?handle=hein.journals/collsp42&div=23&id=&page=, accessed 7-12-2021 (Kent Denver -- EA)The last few years have seen ambitious efforts to utilize interstate compacts to address particularly tough national issues . In the environmental arena , the Regional Greenhouse Gas Initiative (“RGGI”), which came into effect in September of 2008,41 originated as a response to federal inaction in the face of rising greenhouse gas levels.42 The RGGI obliges signatory states to implement a cap and trade arrangement for carbon dioxide emissions from power plants. States will freeze emissions at approximately current levels and reduce them over the following decade while allowing power plants to trade emissions credits among themselves.43 Currently, ten states have joined the RGGI.44 It seems likely that, under the current U.S. Steel test, the RGGI would not be found to require congressional approval . 45 The interstate compact that has generated the most publicity over the last few years is the National Popular Vote (“NPV”) compact. Originating in suggestions by Robert W. Bennett,46 as well as by Akhil Reed Amar and Vikram David Amar,47 this proposal was explicitly presented as an alternative to Constitutional 40. Star Sci., Inc. v. Beales, 278 F.3d 339 (4th Cir. 2002); see also Shital A. Patel, The Tobacco Litigation Merry-Go-Round: Did The MSA Make It Stop?, 8 DEPAUL J. HEALTH CARE L. 615, 636 (2005). 41. Felicity Barringer & Katie Galbraith, States Aim to Cut Gases by Making Polluters Pay, N.Y. TIMES, Sept. 15, 2008, at A17, available at http://www.nytimes.com/2008/ 09/16/us/16carbon.html. 42. Michael S. Smith, Note, Murky Precedent Meets Hazy Air: The Compact Clause and the Regional Greenhouse Gas Initiative, 34 B.C. ENVTL. AFF. L. REV 387 (2007); Claire Carothers, Note, United We Stand: The Interstate Compact as a Tool for Effecting Climate Change, 41 GA. L. REV. 229, 259 (2006); see also The Regional Greenhouse Gas Initiative (RGGI) CO2 Budget Trading Program — Welcome, http://www.rggi.org/about.htm (last visited Apr. 10, 2009). 43. Smith, supra note 42, at 405. 44. See The Regional Greenhouse Gas Initiative (RGGI) CO2 Budget Trading Program – Participating States, http://www.rggi.org/states (last visited Apr. 10, 2009). 45. Smith, supra note 42, at 411. 46. Robert W. Bennett, Popular Election of the President Without a Constitutional Amendment, 4 GREEN BAG 2d 241 (2001). 47. Akhil Reed Amar & Vikram David Amar, How to Achieve Direct National Election of the President Without Amending the Constitution, FINDLAW.COM, Dec. 28, 2001, available at http://writ.news.findlaw.com/amar/20011228.html. File: 02Pincus.42.4.doc Created on: 4/22/2009 5:09:00 PM Last Printed: 4/23/2009 6:06:00 PM 2009] Interstate Compacts 521 amendment through the process outlined in Article V.48

The motivating force behind the compact is dissatisfaction with the current method of electing a president, particularly with the way the Electoral College system disincentivizes candidates from collecting votes in states that are either clearly sympathetic or obviously hostile.49 Because of the impossibility of changing this system through legislation, and because of the significant hurdles involved in enacting a constitutional amendment, the compact presents a feasible way to achieve an otherwise impossible result. The NPV’s proponents emphasize that Congressional consent is not required for the compact to be found valid by the courts.50 If backers of the compact needed to secure its validation in Congress, which they could not accomplish simply by securing support of the legislatures of a handful of populous states, the compact would represent a less attractive way to effect change. As of January 5, 2009, the NPV compact was signed into law in four states, Hawaii, Illinois, New Jersey and Maryland,51 and had been approved by both houses of the Michigan, Rhode Island and Massachusetts legislatures.52 Both the RGGI and the NPV compacts exploit the slackness of the U.S. Steel test in order to transform the interstate compact from a device for addressing local issues into an alternative to federal legislation. Both proposals are attractive to their proponents precisely because they are viewed as free from the requirement of congressional assent . Supporters attempt to utilize the interstate compact device in a way that appears pretextual and designed to accomplish goals that they think they would be unable to accomplish by constitutional amendment or by federal legislation.

2NC – Compacts – AT: Court Strikedown The Court won’t strike down the compact – they won’t find a threat to federal supremacyHarvard Law Review, 2007, " The Compact Clause and the Regional Greenhouse Gas Initiative," Harvard Law Review, https://harvardlawreview.org/wp-content/uploads/pdfs/the_compact_clause.pdf, accessed 7-13-2021 (Kent Denver--EA)First, RGGI might be thought to encroach upon federal supremacy because of the federal government’s undeniable interest in climate policy. In U.S. Steel, however, the Supreme Court was careful to distinguish the presence of federal interests from a threat to federal supremacy . 38 In the absence of federal action preempting state regulation, the states are free to pursue policies in an area that implicates federal interests. No federal statute regulates greenhouse gases as such39 or expressly prohibits the states from acting in this area. In short, there is no supreme federal law for the RGGI states’ actions to encroach upon. Even if RGGI were found to be in conflict with a federal climate policy, such a decision would not necessarily rest on Compact Clause grounds because climate change regulation by individual states would likely be preempted as well. It might also be suggested that the RGGI states have impermissibly enlarged their political influence over matters of national climate change policy by acting in concert. The Court dismissed a similar concern in U.S. Steel. There, the dissent contended that the MTC increased the political influence of the member states by organizing a group of states to oppose federal action in the field.40 The Court responded: “We may assume that there is strength in numbers and organization. But enhanced capacity to lobby within the federal legislative process falls far short of threatened ‘encroach[ment] upon or interfer[ence] with the just supremacy of the United States.’ Federal power in the relevant areas remains plenary . . . .”41 If the MTC — an explicit effort to avert federal legislation42 — was not worrisome in this regard, RGGI is even less so. The RGGI states are not attempting to prevent federal action on climate change (in fact, they would welcome it), and it is unclear what kind of political leverage vis-à-vis the federal government the RGGI states could obtain from membership.43 38 Id. at 479 n.33. 39 The Supreme Court recently ruled that the EPA has authority under the Clean Air Act to regulate greenhouse gas emissions from motor vehicles. Massachusetts v. EPA, No. 05-1120, slip op. at 25–30 (Apr. 2, 2007). The EPA must now determine whether greenhouse gas emissions from vehicles meet the Clean Air Act’s endangerment standard. Id. at 32. 40 See U.S. Steel, 434 U.S. at 480 n.33. 41 Id. (alteration in original) (quoting Virginia v. Tennessee, 148 U.S. 504, 519 (1893)). 42 Id. at 487 (White, J., dissenting). 43 RGGI might influence the course of an eventual federal program by serving as a modelfrom which lessons can be drawn. States, of course, have long been serving as “laboratories” of democracy. The states also might obtain increased influence vis-à-vis the regulated industries, but the U.S. Steel Court made clear that “the test is whether the Compact enhances state power quoad the National Government.” Id. at 473 (majority opinion). 1964 HARVARD LAW REVIEW [Vol. 120:1958 In addition, RGGI might be thought to limit the policy options of the federal government regarding climate change. The Court in U.S. Steel emphasized that the MTC would not foreclose any path of action to the federal government.44 Likewise, RGGI would not hinder the federal government’s adoption of any domestic climate policy . The MOU indicates the RGGI states’ intention to transition to a federal program should one arise.45 Even without the states’ cooperation, federal law could preempt further state action. At most, RGGI’s history of regulation might complicate the emissions baseline used to calculate each regulated entity’s required reductions in a federal program because entities regulated by RGGI would want credit for reductions they had already made under that program. RGGI reductions, however, would not be different in kind from other types of early reductions that the federal government would likely recognize.46 Further, because of the implications of climate change for global politics, RGGI might be accused of interfering with the federal government’s management of foreign affairs. State law is preempted when it clearly conflicts with an “express foreign policy of the National Government.”47 The United States has opted not to join the Kyoto Protocol,48 but the RGGI states have not implemented the Kyoto Protocol on their own. Beyond opposition to the Kyoto Protocol, a foreign policy on climate change is difficult to discern.49 Even if U.S. policy were understood as opposition to any binding national emission reductions, it does not necessarily follow that state reductions would be in clear conflict with that policy. Even if RGGI is not in conflict with a current foreign policy, one could argue that RGGI might interfere with a future foreign policy. The federal government has asserted in a different context that domestic reductions of greenhouse gas emissions could weaken the bargaining position of the United States in international climate negotiations.50 44 Id. at 480 n.33. 45 See MOU, supra note 7, § 6(C). 46 The federal government in fact has a system in place for documenting voluntary reductions, run by the Energy Information Administration. See Energy Policy Act of 1992, Pub. L. No. 102- 486, § 1605(b), 106 Stat. 2776, 3002–03 (codified at 42 U.S.C. § 13385(b) (2000)). 47 Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 420 (2003). 48 Press Release, President George W. Bush, President Bush Discusses Global

Climate Change (June 11, 2001), http://www.whitehouse.gov/news/releases/2001/06/20010611-2.html. 49 For a discussion of conflicting indications of U.S. foreign policy on climate change, see Note, Foreign Affairs Preemption and State Regulation of Greenhouse Gas Emissions, 119 HARV. L. REV. 1877, 1884–89 (2006). 50 The EPA denied a petition to regulate greenhouse gas emissions from motor vehicles partially on this ground. See Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,929 (Sept. 8, 2003). A coalition of automobile dealers has also suggested that California’s attempt to limit greenhouse gas emissions from motor vehicles would “undercut the 2007] THE COMPACT CLAUSE AND RGGI 1965 The idea is that if states make emission reductions, developing nations might prefer to free-ride on those reductions rather than reduce their own emissions.51 However, the effect of unilateral U.S. reductions is far from clear,52 and it is difficult to square this argument with the Bush Administration’s professed commitment to pursuing voluntary emission reductions.53 Still, even if action taken by the RGGI states were found to impede federal policy at either the domestic or international level, the Compact Clause would not provide an independent ground for invalidating the regulation , since an individual state program would have the same potential for interference. Finally, RGGI might be said to pose a threat to federal control over interstate commerce. RGGI does not currently threaten federal control over commerce, but a problem could arise if someday RGGI takes steps to prevent what is known as “leakage.” Because neighboring states on the same electric grid are not adopting emissions caps, electricity in those states will not carry the cost of carbon reductions. If the price impact causes load-serving entities in the RGGI states to import more electricity from non-RGGI states, some of the emission reduction benefits of RGGI will be lost. The RGGI states recognize this problem and are studying possible solutions.54 Almost any solution adopted, however, would necessarily restrict electricity imports, which could interfere with interstate commerce in violation of the dormant commerce clause.55 But if leakage control measures were found to violate the dormant commerce clause, the Compact Clause would not be an independent ground for invalidating the measures. Again, any interference with federal supremacy would arise not from the interstate cooperation but from the effect of the regulation itself.

The Supreme Court validated interstate compacts without Congressional approval Joseph F. Zimmerman, No Date, Professor of Political Science @ Rockefeller College State University of New York at Albany" PRELIMINARY REPORT OF THE ATTORNEYS GENERAL OF CALIFORNIA, MINNESOTA, MISSOURI, AND OKLAHOMA ON THE PROPOSED INTERSTATE INSURANCE PRODUCT REGULATION COMPACT: A CRITIQUE," No Publication, https://www.ncsl.org/documents/insur/zimmerman.pdf, accessed 7-13-2021 (Kent Denver--EA)IS CONGRESSIONAL CONSENT REQUIRED? Section 10 of Article I of the United States Constitution contains an important stipulation: “No State shall, without the consent of Congress, enter into any Agreement or Compact with another State.” In consequence, there was a general assumption for decades that all interstate compacts enacted into law by the legislatures of two or more sister States are invalid in the absence of the consent of Congress. In 1893, however, the United States Supreme Court in Virginia v. Tennessee ruled congressional consent was mandatory only for a compact tending to increase “the political power and influence” of the party states and to encroach “upon the full and free exercise of federal authority” [138 U.S. 503 at 520, 13 S.Ct. 728 at 735-36 (1893)]. The author(s) of the Preliminary Report correctly note the United States Supreme Court in United States Steel Corporation v. Multistate Tax Commission in 1978 held the Multistate Tax Compact was constitutional despite the lack of congressional consent. The Court specifically opined the Compact does not “authorize the member states to exercise any powers they could not exercise in its absence” [434 U.S. 452 at 473, 98 S.Ct. 799 at 812-13 (1978)].

2NC – Compacts – AT: Preemption Won’t get preemptedJacob Finkel, 2019, Jacob Finkel was a Bradley Fellow at the Stanford Constitutional Law Center before serving as a law clerk on the U.S. Court of Appeals " Stranger in the Land of Federalism: A Defense of the Compact Clause," Stanford Law Review, https://review.law.stanford.edu/wp-content/uploads/sites/3/2019/06/Finkel-71-Stan.-L.-Rev.-1575.pdf, accessed 7-15-2021 (Kent Denver -- EA)Negative field preemption in concept Negative field preemption of a compact is based upon a relatively straightforward inquiry: Is the compact intended to supplant congressional action in the same field? The edifices of the compact must be so pervasive as to make reasonable the inference that the compacting states have left no room for Congress to supplement it.210 Applying this to compacts means focusing not on204. See Pennsylvania v. Nelson, 350 U.S. 497, 502 (1956) (quoting Hines, 312 U.S. at 67). 205. It is worth adding that the European Court of Justice has adopted a similar doctrine. See Anne van Aaken, Supremacy and Preemption: A View from Europe, in FEDERAL PREEMPTION, supra note 188, at 277, 296. This helps illustrate the importance of such exclusive competence for supranational governmental systems. 206. See Hines, 312 U.S. at 69-74; see also Alien Registration Act, 1940, Pub. L. No. 76-670, 54 Stat. 670 (codified as amended at 18 U.S.C. §§ 2385, 2387 (2017)). 207. Hines, 312 U.S. at 72 n.34 (quoting 86 CONG. REC. 8345 (1940) (statement of Sen. Connally)). 208. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 209. See Richard A. Epstein & Michael S. Greve, Conclusion: Preemption Doctrine and Its Limits, in FEDERAL PREEMPTION,supra note 188, at 309, 336. 210. This field preemption concept was applied with the opposite orientation—that is, with federal action leaving no opportunity for state regulation in a given field—by the Supreme Court in Rice v. Santa Fe Elevator Corp. See 331 U.S. at 230. Stranger in the Land of Federalism 71 STAN. L.REV. 1575 (2019) 1610the functional merits of a compact, but upon the extent to which it intends to offer a cohesive solution within a policy sphere. In other words, rather than examining the effects or structure of a compact—as functional and categorical tests, respectively, would have us do—negative field preemption looks purely at the intent behind the compact’s creation. It determines, as a court would before finding implied field preemption, whether the compact is designed to fully supplant congressional action.211 If so, Congress would have to provide its assent in accord with the Compact Clause. The reworking of field preemption doctrine into the compact arena makes intrinsic sense, as the two fields have converging, if not mirroring, rationales: the increasingly interwoven federalism implications of many policy issues and the inability of states (in the preemption context) and the federal government (for compacts) to address these concerns.212 In other words, with preemption the federal government decides that the states cannot act effectively in a given field, while with a nationally effective compact (such as the tobacco MSA), the states make the same judgment about Washington. Thus, the utility of this approach is twofold. First, it allows the vast majority of necessary and fruitful compacts—border and water use agreements to govern spillover commons, for example—to be enacted without the looming shadow of congressional interference, enabling the commonsense intuition of most observers since Virginia v. Tennessee that there must exist a large body of useful compacts “to which the United States can have no possible objection or have any interest in interfering with.”213 Second, it focuses precisely on the most relevant horizontal and vertical harms identified in Part II above. Namely, states detaching themselves from the national firmament to enact their own private policy preferences via compact—potentially permitting powerful minorities, or narrow majorities, to conduct an end run around the Constitution and harness congressional inertia to their own advantage.

AFF Answers

2AC – Generic Solvency USFG is better and more efficient than states, states abide by usfg and don’t act uniformlyLowrey 17 – Annie Lowrey, staff writer at The Atlantic, where she covers economic policy, “Are States Really More Efficient Than the Federal Government?” October 2, 2017, https://www.theatlantic.com/business/archive/2017/10/graham-cassidy-states-federal-efficiency/541599/

But there is little evidence that the states are more efficient administrators than Washington is, and some evidence that they might be less so. “The basic argument for state efficiency is based more on hopes and prayers than on clear evidence, across the board,” said Don Kettl, a professor of public policy at the University of Maryland. Delegating programs to the states would likely result in greater disparities in what programs offer and slimmer budgets overall, more than any radical improvements in efficiency. As a general point, Kettl and other political scientists agree, despite its reputation for bureaucracy and incompetence, the federal government runs pretty well, and where it runs poorly it tends to be stifled by outdated rules and regulations. “The underlying argument is that the federal government is unwieldy and inefficient,” said Kettl. “That’s not true.” Take the Social Security Administration, as slender and effective a bureaucracy as exists on earth. The

organization makes monthly payments to 61 million beneficiaries, with a low error rate and overhead well below 1 percent of costs. Similarly, the Internal Revenue Service is a ruthlessly effective tax collector, when compared to those in other high-income countries and to the states. California spends 94 cents on overhead for every $100 of state tax revenue collected, for instance, with Great Britain spending 74 cents. The feds, on the other hand, spend less than 50 cents. Moreover, the federal bureaucracy functions with more oversight—powerful inspectors general, Congressional budget hawks and committee chairs, and the press sniffing around—than statehouses do, helping to reduce graft. That said, it is not easy to compare the state and federal governments in terms of efficiency. For one, they tend to do different things, with federal dollars primarily spent on Social Security, health-insurance programs, and the military, and state dollars spent on education, health, transportation, prisons, and a variety of other priorities. “There are some types of things that state governments are good at handling, and other things the federal government is good at handling,” said Jason Sorens, the program director of the Political

Economy Project at Dartmouth College. “There are some kinds of fiscal relationships between the federal and state governments that are more efficient than others, but that’s not the same thing as

saying that states are more efficient than the federal government.” Making them even harder to compare is the fact that states are often spending federal dollars and complying with federal regulations, blurring the line between state and national initiatives. “The federal government is like a giant

ATM,” said Elaine Kamarck, the director of the Center for Effective Public Management at the Brookings Institution. “Scratch any state or local program and you’ll find federal money. This is why everyone’s decided government shutdowns are a real disaster. The two times it happens, everybody realizes it’s not just the national park that closes—it’s Catholic Charities and the drug treatment center down the road.

Feds manage water better than states – state regulated waters several times more toxic on averageBirdsall and Fowler 20 (Luke, Associate Professor in Public Policy and Administration and Director of the MPA program at Boise State University. Chris, Assistant Professor of Public Administration in the School of Public Service at Boise State University. 5-5-20 “Does the Primacy System Work? State versus Federal Implementation of the Clean Water Act “ Publius: The Journal of Federalism, Volume 51, Issue 1 pp. 17-18 JO)Figure 5 indicates that while reported toxic releases in Maine are approximately four times more than what would be expected under EPA primacy, toxic releases in South Dakota are approximately 40 times higher . This suggests that

although both states are struggling, South Dakota’s Department of Environment and Natural Resources (SDDENR) is grappling with much more intense issues than Maine’s Department of Environmental Protection (MDEP). In general, SRF assessments suggest MDEP has a strong program in many areas, but is falling short of national guidelines when determining non-compliance violations and calculating enforce-ment penalties, as well as with data collection and management. Although compliance determinations and enforcement actions tend to be responsive to toxic releases rather than preventive, a lack of strictness or consistency in these regards is likely to contribute to a culture of lax compliance, where facilities may adopt environmental management norms that contribute to increased toxic releases overtime. These issues could be partially explained by a degree of bureaucratic capture in that MDEP may lack the resources (including political capital) to defend itself against pushback from regulated facilities (i.e., threats of lawsuits), so managers may be willing to acquiesce in order to avoid conflict. However, EPA largely commends MDEP for “excellent jobs” or “highly effective” in several areas (EPA2015, 1)

On the other hand, SRF assessments point to more systematic issues in South Dakota. For instance, EPA determine that “current staff levels make it difficult to keep up with expectations for the number of inspections expected by EPA...Inherent in this process is the need to focus on ‘wins’ in terms of bringing enforcement actions forward where there is a clear impairment/violation recognized” (EPA 2014, 14–15). In other words, enforcement action is only likely when cases are clear and egregious; otherwise, the process of taking such action is likely not

worth the effort for staff. This may be due to the rather onerous process of pursuing enforcement activities. While

MDEP can unilaterally pursue enforcement actions that are later enforceable by the Attorney General, any SDDENR enforcement activities are routed through the Attorney General’s office for a legal review before the Secretary can officially approve them. These additional organizational layers likely create transaction costs in the enforcement process as well as potential conflicts as agendas diverge, especially as agencies with separate missions attempt to coordinate efforts (Waterman and Meier 1998). This may partially explain EPA’s finding that SDDENR struggles to follow its Enforcement Response Guidance when determining and responding to non-compliance cases.As previous research indicates that Maine tends to be among the most environmentally conscious states both nationally and regionally, program managers likely experience pressure from elected officials or the public when it comes to environmental conditions. On the other hand, since South Dakota tends to be at the bottom of states in terms of pro-environmental public attitudes both nationally and regionally, environmental protection is likely a low priority, so SDDENR has little political capital to push back against industry (Lester 1995;Mazur and Welch1999;Fowler 2016). In both cases, this may indicate that primacy has led to a degree of bureaucratic capture. Given regional economies and natural resource amenities in both states, Maine likely finds that protecting the environment creates a potential quality of life draw from Northeast urban areas, while South Dakota likely sees an advantage in attracting resource extraction and heavy industry with lax environmental enforcement. In other words, although administrative capacity is an issue in both states, there may be more political advantage and willingness in Maine to enforce water quality regulations than in South Dakota. However, our data and expectations are not wholly consistent in that they do not account for the one-time spike in the year of primacy for Maine, which could be a result of changes in administration or reporting requirements, or errors in our statistical modeling. Unfortunately, data limitations do not allow us to tease this apart.

States fail – bureaucratic capture undermines enforcement due to lack of political capitalFowler & Birdsall ’20 (Luke, Associate Professor in Public Policy and Administration and Director of the MPA program at Boise State University, Chris, Assistant Professor of Public Administration in the School of Public Service at Boise State University “Does the Primacy System Work? State versus Federal Implementation of the Clean Water Act” Winter 2020 Publius: The Journal of Federalism, Volume 51, Issue 1, https://academic.oup.com/publius/article-abstract/51/1/131/5830831?redirectedFrom=fulltext//AF)Figure 5 indicates that while reported toxic releases in Maine are approximately four times more than what would be expected under EPA primacy, toxic releases in South Dakota are approximately 40 times higher. This suggests that although both states are struggling, South Dakota’s Department of Environment and Natural Resources (SDDENR) is grappling with much more intense issues than Maine’s Department of Environmental Protection (MDEP). In general, SRF assessments suggest MDEP has a strong program in many areas, but is falling short of national guidelines when determining non-compliance violations and calculating enforcement penalties, as well as with data collection and management. Although compliance determinations and enforcement actions tend to be responsive to toxic releases rather than preventive, a lack of strictness or consistency in these regards is likely to contribute to a culture of lax compliance, where facilities may adopt environmental management norms that contribute to increased toxic releases over time. These issues could be partially explained by a degree of bureaucratic capture in that MDEP may lack the resources (including political capital) to defend itself against pushback from regulated facilities (i.e., threats of lawsuits), so managers may be willing to acquiesce in order to avoid conflict. However, EPA largely commends MDEP for “excellent jobs” or “highly effective” in several areas (EPA 2015, 1). On the other hand, SRF assessments point to more systematic issues in South Dakota. For instance, EPA determine that “current staff levels make it difficult to keep up with expectations for the number of inspections expected by EPA...Inherent in this process is the need to focus on ‘wins’ in terms of bringing enforcement actions forward where there is a clear impairment/violation recognized” (EPA 2014, 14–15). In other words, enforcement action is only likely when cases

are clear and egregious; otherwise, the process of taking such action is likely not worth the effort for staff. This may be due to the rather

onerous process of pursuing enforcement activities. While MDEP can unilaterally pursue enforcement actions that are later enforceable by the Attorney General, any

SDDENR enforcement activities are routed through the Attorney General’s office for a legal review before the Secretary can officially approve them. These additional organizational layers likely create transaction costs in the enforcement process as well as potential conflicts as agendas diverge, especially as agencies with separate missions attempt to coordinate efforts (Waterman and Meier 1998). This may partially explain EPA’s finding that SDDENR struggles to

follow its Enforcement Response Guidance when determining and responding to non-compliance cases. As previous research indicates that Maine tends to be among the most environmentally conscious states both nationally and regionally, program managers likely experience pressure from elected officials or the public when it comes to environmental conditions. On the other hand, since South Dakota tends to be at the bottom of states in terms of pro-environmental public attitudes both nationally and regionally, environmental protection is likely a low priority, so SDDENR has little political capital to push back against industry (Lester 1995; Mazur and Welch 1999; Fowler 2016). In both cases, this may

indicate that primacy has led to a degree of bureaucratic capture. Given regional economies and natural resource amenities in both states, Maine likely finds that protecting the environment creates a potential quality of life draw from Northeast urban areas, while South Dakota likely sees an advantage in attracting resource extraction and heavy industry with lax environmental enforcement. In

other words, although administrative capacity is an issue in both states, there may be more political advantage and willingness in Maine to enforce water quality regulations than in South Dakota.

Some federal oversight is necessary to prevent a race to the bottomFiorino & Weted ’21 (Daniel, Director at the Center for Environmental Policy at American University, Carley, doctoral student in the Department of Public Administration and Policy at American University, Environmental Federalism in a Polarized Era 1-8-2021 State and Local Government Review Vol 52 Issue 2 https://journals.sagepub.com/doi/abs/10.1177/0160323X20986225//AF)A central justification for a federal role in environmental policy is pollution spillovers (Millimet 2014). Air and water pollution cross state lines, and many common property resources extend beyond political boundaries. In water policy, the Chesapeake Bay, Great Lakes, and Missouri River exemplify such spillovers. An entirely state-centered system would be c umbersome, costly, and ineffective. Take air quality as an example: Much of the ozone and particulate pollution on the East Coast can be traced to origins in Appalachia and the Midwest. This causes issues when states like Maryland and New Jersey cannot meet the National Ambient Air Quality Standards if the federal EPA does not require controls on pollution from other states. A second argument for a federal role is concern over a “race to the bottom,” where “states compete for economic growth by enticing industry with less stringent—and less costly— regulations” (Potoski 2001, 335; Rabe 2019). Research finds evidence of a race-to-thebottom in federal rules and oversight (Konisky and Woods 2012; Sjoberg and Xu 2018) and in enforcing surface mining regulation (Woods 2006). Still, there is conflicting evidence. States may exceed federal standards if voters and activists prefer it (Potoski 2001), and “for some states, regulatory behavior in competitor states pulls their own regulatory efforts up, not down”

(Konisky 2007, 868). Studies of state enforcement of federally delegated programs find limited evidence of a race-to-the- bottom, but this is with f ederal rules and oversight (Konisky and Woods 2012; Sjoberg and Xu 2018). Research has found evidence of strategic interaction leading to less enforcement effort in surface mining regulation when regional competitor states were less stringent, supporting a race-to-the-bottom thesis (Woods 2006). A study of air, water, and hazardous waste programs (all with a substantial federal presence) found evidence that states reduced enforcement in response to laxity by other states but increased their efforts when competitors were tougher: “for some states, regulatory behavior in competitor states pulls their own regulatory efforts up, not down” (Konisky 2007, 868). Federalism may minimize pressure for laxity while, in some conditions, encouraging a race-to-the top, leading to a “California Effect” that can enhance standards overall (Vogel 1995).

2AC – Preemption SCOTUS will strike down the counterplan on dormant Commerce Clause groundsNoah D. Hall (Contact Author), 3-13-2006, Professor @ Wayne State Law School. Noah Hall's expertise is in environmental and water law, and his research focuses on issues of environmental governance, federalism, and transboundary pollution and resource management. "Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region by Noah D. Hall :: SSRN," No Publication, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=888603, accessed 7-12-2021 (Kent Denver -- EA)Using an interstate compact and a cooperative horizontal federalism approach to environmental protection removes the Commerce Clause constraints on environmental protection policy and the uncertainty of the Supreme Court’s evolving jurisprudence on the issue. The Commerce Clause empowers Congress “[t]o regulate Commerce . . . among the several States.”273 The federal government has relied on this power to address numerous environmental problems, including the regulation of water pollution and the filling of wetlands. However, the Supreme Court’s 2001 decision in Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers274 establishes that this power is not without limits. Congress clearly has the power to regulate the waters of the Great Lakes as interstate navigable bodies, but its jurisdiction over the waters of an isolated wetland is less certain. Ecologically, a comprehensive water272. See generally Revesz, supra note 260. 273. U.S. CONST. art. I, § 8, cl. 3. 274. 531 U.S. 159 (2001). 452 UNIVERSITY OF COLORADO LAW REVIEW [Vol. 77management policy for all waters (regardless of jurisdiction) is ideal, but the limits of Congress’ Commerce Clause power may curb the federal government’s ability to enact such a policy. Instead of relying on the limited Commerce Clause for regulatory authority, states can rely on their broad police powers to regulate water resources.275 Yet the Commerce Clause creates a different hurdle to state water policy. The states’ broad regulatory powers over their waters are limited by the “dormant” commerce clause doctrine, which prevents states from unreasonably restricting interstate commerce . This doctrine could limit the ability of a state to control or restrict the export of its water. In Sporhase v. Nebraska ex rel. Douglas, 276 the Supreme Court held that ground water was an article of interstate commerce and that a Nebraska statute restricting the export of ground water from the state was unconstitutional.277 Thus, states acting alone may be limited in their ability to restrict the export of water. However, congressional approval of a compact eliminates the concern over a dormant commerce clause challenge to state water policy , since any affect on interstate commerce has been sanctioned by the federal government.

2AC – Preemption – AT: Congress Consent Interstate Compacts get preempted even with Congressional consentMarlissa S. Briggett, 1991, editor for Boston College Environmental Affairs Law Review and J.D. as of 2021 " State Supremacy in the Federal Realm: The Interstate Compact," Boston College Environmental Affairs Law Review, https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1517&context=ealr, accessed 7-15-2021 (Kent Denver -- EA)A. Significance of an Interstate CompactThe most significant aspect of an interstate compact is that congressional consent transforms the compact into federal law. 144 Upon congressional consent, the interstate compact provides a vehicle for the states to exercise power that is otherwise barred by 133 See id. at 271. 134 See id. 135 [d. at 272. 136 [d. 137 See id. at 273. 138 [d. 139 [d. 140 [d. 141 See supra notes 54-86 and accompanying text. 142 See supra notes 87-118 and accompanying text. 143 See supra notes 119-24 and accompanying text. 144 See supra notes 100-118 and accompanying text. 766 ENVIRONMENTAL AFFAIRS [Vol. 18:751federal preemption. 145 In United States Steel Corporation v. Multistate Tax Commission,146 the Court concluded that congressional consent was unnecessary because the compact did not authorize states to exercise powers they could not have exercised in its absence. 147 The corollary is that consent is necessary when the compact does authorize states to exercise powers they could not have exercised otherwise. This conclusion implies that with congressional consent, the states' sphere of power is increased. Yet, the states have never used an interstate compact explicitly to circumvent existing federal regulations. There does not seem to be any obstacle, however, to using the interstate compact in this manner. When the compact becomes federal law upon congressional consent, the new federal law supersedes prior federal law just as any other new federal law would.Unfortunately, subsequent congressional legislation similarly can preempt the interstate compact. 148 There is arguably no check on Congress's ability to render the regulations of a regional compact agency void. 149 The threat of subsequent legislation may represent a disincentive to the states involved in an interstate agreement to commit money, time, and resources to a regional agency whose authority is so completely dependent on Congress. 145 Intake Water Co. v. Yellowstone River Compact, 590 F. Supp. 293, 297 (D. Mont. 1983). 146 434 U.S. 452 (1978). 147 [d. at 473. 148 See Riverside Irrigation Dist. v. Andrews, 568 F. Supp. 583, 589-90 (D. Colo. 1983) (congressional approval of interstate compact relating to certain navigable waterways did not limit congressional authority thereafter to enact the Clean Water Act, even though the Act was inconsistent with the compact). 149 One writer presents the theory that Congress is bound by principles of quasi-contract, supported by dicta in early cases. See White, The Emerging Relationship Between Environmental Regulations and Colorado Water Law, 53 U. COLO. L. REV. 597, 630 (1982). The generally accepted view, however, is that "[ilt would arguably be inconsistent with the intent of the Framers of the Constitution if congressional approval were construed as limiting, rather than preserving, federal powers." [d. at 631.

Without Congressional Approval the Counterplan Lacks an Enforcement Mechanism and failsCHRISTOPHER H. MEYER, 2010, Chris has been a leader in the fields of water law, planning and zoning law, constitutional law, and road and public access law. He has extensive litigation experience at the administrative, district court and appellate levels (including 21 Idaho Supreme Court cases). Best Lawyers in America has named him “Lawyer of the Year” seven times in the fields of land use, water, and natural resources. "INTERSTATE WATER ALLOCATION: THE LAW AND ITS IMPLICATIONS FOR THE PACIFIC NORTHWEST," No Publication, https://idwr.idaho.gov/files/iwrb/2010/20100507-Rathdrum-Prairie-CAMP-Interstate-Water-Allocation.pdf, accessed 7-15-2021 (Kent Denver -- EA)Compacts An interstate compact is an agreement by two or more states that has been approved by Congress for the purpose of allocating the rights to the use of a natural resource such as water among the compacting states. The federal Constitution tacitly authorizes such agreements between states: “No State, shall without the Consent of Congress , . . . compact with another State, or with a foreign Power . . . .”18Typically, Congress invites the states to initiate negotiations, with the expectation that whatever accommodation is achieved will receive subsequent congressional approval. Upon approval by Congress a compact becomes a law of the United States.19 Thereafter, the compacting states act to incorporate the terms of the compact into their respective state laws. This dual codification aids in the enforcement of the compact’s terms. The federal codification ensures that states cannot back out, and eliminates any potential for a dormant commerce clause attack on the

allocation. State codification ensures that every affected individual water user will be subject to the benefits and burdens of the compact. Compacts are typically implemented though the creation of administrative compact commissions. These compact commissions “create political institutions that help break down barriers that have prevented more effective water management” and have been described as “the greatest contribution to interstate water resource management.”20 18 U.S. Const. art. I, § 10, cl. 3. 19 Texas v. New Mexico, 462 U.S. 554 (l983). 20 Karl Erhardt, The Battle Over “The Hooch”: The Federal-Interstate Water Compact and the Resolution of Rights in the Chattahoochee River, 11 Stan. Envtl. L. J. 200, 216 (1992).

2AC – AT: Decentralization Good Federal level action is important for innovation it can also be a laboratory for democracy Owen and Wiseman 2018 (Dave, Professor of Law, University of California — Hastings College of Law, J.D, Hannah J, University of California, Berkeley School of Law, B.A., Amherst College, “Federal Laboratories of Democracy” December 2018, UC Davis Law Review, Volume 52, No. 2, https://lawreview.law.ucdavis.edu/issues/52/2/Articles/52-2_Wiseman_Owen.pdf // JK ) An oft-cited justification for federalism is that it induces creative policy experimentation at the state level.1 According to the standard arguments,

limiting federal power and protecting state sovereignty allow states to function as "laboratories of democracy," places where governmental innovations can begin and spread. 2 For courts and federalism scholars, this alleged virtue has remained alluring for decades, and celebrations of state policy laboratories remain a central theme in the discourse of federalism.3 Similarly, much of the literature on policy experimentation tends to assume, if it confronts questions of federalism at all, that states (and sometimes local government) will be the experimenters.4 Yet there are many reasons to be skeptical of these accounts. While no one disputes that state and local governments sometimes do innovate, a variety of characteristics of state and local governments make it unlikely that they will experiment nearly as often as traditional federalism theory would assume.5 Even when they do experiment, other state and local government characteristics may hinder good policies' paths to wider adoption. 6 Consequently, if we value policy laboratories, then it is important to consider how other elements of our federalist system can enable policy experimentation or something closer to that ideal. This endeavor is particularly valuable in an era of political upheaval and growing calls for massive reduction in federal governmental "interference." 7 If states are not the optimal experimenters, then broad-based shrinkage of federal involvement could reverse critical policy experimentation, thus undermining a virtue often used to justify state power. 8 This Article responds to the challenge of constructing useful policy laboratories and the inadequacies of traditional theories through closer attention to the intersections of experimentation and federalism. We craft a conceptual framework to fuse key attributes of policy experimentation with the United States' federalist system. We then flesh out this framework and demonstrate its analytical capacity by discussing several real-world policy initiatives. The governance structures for the policy initiatives we describe are all quite different from the stereotypical "laborator[ies] of the states." They also are directly at odds with the popular myth that "the central government can examine only one policy at a time and so will slowly uncover superior new policy choices." 9 Instead, these experiments involve the federal government in both designing and implementing experiments, sometimes without much help from the states, and sometimes relying on state and local entities to cooperate in experiments facilitated by the federal government.10 Our core thesis is that these governance structures for experimentation are not anomalous. In a federalist system of hierarchical and decentralized governance, a key driver of experimentation often will, and should, be the federal government. "

Furthermore, federal initiatives sometimes incorporate attributes that make policy experimentation surprisingly rigorouS

12 - far more rigorous than the haphazard patchwork of state policies that arise from the decentralized experimentation envisioned by most federalism proponents . Our primary case study, which has attracted scant attention in the legal literature, explores ambitious experiments in U.S. agricultural policy that evolved over nearly a century. The

experiments began with a federally-designed and federally-implemented approach. The federal government used congressionally-approved funding to employ a true boots-on-the-ground system for modifying crop management practices that contributed to massive dust storms and loss of valuable topsoil. The United States Department of Agriculture sent federal agents to farflung rural

locations to build experimental research stations that tested and demonstrated improved soil conservation techniques to farmers.13 The federal government also enlisted the Civilian Conservation Corps to implement these techniques around the country, with approaches that varied by region.14 The scientific elements of this program were thoroughly intertwined with policy experimentation.

Federal on-theground learning extended to political and social questions, like determining how to achieve farmer buy-in once effective techniques had

been identified.1 5 Further, these efforts informed the development of agency policies and laws. These early federal initiatives have since morphed into a complex federal-state-local program that involves rigorous experimentation, including clear standards for agricultural conservation policies, sophisticated approaches for measuring the results of federally-supported conservation practices, and hundreds of scientific papers reporting on results and suggesting how conservation practices could improve.16

2AC – CAFOs Several states have already successfully imposed their own regulations on CAFOsEmily A. Kolbe '13 - J.D. Candidate, The University of Iowa College of Law, 2014; B.A., Grinnell College, 2007 [Emily A. Kolbe; ; xx-xx-2013; "“Won’t You Be My Neighbor?” Living with Concentrated Animal Feeding Operations"; Iowa Law Review; https://ilr.law.uiowa.edu/print/volume-99-issue/wont-you-be-my-neighbor-living-with-concentrated-animal-feeding-operations/; accessed 7-15-2021 (nBrown)]As concerns grow about the negative effects of CAFOs on the environment, human health, and animal welfare, several state legislatures have moved to restrict the growth of CAFOs .  In Indiana and Ohio, the legislatures proposed moratoriums on new CAFO construction . Indiana’s bill, however, never made it out of committee and Ohio’s is “currently stalled [in] the Senate Agriculture Committee.” Following a series of disastrous manure spills, North Carolina implemented a moratorium on CAFO construction in 1997, a ban that was renewed periodically until the legislature allowed it to expire in 2007. The ban was not entirely effective, however, as it contained several loopholes that resulted in some additional CAFOs being constructed. Based on the fact that these bills often seem to simply disappear in the legislature, placing moratoria on CAFO construction does not appear to be a method of managing the effects of CAFOs that legislators are willing to embrace—at least not yet.Other states have taken more limited measures to effectively regulate CAFOs.  For example, Missouri has enacted slightly more stringent permit thresholds for poultry operations in an effort to protect water quality.  New York offers voluntary programs that purport to “help farm operations meet their business objectives while also protecting the purity and availability of the water supplies.” Michigan created a similar voluntary program where CAFO owners agreed to follow “Generally Accepted Agricultural Management Practices.” The benefits to CAFO owners participating in voluntary programs are more than improving their environmental stewardship and receiving corresponding goodwill—compliance with these types of programs may shield CAFOs from potential nuisance actions. South Carolina, until recently, had one of the strictest regulatory frameworks for CAFOs in the country . “All owners and operators of [animal feeding operations] must apply for and receive a permit from the South Carolina Department of Health and Environmental Control.”

 This permit application requirement was slightly unusual because the size of the operation was irrelevant—every CAFO had to obtain a permit .  South Carolina also required “a minimum 100-foot vegetative buffer” around manure lagoons or ponds that were located near surface water and imposed distance requirements for such facilities of “500 feet from drinking water wells and one quarter of a mile from surface waters.”

 The state also required that anyone planning to “construct or expand an [animal feeding operation] in South Carolina must publish a notice of intent to do so in a local newspaper and notify adjoining landowners and relevant county and water supply district managers.”

 Following notice, the South Carolina Department of Health and Environmental Control would hold a public hearing when it received twenty or more requests. Additionally, and perhaps most importantly, South Carolina’s CAFOs were inspected annually, and the owners were responsible for monitoring groundwater. This past year, however, the South Carolina legislature repealed the act governing CAFO regulations, replacing it with a statute that appears to give more control over regulations to the legislature than to the South Carolina Department of Health and Environmental Control. The strong history of regulating CAFOs in South Carolina, however, imports valuable information for those in other states looking for possible solutions. The above state actions are all in addition to the EPA’s required regulations. Iowans can look to these types of controls to examine how CAFOs could be more efficiently regulated in this state. However, the issue with these state approaches to CAFO regulation and enforcement is that it requires the cooperation of state legislators and the ability of the IDNR to enforce the measures, which is lacking at this time.

State permitting requirements regulate CAFOs Missouri Department of Natural Resources 'No Date [Missouri Department of Natural Resources; ; xx-xx-xxxx; "Concentrated Animal Feeding Operations"; No Publication; https://dnr.mo.gov/env/wpp/cafo/; accessed 7-15-2021 (nBrown)]At the state level, water quality is protected through the department’s permit application and approval process, as well as the permit conditions for operation.  Water pollution operating permits are a requirement for all size and types of regulated CAFOs.  Construction permits are required for CAFOs with earthen basins, but all regulated CAFOs must be built in accordance with the design standards in 10 CSR 20-8.300. The operating permits typically have a list of very specific and stringent

requirements to follow and operations are expected to keep detailed records of farm related activities and submit them to the state agency for review each year.  In addition, the Missouri Department of Natural Resources has developed stringent state technical standards that CAFOs must follow and relate to the handling and land application of animal manure.

Permits are just one way states can manage CAFOsClaudia Copeland '10 - Specialist in Resources and Environmental Policy [Claudia Copeland; ; 02-16-2010; "Animal Waste and Water Quality: EPA Regulation of Concentrated Animal Feeding Operations (CAFOs)"; Congressional Research Service; https://nationalaglawcenter.org/wp-content/uploads/assets/crs/RL31851.pdf; accessed 7-15-2021 (nBrown)]Since NPDES permits are the CWA vehicle for implementing the CAFO rules, and states carry out most NPDES permit activities , the nature and scope of state programs for regulating feedlots is an important consideration in evaluating overall effectiveness of current efforts. An EPA compendium of state programs for managing animal feedlots illustrates the variations and complexity of state activities.12 According to EPA, state regulation of AFOs and CAFOs often involves both federal and state laws and regulations and several different state-level agencies, with numerous variations in approaches, requirements, and jurisdiction. Forty-five states are authorized by EPA to implement the base NPDES program to regulate CAFOs. As of 2002, seven states regulated CAFOs exclusively under this authority, while 32 states administered a state NPDES CAFO program in combination with some other state permit, license, or authorization, such as a construction or operating permit. Six states, while generally authorized to implement the NPDES program, had chosen to regulate CAFOs under separate state non- NPDES programs . Further, five states were not authorized to administer the NPDES program, and EPA retained responsibility to issue

CAFO permits. In three of these states, EPA permits were the sole CAFO regulation, and the other two imposed some form of non-NPDES program requirement, in addition to the federally-issued permit. Substantively, state programs varied widely in defining what is a CAFO (hence, the scope of the regulatory program), permit conditions and siting requirements, details for waste management plans (if required), and enforcement procedures. Because of the wide variability, it was difficult to say whether the glass was “half-full” or “halfempty” with regard to the adequacy of state regulatory activities. EPA concluded that state non-NPDES AFO programs are often more stringent than NPDES programs and often extended coverage to smaller classes of facilities . Further, according to EPA, the implementation of state non-NPDES programs often received more state agency attention than implementation of NPDES programs , with several states actively choosing not to use NPDES permits. However, the GAO found inconsistent and inadequate implementation of CWA requirements by states that had been authorized to administer CAFO permitting. Permits did not meet all EPA requirements, and several states evaluated by GAO did not issue any type of permit to CAFOs, thereby leaving facilities and their wastes essentially unregulated.13 In revised CAFO rules proposed in December 2000 (discussed below), EPA said that the number of non-NPDES permits issued to AFOs greatly exceeded the number of NPDES permits issued—by nearly 20 times. Many would not meet the standards for approval as NPDES permits, EPA said, and because they were not NPDES permits, none met the requirement for federal enforceability.14

EPA’s CAFO regulations are weak and burden statesNational Sustainable Agriculture Coalition '12 [National Sustainable Agriculture Coalition; ; 7-18-2012; "EPA Ducks Responsibility to Gather Information on CAFOs"; ; https://sustainableagriculture.net/blog/cafo-reporting-rule-withdrawn/; accessed 7-15-2021 (nBrown)]The U.S. Environmental Protection Agency (EPA) has announced   that it is withdrawing a proposed Clean Water Act regulation that would have required Concentrated Animal Feeding Operations (CAFOs) to report basic information to EPA.  The information is necessary to ensure that CAFOs properly handle their waste to avoid water pollution.When Congress enacted the Clean Water in 1972, it specifically included CAFOs as point sources of pollution subject to regulation under the Act.  Despite that fact, in a  2008 report the U.S. Government Accountability Office concluded that no federal agency, including the EPA, had consistent, reliable data on CAFOs.  The Report noted that EPA did not even have accurate information on the number of permitted CAFOs nationwide.EPA proposed the reporting regulation as part of settlement with environmental plaintiffs in the lawsuit National Pork Producers Council v. EPA.  The agency is authorized to collect the information under Section 308 of the Clean Water Act. Environmental groups fought for the reporting regulation rule because the very weak 2008 CAFO permit rule does not require all CAFOs to obtain a Clean Water Act permit.  In addition, the CAFO permit rule has large gaps that leave tons of CAFO manure and other waste unregulated.  The biggest many flaws is that waste applied on land that is not under the control of the CAFO operator is not subject to the permit’s nutrient management plan.  In addition, EPA omitted from the permit controls over land application of heavy metals, antibiotics, pathogens, growth hormones, and other substances commonly found in CAFO waste. EPA’s proposed regulation was already very weak, with EPA proposing to require CAFOs to submit information on only five out of fourteen items addressed in the settlement, including:Type of facility;Number and type(s) of animals;Whether the CAFO land applies CAFO waste;Available acreage for land application; and

Whether the CAFO has a NPDES permit.EPA proposed to omit the following information request by the environmental plaintiffs:Name and address of the owner and operator;If a contract operation, the name of the vertical integrator;Location (longitude and latitude) of the operation;Type and capacity of manure storage;Quantity of manure, process wastewater and litter generated by the CAFO;If the CAFO land applies, whether it implements a nutrient management plan for land application;If the CAFO land applies, whether it employs nutrient management practices and keeps records on site consistent with the CAFO permit regulations;If the CAFO does not land apply, alternative uses of manure, litter, and/or wastewater; andWhether the CAFO transfers manure off-site, and if so, quantity transferred to recipients of transferred manure.In addition, EPA wanted to collect the information only in “focus watersheds” which are already known to have water quality degraded by CAFO pollution.  This approach would ignore watersheds where sources of pollution were not known and watersheds where inadequate CAFO waste handling could cause future impairments.In this week’s notice that EPA was withdrawing the reporting rule altogether, the agency concluded that it could rely on information on CAFOs from the states and other sources.  This conclusion, however, is belied by numerous reports and statements from EPA regions and state regulators.For example, this month EPA Region 7 released a report on a preliminary investigation of the Clean Water Act permit program in Iowa that severely criticized the state program.  EPA prepared the report in response to a petition submitted by the Iowa Citizens for Community Improvement, the Sierra Club, and the Environmental Integrity Program asking that EPA withdraw the authority granted to the state because of Iowa’s failure to adequately implement and enforce Clean Water Act requirements.  The EPA report concluded, among other problems, that Iowa had failed to conduct comprehensive inspections to determine if unpermitted CAFOs required Clean Water Act permits.  In addition, EPA found that land application setbacks were not sufficient and were not included in CAFO nutrient management plans.In Wisconsin, an official with the Wisconsin Department of Natural Resources stated that gathering information such as land application of manure on individual farms and ensuring that it is up to date would be a significant burden to the state.  He noted that the state would gladly provide the EPA with the information it has on CAFOs, but does not want to gather additional information.  In Indiana, state inspectors inspect once every five years an estimated 1,600 operations.  Three inspector positions are vacant.  It is clear that these states and others are not doing a sufficient job of overseeing CAFOs.The CAFO sector’s opposition to the reporting requirement focused on the fact that information gathered by EPA under Section 308 of the Clean Water Act is made available to the public.  This public access could give communities and rural residents better information about CAFOs as a source of water pollution, allowing them to take actions to protect water resources under the citizen suit provisions of the Clean Water Act.  By declining to use its full powers to gather information from CAFOs, the EPA is putting blinders on itself and denying the public access to critical information about CAFO pollution.   This action continues a long sad history of EPA ducking its clear responsibility to ensure that CAFOs are adequately regulated under the Clean Water Act.

Fed key – current state efforts fail due to lack of enforcement incentives and transparency Secchi & Mcdonald ’19 (Silvia, Associate Professor at the University of Iowa in the Department of Geographical and Sustainable Science studying Environmental Impacts of Agriculture, Water Sustainability, Floodplain Policy and Conservation Policy, & Moira, director of the Environment Program at the Walton Family Foundation, “The state of water quality strategies in the Mississippi River Basin: Is cooperative federalism working?”, 8-10-19, Science of the Total Environment Vol 677 Issue 10, https://www.sciencedirect.com/science/article/pii/S0048969719319266//AF)Our results indicate that there has been little additional funding for pollution reduction after the Stoner memo was issued. It is also clear that several states have not diligently reported on their progress according to the memo's guidance, and the development of Numeric Nutrient Criteria is stalled. More troubling from a scientific perspective, it is also apparent that the prioritization process was not transparent and replicable for the great majority of the states. Even when the prioritization was based on scientific models, it is not clear that the best available information was used. For example, four states used the SPARROW model. According to a recent study, “[t]he strength of SPARROW's statistical approach is the inclusion of a diversity of estimated loads at differing stream orders and local conditions. This complements the strengths of [process-based] SWAT and APEX models […]. These models are typically calibrated to less measured data, but their very detailed process-based nature allows accuracy to be maintained beyond the calibration conditions. The strength of this process-based approach lies in the ability of these models to simulate a variety of “what if” scenarios more robustly (White et al., 2014)”. Thus, while the SPARROW model may be well suited for the prioritization of watersheds, other tools are needed to take the next steps to prioritize Best Management Practices (BMPs) within watershed. Several spatially explicit process models exist for multiple watersheds. For example, the SWAT/HUMUS (Soil and Water Assessment Tool/Hydrologic Unit Model of the United States) model results from the Conservation Effectiveness Assessment Project (CEAP) are available for all the 8 digit HUCs of the 12 states. However, none of the NRS used this approach. In terms of the treatment of the agricultural sector, the general lack of attention to animal agriculture in general, and CAFOs in particular, is concerning, given their clustering, their growing significance, and their direct and indirect effects on pollution in the MARB (Jones et al., 2018; Li et al., 2013; MacDonald and McBride, 2009; Robertson and Saad, 2011, 2013; van Grinsven et al., 2015). Further, because of the synergies between crop and animal production, livestock production is concentrated in areas with intensive crop production, thereby creating hotspots (Jones et al., 2018; Robertson and Saad, 2013). A recent study found, for example, that more efficient use of manure could have significant benefits in reducing the use of synthetic fertilizers in the Corn Belt (Metson et al., 2016). This would have a double benefit as it would impact nutrient losses from inappropriately applied manure and synthetic fertilizers. CAFOs are theoretically point sources and as such would be required to obtain a National Pollutant Discharge Elimination System (NPDES) permit under the CWA (Kolbe, 2013), but recent court cases have substantially reduced federal regulatory oversight on CAFOs. Under the current court-sanctioned interpretation of the CWA, CAFOs require a permit only after they discharge, effectively creating a federal regulatory vacuum which has not been counterbalanced by state actions (Braunig, 2005). This lack of transparency at both the state and federal levels effectively hinders the capacity to assess sources and track progress and is as a key impediment to a true assessment. The fact that none of the 12 strategies includes plans or discussions on further activities related to CAFOs besides current regulations is a critical policy gap. A careful analysis of the potential for reduction in nutrient losses from CAFOs is in order. In terms of reporting, there is wide variability across the states. In Iowa and to some extent Illinois, the NRS and associated follow up activities are the focus of the nutrient reduction efforts, while in other states like Minnesota and Wisconsin NRS' associated reporting and funding have been at least in part subsumed (and were preceded) by other state level initiatives. In

some states, such as Kentucky and Indiana, the NRS appears to be just a document produced in response to the Stoner memo without follow up. This wide disparity in approaches has occurred in other environmental arenas where the federal government has been unable or unwilling to harmonize regulatory approaches and associated reporting requirements. This is evident, for example, in the regulation of carbon in California and New England (Boasson and Huitema, 2017), and in the development and implementation of statelevel Renewable Portfolio Standards (Barbose et al., 2016; North Carolina Clean Energy Technology Center, 2018). Notably, the strategies tend to focus on the costs and not the benefits of the efforts to be undertaken. Twenty years ago, the hypoxia action plan identified benefits of reducing nutrient loss to the Gulf of Mexico (Doering et al., 1999). Since then, there has been work done on portions of the watershed, such as a recent report that focused on Iowa, which estimated a lower bound on the value of two types of benefits: reduction in costs of treatment for public water supply systems and private well owners, and recreation benefits (specifically due to reduction in beach closures) (Tang et al., 2018). However, watershed-wide assessment of upstream benefits has not been undertaken. Identifying the areas with largest benefits and monetizing them would be a critical component of a truly targeted, science-based approach. This would allow for integrated modeling that includes cost-benefit-analysis of alternatives (Secchi, 2013), and increased local buy-in of residents in states affected by nutrient pollution. Without estimates of these benefits, the implicit assumption is that there are only costs to the strategies upstream and benefits downstream. This is particularly important in the voluntary

conservation paradigm that relies on incentives rather than regulation to improve environmental outcomes. Without a sense of the total potential benefits, state and local governments, public utilities and other stakeholders cannot assess the value of those improved outcomes. Estimates of environmental benefits of pollution abatement would also provide clean water advocates a robust tool to use in seeking additional funding and action. Ultimately, the success of nutrient strategies will have to be measured by improvements in water quality across the MARB and in reducing the hypoxic zone in the Gulf of Mexico. It is obviously too early at this point to determine the efficacy of the strategies in achieving the goal of the Hypoxia Action plan. The strategies' impacts are likely to take time to fully manifest themselves, and weather and other covariates are likely to add noise to the process. Further complicating estimates, in 2016 there was no data collected due to mechanical problems to the ship used for the measurements. However, we note that the first two strategies were published over five years ago (though Iowa has updated its document multiple times), and the size of the dead zone remains vastly larger than the Action plan goal (Scavia et al., 2017). Further, our analysis shows that there have been no significant additional resources and activities being implemented across the 12 states since the Stoner memo's issuance. It is important to contrast this to the approach taken by the EPA in another major hypoxic zone in the US, the Chesapeake Bay. Indeed, a 2007 National Academy of Science report suggested that the EPA and the MARB states could learn from the experience of the Chesapeake Bay (National Research Council, 2008). In the Bay, the EPA mandated the development of a nutrient TMDL which allocated part of the load to non-point sources. The 2010 Chesapeake Bay TMDL survived legal challenges from agricultural interests all the way up to the supreme court (Aiken, 2017). Because of the lack of authority of the federal government in regulating non-point source pollution, the TMDL has had limited impact on meeting water quality objectives from the agricultural allocation of the load (Stephenson and Shabman, 2017), though it has spurred innovations in how to structure water quality markets in the Bay (Shortle et al., 2013). Perhaps more importantly in the long term, the TMDL has created the potential for further federal interventions if the loads are not met via the “reasonable assurance” mechanism (Aiken, 2017).

Essentially, if the states do not remedy non-point source pollution, the EPA can force the point sources to over-abate to so that the load is met. There is evidence that the fundamental problem in the Bay is the nutrient imbalance caused by the large number of livestock in the watershed, and the associate manure production (Beegle, 2013), though wastewater and forest areas are also major contributors of nutrients (Shenk and Linker, 2013). Some of the livestock operations producing manure are CAFOs and thus, theoretically, point sources. In the Mississippi River watershed, such a federal backstop would have to be either initiated by EPA (which would imply an acknowledgement of the failure of the current approach on the part of the agency), or forced upon the EPA through litigation, which could be driven by the concerns of some of the states. Given the wide discretion the courts have given EPA in addressing nutrient reductions in the MARB in recent lawsuits (Mumby, 2017), this outcome does not appear likely. 5. Conclusions Broadly

speaking, the lackluster progress of the NRS-state led approach outlined here, and the loose oversight that EPA is exercising in meeting the Stoner memo criteria are significant indicators of the lack of ex post program evaluation in environmental policy (Harrington et al., 2004), which today seems to be largely left to the courts. Further, the lack of coordination in initiatives across the watershed (with the exception of the MRBI) shows the continued abandonment of a holistic watershed approach (Cooter, 2004). Overall, due to lack of targeting and scientific basis for the watershed prioritization, omission of CAFOs in the strategies, lack of understanding of the spatio-temporal patterns of benefits, poor implementation, and insufficient additional resources, it is apparent that the current crop of strategies is not being effective at improving water quality in the watershed and in the Gulf of Mexico. In some states such as Minnesota, the strategies and the process preceding their development have created or added impetus to state-level activities to address NPS pollution, but in others, such as Kentucky,

they have not spurred any meaningful efforts. Thus, for the basin as a whole, the current approach is not working . A recent development illustrates how the states are largely stalling, and ignoring science in the process. In early 2019, the Iowa Environmental Protection Commission (EPC) denied the petition brought forth by environmental organizations to implement Numeric Nutrient Criteria for recreational lakes, on the basis that the proposed criteria lack a scientific rationale, though the criteria were based on a 2008 recommendation from a well-known and respected group of experts from all state universities and the Department of Natural Resources. If NNCs have become so contentious they are being ignored, more fundamental reconsideration of the current approach may be necessary.

2AC – Perm do Both Perm solves bestSteve Cohen '18 [Steve Cohen; ; 7-16-2018; "The State and Local Role in Protecting America’s Environment"; State of the Planet; https://news.climate.columbia.edu/2018/07/16/state-local-role-protecting-americas-environment/; accessed 7-12-2021 (nBrown)]Due to its power, media attention, and symbolic importance, we pay a great deal of attention to the federal   Environmental Protection Agency   (EPA). EPA plays an important and unique role in keeping our environment clean, although most of the heavy lifting in American environmental protection is done by state and local governments. EPA sets policy, subsidizes state and local programs, oversees states, and conducts scientific research, but state and local governments do the day-to-day work of environmental protection. A quick look at a few numbers may provide perspective. The U.S. EPA has a staff of about 15,000 people and an annual budget of $8 billion. The New York State Department of Environmental Conservation has a staff of 3,000 and a budget of $1.4 billion. New York City’s Department of Environmental Protection spends about $1.5 billion a year and has a staff of 6,000. And there are 49 other states and thousands of local governments in America. When writing about this issue last year, I reported on the results of a study published by the Environmental Council of the States and observed that:“According to their report, state environmental agency funding rose from $12.2 billion in 2013 to $14.9 billion in 2015. But most of that increase was in California where the budget grew from $2.9 billion to $4.9 billion. With California excluded, state funding only went up from $9.3 billion in 2013 to $10.0 billion in 2015. Federal support for states other than California during this part of the Obama administration dropped by 3 percent from $2,557,856,937 in 2013 to $2,493,785,970 in 2015. Remember that the Obama Administration was not immune to the right-wing attack on environmental regulation that has dominated the budget making process for years. EPA lost 1,600 staff during the Obama years.”  State funding was greater than federal funding and did not always include all the costs of environmental protection, many of which are funded locally and by state agencies not called “environmental.” One of the most expensive state and local services is water supply, followed by sewage treatment. These are organized differently by different states, cities and counties, and so comparisons across states and localities are not always straightforward. For example, New York City’s Water Board controls an annual budget of about $3.8 billion, and about $1.4 of the city’s annual $1.5 billion environmental protection budget comes from the water authority. Almost $1.8 billion of the $3.8 billion Water Board budget is debt service that pays the costs of the bonds used to build the city’s extensive water infrastructure system. The revenues for the system come from water bills paid by property owners in New York City.Functions such as water supply, sewage treatment, and garbage disposal are non-optional, critical environmental services typically performed by America’s local governments. People expect these services to be performed, but also recognize that rules and regulations are required to ensure that people don’t dump their garbage in the streets or release toxics into our water supply. Environmental protection is not simply regulations that tell businesses what they need to do to avoid damage to the planet, but rules to ensure that effective environmental services can be provided to residents and businesses everywhere. Businesses in many cities are required to pay for garbage removal by highly regulated waste haulers. Rules on property upkeep, sidewalk cleanliness and disposal of hazardous materials are set and enforced by local governments.It is unfortunate that ideologues have painted environmental regulation as the enemy of the free market, or capitalism as the enemy of the environmental protection. We like the wealth and lifestyle made possible through free enterprise, but we also like to breathe. Why should these two goals be seen as incompatible? We have already demonstrated they are complementary. The economies of America, Western Europe and Japan have grown over the past half century as we have applied technology to make our air and water cleaner. Environmental protection is not cheap, but the benefits are far greater than the costs. We can and should do more, and we can do it without harming the economy.The U.S. EPA is shrinking at the very time we need it to increase its capacity to understand and govern the nation’s environment. But despite that distressing fact, the fundamental environmental functions performed by state, county and city governments will continue to grow. They are growing because our population is growing along with our knowledge of the health effects of pollution–and because we expect government to protect us from knowable dangers. We may not always know what’s in our food or water, but when we see people getting sick, or when we find out that a slow acting toxic like lead is in our water, we demand government act to protect us. Governors, mayors, and county executives get this, and until recently, so did presidents.

Despite the centrality of government’s environmental functions, the federal EPA is routinely and reflexively attacked by the Republican right wing. We saw this in recent Republican primary battles. As Louis Jacobson reported in Politifact this past April:“The Environmental Protection Agency is not very popular among West Virginia Republicans, who see the agency as threatening the state’s mining jobs through overregulation — at least until President Donald Trump took office. So, during an April 23 debate between Republican primary candidates for a U.S. Senate seat, it was not surprising to hear the agency criticized. One of the candidates, U.S. Rep. Evan Jenkins, boasted about his efforts to rein in the agency. “I’ve cut a half a billion (dollars) out of the EPA just in the last two years. We’ve cut 3,000 jobs out of the EPA,” he said. (It’s around 29:30 in the video.)”It turned out that Jenkins was right about the money, but overstated the staff cuts. But the odd part is the assumption that cutting an environmental agency is an accomplishment worth bragging about. In the end it didn’t help him much since Jenkins lost his senate primary to West Virginia Attorney General Patrick Morrisey, with 29 percent of the vote to Morrisey’s 35 percent.Environmental politics at the national level was once governed by cooperation and consensus. In 1972, support for cleaning up America’s water was so strong that Congress enacted the Federal Water Pollution Control Act over the veto of then-President Richard Nixon. The Superfund toxic waste clean-up law was passed in December of 1980 following a deal between southern conservative Senator Jesse Helms and northeastern liberal Congressman Jim Florio. In the 1970s and 1980s, the federal government played the lead role in developing the institutions we needed to protect our environment. While a functioning federal legislative branch seems an artifact of the twentieth century, support for a clean environment remains strong today.While some state governments such as California’s and New York’s have the size and technical competence to provide environmental governance, many others do not. The lead contamination of Flint, Michigan’s water systems should have been prevented by EPA’s Region V office or Michigan’s Department of Environmental Quality. The cost of providing clean water today is much higher than it would have been if the lead contamination had never happened. Many states struggle to ensure adequate water, sewage and solid waste services. Still, recognizing its small resource base, for decades the federal EPA has actively delegated its regulatory authority to states. This is not new. No one wants to pay the costs of a clean environment. But nature is unforgiving. You either pay to prevent the poison from being released into our ecosystems or pay the much higher price of cleaning it up later.America is a more crowded place than it once was. We have more people, cars, consumption, and waste. Our waste stream is more toxic and less biodegradable than it was in 1950. Without rules and adequate infrastructure, our communities will become less healthy places to live. State and local governments have no choice but keep our waste out of the ocean and poison out of our water supply. The political pressure to assure a clean environment ramps up every time an environmental health danger is identified and understood. An efficient, equitable and cost-effective way to deliver environmental protection requires a technically competent and well-led federal presence, working alongside active and well-trained state and local partners. We are heading in the opposite direction now. To the extent it can, the vacuum created by a feeble EPA will be filled by states, communities, and corporations.

2AC – Perm do Both – Coop Federalism The perm invigorates a model of cooperative federalism which solves bestRoger Hanshaw '17 [Roger Hanshaw; ; xx-xx-2016; "State courts vs. federal courts: jurisdictional battles over state water quality standards"; American Bar Association; https://go-gale-com.proxy.library.georgetown.edu/ps/i.do?p=LT&u=gtown_law&id=GALE|A497178465&v=2.1&it=r; accessed 7-13-2021 (nBrown)]Since Congress adopted the Federal Water Pollution Control Act (Clean Water Act or CWA) in 1972 (33 U.S.C. [section] 1251-1387 (2012)), state and federal enforcement actions, along with citizen suits by private parties brought under the CWA, have done much to improve the quality of the nation's waters. A key feature of the CWA is the system of cooperative federalism whereby states may voluntarily assume responsibility for enforcement of water   pollution   control laws under federally approved state programs. In order to exercise the primary jurisdiction for enforcement of water quality laws within its boundaries, a state must adopt a water quality permitting program and submit that program to the U.S. Environmental Protection Agency (EPA) for approval. After federal approval, the state environmental permitting and enforcement agency administers the federally approved program within the state's borders with oversight from EPA. In order to gain federal approval, a state water quality program must have standards that are at least as stringent as those required by the federal government, but,

importantly, a state may adopt a water quality program that is more stringent than required by federal law . When states choose to voluntarily demand greater protection for their waters than required by federal law, does the CWA still apply? And if it does, how far does the CWA authorize federal courts to go with respect to enforcing state-level standards?Over 20 states have elected to develop their own state water quality programs and enforce the CWA at the state level. In these states, state water quality standards, and not the otherwise-applicable federal standards, are the typical basis for enforcement of the CWA. Enforcement actions undertaken by a state environmental regulatory agency or the EPA can be contentious, but they rarely give rise to a jurisdictional contest. Citizen suits, however, can create interesting questions of law with respect to the jurisdiction of the federal courts over suits to enforce state water quality standards when a state has enacted standards that exceed federal minimums. The CWA provides for citizen suit enforcement under 33 U.S.C. [section] 1365, which states, in part:

2AC – Perm do Both – Compensatory Federalism Fed action is perceived as support and follow on – key to policy stabilityFiorino & Weted ’21 (Daniel, Director at the Center for Environmental Policy at American University, Carley, doctoral student in the Department of Public Administration and Policy at American University, Environmental Federalism in a Polarized Era 1-8-2021 State and Local Government Review Vol 52 Issue 2 https://journals.sagepub.com/doi/abs/10.1177/0160323X20986225//AF)Another argument is compensatory federalism, where “governments at one level of the system are able to compensate for weaknesses or defects at another level” (Derthick 2010, 59). States may counteract a federal susceptibility to paralysis, which matters in an era of polarization and gridlock: “When Washington is hesitant, uncertain, distracted, and in disagreement over what to do, states, having governments of their own, may step into the breach” (Derthick 2010, 66).For climate action, this has been a virtue. While President Trump aims to reverse Obama policies, many states are leading in climate mitigation and energy innovation (Karapin 2016; Rabe 2019). Federalism may also facilitate innovation. The Clean Air Act built on California’s experience; many states adopt California’s stringent vehicle standards over federal rules (Vogel 2018). Rabe (2019) recounts the innovations in pollution prevention, toxics reporting, energy efficiency, and ecosystem protection introduced by states and copied elsewhere in a federal system. Another benefit, which serves as a supplement to compensatory federalism, is enhanced policy stability . Federalism provides ballast in which one level of government can constrain rapid or abrupt policy shifts occurring at another level. Ruckelshaus’ swings of the pendulum have become ever more pronounced nationally, especially since the 2016 election (Ruckelshaus 1996). Federalism limits swings of the pendulum by placing federal and state authority in opposition and offsetting policy instability. A strong federal presence in environment policy can also help achieve economies of scale , especially for studying health and ecological effects, research to support standard-setting, and technology development. This has not been a controversial aspect of environmental federalism; few would argue that Iowa or Nevada should be left to do their own research and development. Finally, there is the normative argument that all citizens should enjoy a minimal level of health and environmental protection. An equity argument is that protection of public health and critical ecosystem services should not depend on whatever constellations of political interests exist in any one state.

2AC – Uncoop Fism -- Perm Do Both Perm do both – solves uncooperative federalism.Pozen 9 [Jessica Bulman-Pozen; 2009; Betts Professor of Law and a director of the Center for Constitutional Governance at Columbia Law School; Heather K. Gerken; “Uncooperative Federalism,” Yale Law Journal, Vol. 118, No. 7, p. 1293] |Trip|To begin with, the administrative safeguards of federalism extend the time horizon for states to challenge federal policy . When states are outside the federal scheme, their best chance of challenging federal policy is likely to arise when the statute is passed or amended -times when lobbying and partisan ties ought to be particularly effective. States that will ultimately be insiders to the federal scheme, in contrast, are likely to have more than one bite at the apple. They can fight when the statute is passed. But if they lose that fight, they will still have ample opportunity to amend and challenge federal policy once the scheme is put in place. For instance, Wisconsin and Michigan successfully changed welfare policy that was statutorily entrenched.

2AC – Uncoop Fism – Not Zero-Sum Federalism is not zero-sum – no internal link between the Counterplan and cementing federalism – Claim of Federal overreach is inflated Beienburg 18 [Sean Beienburg; 2018; Assistant Professor in the School of Civic and Economic Thought and Leadership at Arizona State University; “States' Rights Gone Wrong? Secession, Nullification, and Reverse-Nullification in Contemporary America,” Tulsa Law Review, Vol. 53, No. 2, p. 195] |Trip|Like many of the contributors in the Levinson volume, Nolette notes that state officials have an incentive to play up the level of federal conflict , appealing to constituents eager to see someone fight Washington, especially when overlaid with partisanship and polarization . Polarization and the nationalization of politics means AGs, always keen to leverage that position into higher office, have concluded that suing out-party feds makes a particularly useful platform for ascent.25Federalism on Trial offers a firm rejoinder to those who, whether happily or dolefully, have marked the end of meaningful federalism in America.26 That rejoinder is a troubling one, regardless of one’s views on federalism—a lingering “national neurosis” 27 or the centerpiece and crown jewel of a lost Constitution.28As many scholars have noted , the new regime of post-New Deal cooperative federalism is not zero-sum in limiting government power, like its dual federalist predecessor, but it instead authorizes the expansion of both sovereigns , with the states and federal government each more powerful when working for common aims and dividing responsibility based on effectiveness.29 What Nolette shows, however, is that this paradoxically has empowered progressive state AGs to use litigation to force the feds to act in ways states want

2AC – Uncoop Fism – Distinct Motivation Doesn’t solve Uncooperative federalism – mechanisms occur for non-constitutional reasonsRoesler 19 [Shannon Roesler; 9/9/2019; ELR Staff summarizing Law Professor Roesler’s book; “Federalism as a Zero-Sum Game,” Environmental Law Institute Review, https://www.eli.org/vibrant-environment-blog/federalism-zero-sum-game] |Trip|In this month’s featured ELR article, Competitive Federalism: Environmental Governance as a Zero-Sum Game, Prof. Shannon Roesler of the Oklahoma City University School of Law evaluates the causes of the recent turn to competitive federalism in the context of anti-pollution regulation. Her article, adapted from the new ELI Press book Beyond Zero-Sum Environmentalism, argues that despite rhetoric fueled by state federalism, politics, and economics, there is evidence that people do not view environmental protection and economic well-being in zero-sum terms. Moreover, Roesler challenges the rhetoric used among public officials, arguing that it does not align with public interest or values.Contrary to arguments that state sovereignty is the leading driver of competitive federalism , Roesler maintains that challenges to decisions like the Clean Power Plan or the WOTUS Rule actually stem from something other than constitutional or federalism principles. She observes that states are motivated to challenge federal rules if they are imposing burdens on state institutions that are costly enough to justify fighting them; further, state attorneys general may be more likely to pursue litigation if they will benefit personally or politically . Roesler thus contends that recent environmental governance has been influenced by concentrated, well-financed, short-term interests .

2AC – Uncoop Fism AT: Leverage Memorials are normal means of the Counterplan and fail – they get ignored by DC Gollob 11 [Justin Gollob; 2/5/2011; Professor of Political Science at Colorado Mesa University, PhD in Political Science from Temple University; J. Wesley Leckrone; “The Effectiveness of Intergovernmental Lobbying Mechanisms in the American Federal System,” Fédéralisme, Vol. 12, p. 9] |Trip|Memorials have received little attention in the literature so we will explore their use and effectiveness in more detail than the other mechanisms of intergovernmental influence. Memorials to Congress are used frequently by state legislatures, with 4119 submitted from 1987-2006 39. Our survey shows that 51% of the respondents introduced at least one memorial during a two year legislative session with an average of more than three memorials over the same period. However, from the data discussed above, we can see that memorials are viewed as being largely ineffective . The survey showed that state legislators believe they have little effect because politicians and bureaucrats in Washington DC pay little attention to them.

2AC – Uncoop Fism AT: Suits Courts rule against the Counterplan – But even if they don’t, Congress will circumvent Adler 5 [Jonathan H. Adler; 2005; Professor and Director of the Centre of Environmental Law at Case Western Reserve University; “ Judicial Federalism and the Future of Federal Environmental Regulation,” Iowa Law Review, Vol. 90, p. 433-434] |Trip|To date, the Supreme Court's federalism jurisprudence has had relatively little impact on federal environmental regulation, let alone a multiple "whammy."369 Even where federalism principles would counsel curtailing federal regulatory authority, as with the Commerce Clause, 370 federal appellate courts have been reluctant to travel down this path , and the Supreme Court , thus far, has rejected opportunities to lead the way . 371 Where the Court's federalism holdings do constrain existing environmental laws, by and large the limitations have been minor, and Congress is able to circumvent most such restrictions should it choose to do so. That the revival of federalism has not yet transformed federal environmental policy does not ensure that it will not do so in the future. Looming on the legal horizon is at least one question of federalism that could cause substantial change in federal environmental law-constitutional limits on Congress's spending power, particularly Congress's authority to induce state action through the use of conditional spending . 372 Because conditional spending is used in many environmental laws to encourage, or otherwise induce, state cooperation with federal regulatory efforts, the scope of the spending power is important for federal environmental law. As the spending power is used to supplement, or extend, existing federal authmity over state governments, legal challenges to such use of the spending power become more likely.

Uncooperative federalism turns democracy – hurts accountability and allows rogue officalsBeienburg 18 [Sean Beienburg; 2018; Assistant Professor in the School of Civic and Economic Thought and Leadership at Arizona State University; “States' Rights Gone Wrong? Secession, Nullification, and Reverse-Nullification in Contemporary America,” Tulsa Law Review, Vol. 53, No. 2, p. 196-197] |Trip|Nolette recognizes the problem of democratic accountability , which John Marshall noted in McCulloch v. Maryland 32 and which was further developed into critiques of nullification by Daniel Webster and Edward Livingston.33 Neither state governments, setting policy for their own citizens, nor the federal government, setting policy for the people of the United States (within constitutional limits), posed a (theoretical) problem of accountability. In both cases, the relevant group of citizens retained sovereignty to replace their officials and pursue a new policy. Nullification breaks this, allowing a subunit to control policy beyond its own borders and dictate policy to those who have no recourse — in effect, Eliot Spitzer as an inverted John Calhoun. As Nolette writes, “[a]lthough it is not unusual in the history of American federalism for individual state statutes to prohibit activity otherwise legal in other states, what is new is the AGs ’ effort to use the strict standards of state law for a form of national regulation . . . .”34The new regime of AG lawsuits thus mirrors the problem of nullification : in that case, governing officials from a single state sought to set a negative national policy for the people of the country as a whole. Now, such a state or group of states sets an affirmative national policy , similarly without democratic control, an extreme example of what Jacob Levy has described as “outward-facing” federalism by which states affect politics beyond their borders rather than simply seek to be left alone.35Moreover, Nolette shows that this is not only a problem of federalism but of the separation of powers, as AGs set policy without the benefits of deliberation produced by the elected branches. Nolette argues that under this litigation regime, just as a handful of states may not balance the needs of the country , neither do AGs have much of an incentive to balance competing public policy aims. For example, in targeting pharmaceutical pricing schemes, they do not have to factor in the implicit subsidization of other expensive procedures through arguably overpriced, ostensibly “fraudulent” drug pricing, or, in the case of environmental protection, economic vitality against carbon emissions. Legislators and executive branch officials must do this, either through direct law-making or administrative notice and comment, but AGs are able to operate with a troubling myopia which additionally allows a divide-and-conquer strategy targeting business by business, since corporations have far less incentive to assist a specific legal case against a rival than they do to band together for lobbying purposes. AGs can even help administrative agencies bypass their own democratic checks and arguably statutory authorization: for example, Nolette is troubled by the possibility of EPA officials colluding with state AGs to fix policy undesired by the administration. Such settlements , he fears, allow rogue bureaucrats to lock in and bind the hands of future EPA officials to whatever settlement the AGs have wrung out in expanding statutes beyond the purposes to which they were tailored by their drafters.36 Even worse, Nolette worries that AGs may brush aside legal and constitutional issues constraining other actors: other institutions refrained from imposing or loosened advertising constraints on pharmaceuticals on grounds that they violated the First Amendment. The nominally “voluntary” settlements procured in AG settlements, however, bypassed these civil libertarian worries.37

Federalism DA

NEG

1NC – DA Environmental federalism is hanging in the balance now — the plan sets it in the federal governments favor.Adler 20 — Johnathan Adler, Professor of Law at Case Western Reserve University, Director of the Coleman P. Burke Center for Environmental Law, senior fellow at the Property & Environment Research Center, J.D. from George Mason University, 2020 (“Uncooperative Federalism 2.0,” Hastings Law Journal, Available Online at https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=3058&context=faculty_publications, Accessed on 07-13-2021, Jackson Hightower)One area ripe for reconsideration is the federal-state balance in environmental law. Concerns about federalism in environmental law have persisted since the 1970s, when Congress began enacting broad environmental regulatory statutes.17 In the mid-1970s, state governments resisted the EPA’s efforts to force more aggressive air pollution regulation.18 In the 1980s, the Reagan Administration sought to lessen the burdens of federal environmental regulation, albeit with limited success.19 In the 1990s, private landowners and local governments sought relief from what they perceived as overweening and excessive federal environmental regulation.20 During the Obama Administration, state attorneys general and resource groups assailed ambitious environmental regulatory initiatives, such as the Clean Power Plan and a broadened definition of “waters of the United States” under the Clean Water Act. 21 Given the history of opposition to federal environmental regulation, particularly among Republican constituencies, it is unsurprising that candidate Trump campaigned on a platform of limiting federal regulation and, upon his election, sought to appoint critics of such regulation to key administration posts.22A common conservative critique of federal environmental law is that it is overly centralized. Under this view, the federal government does too much, and crowds out the opportunity for state governments and local communities to pursue their own environmental priorities. Distinctly local priorities, such as the management of local resources or land use, get subsumed by federal regulatory edicts .There is much truth to this critique, but it captures only part of the picture. Federal environmental statutes and implementing regulations centralize much environmental policy decision-making, including decision-making concerning distinctly local matters. As a consequence, many policy decisions that are more appropriately dealt with at the state or local level are made in Washington, D.C. At the same time, the federal government has failed to address those sorts of environmental problems for which federal involvement is most need and most appropriate. The result is a pervasive jurisdictional mismatch in federal environmental law, which undermines the more effective achievement of environmental policy goals.23Federal environmental statutes and regulations govern many matters for which the costs and consequences of environmental policy decisions are localized. The argument for federal primacy in such matters is quite weak. Where the costs and benefits of environmental policy choices are known and confined to a given political jurisdiction, there is little reason to believe that transferring responsibility for making such choices to Washington, D.C. will produce systematically better results. Indeed, given the wide geographic, environmental, economic, and political variations across the country, there are many reasons to suspect that federal policy decisions concerning localized problems will actually be worse than those made by state and local officials. Localized knowledge is difficult to accumulate and deploy from a centralized administrative agency. Regional differences mean that federal policies will often fail to account for local particulars. As a consequence, uniform policies are likely to be over-protective in some areas, and under-protective in others. A policy that effectively reduces air pollution in one part of the country, such as New York City or Atlanta, may not work as well in parts of the country with different mixes of pollution sources, different topography, and a different climate. Further, the likelihood that “one size fits all” federal policies operate as “ one size fits nobody ” will only increase over time, as environmental measures experience diminishing marginal returns and regional variation becomes more important on the margin.

Effective federalism is key to mitigate climate changeAdler 20 (Jonathan, Johan Verheij Memorial Professor of Law and inaugural Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. 2-21-20 “Uncooperative Environmental Federalism 2.0” Volume 71 Issue 5 Hastings Law Journal https://repository.uchastings.edu/cgi/viewcontent.cgi?article=3904&context=hastings_law_journal pp. 1107-1110 JO)A common conservative critique of federal environmental law is that it is overly centralized. Under this view, the federal government does too much, and crowds out the opportunity for state governments and local communities to pursue their own environmental priorities. Distinctly local priorities, such as the management of local resources or land use, get subsumed by federal regulatory edicts. There is much truth to this critique, but it

captures only part of the picture. Federal environmental statutes and implementing regulations centralize much environmental policy decision-making, including decision-making concerning distinctly local matters. As a consequence, many policy decisions that are more appropriately dealt with at the state or local level are made in Washington, D.C. At the same time, the federal government has failed to address those sorts of environmental problems for which federal involvement is most need and most appropriate . The result is a pervasive jurisdictional mismatch in federal environmental law, which undermines the more effective achievement of environmental policy goals.23Federal environmental statutes and regulations govern many matters for which the costs and consequences of environmental policy decisions are localized. The argument for federal primacy in such matters is quite weak. Where the costs and benefits of environmental policy choices are known and confined to a given political jurisdiction, there is little reason to believe that transferring responsibility for making such choices to Washington, D.C. will produce systematically better results. Indeed, given the wide geographic, environmental, economic, and political variations across the country, there are many reasons to suspect that federal policy decisions concerning localized problems will actually be worse than those made by state and local officials. Localized knowledge is difficult to accumulate and deploy from a centralized administrative agency . Regional differences mean that federal policies will often fail to account for local particulars. As a consequence, uniform policies are likely to be over-protective in some areas, and under-protective in others. A policy that effectively reduces air pollution in one part of the country, such as New York City or Atlanta, may not work as well in parts of the country with different mixes of pollution sources, different topography, and a different climate. Further, the likelihood that “one size fits all” federal policies operate as “one size fits nobody” will only increase over time, as environmental measures experience diminishing marginal returns and regional variation becomes more important on the margin. Prioritization is necessary . Federal regulatory resources are necessarily limited. As a consequence, regulatory agencies can maximize the benefits of their regulatory efforts in so far as they concentrate or target their efforts where federal intervention is likely to do the most good, and the least harm. Accordingly, federal regulatory resources are best utilized if they are targeted at those areas where there is an identifiable federal interest or where the federal government is in a particularly good position to advance environmental protection, particularly given available alternatives. Federal regulatory agencies will often have greater scientific and technical expertise than their state and local counterparts, but this does not necessarily translate into superior policymaking. The technical expertise necessary for identifying various trade-offs at the margin does not translate into a superior ability to determine which trade-offs should be made, particularly insofar as such choices implicate subjective value preferences about how to prioritize competing goods when resources are scarce. Should marginal resources be devoted to controlling emissions of ozone precursors, limiting nutrient runoff into local streams, ensuring proper remediation of an abandoned waste site, or expanding access to health care or nutritional programs? Such choices necessarily implicate normative concerns that are beyond any scientific or technical analysis . Superior expertise certainly supports an argument that federal agencies should assist state and local policymakers and help ensure that environmental policy decisions are more informed, but not that state and local policy choices should be made in Washington, D.C. One prominent justification for federal environmental regulation of localized pollution concerns is that the lack of a federal “floor” could lead to a destructive “race-to-the-bottom,” in which states adopt sub optimally lax environmental protections in a futile effort to attract off-setting levels of economic investment.24As President Richard Nixon warned in 1970, without stringent federal environmental standards, “states and communities that require such controls find themselves at a...disadvantage in attracting industry, against more permissive rivals.” The race-to-the-bottom theory presumes that interjurisdictional competition creates a prisoner’s dilemma for states. Each state wants to attract industry for the economic benefits that it provides. Each state also wishes to maintain an optimal level of environmental protection. However, in order to attract industry, the theory holds, states will lower environmental safeguards so as to reduce the regulatory burden they impose upon firms. This competition exerts downward pressure on environmental safeguards as firms seek to locate in states where regulatory burdens are the lowest, and states seek to attract industry by lessening the economic burden of environmental safeguards. Because the potential benefits of lax regulation are concentrated among relatively few firms, these firms can effectively oppose the general public’s preference for environmental protection regulation. This will lead to social welfare losses even if environmental harm does not spill over from one state to another. The result, according to the theory, is the systematic under-regulation of environmental harms, and a need for federal intervention. The race-to-the-bottom theory may have had some basis in the 1960s and 1970s, but there is little reason to believe that this dynamic inhibits state regulatory efforts today, particularly given how aggressive many states are in environmental policy. Empirical evidence that states race to relax their environmental regulations in pursuit of outside investment is decidedly lacking. If the prospect of interstate competition discourages state-level environmental regulation, it is hard to explain why state environmental regulation often preceded federal intervention and why many states adopt more stringent measures than federal regulations require. Numerous studies have been conducted attempting to determine whether a race-to-the-bottom can be observed in the context of environmental regulation, and they have generally failed to find any evidence that environmental quality worsens when states are given more flexibility to set their own priorities.27Indeed, some studies have found precisely the opposite: that when states have more flexibility to set their own environmental priorities they increase their efforts .2

Warming causes extinctionDunlop 17 [Ian Dunlop chaired the Australian Coal Association in 1987-88, chaired the Australian Greenhouse Office Experts Group on Emissions Trading from 1998-2000 and was CEO of the Australian Institute of Company Directors from 1997-2001. He has a particular interest in the interaction of corporate governance, corporate responsibility and sustainability. An engineer by qualification, he holds an MA (Mechanical Sciences) degree from the University of Cambridge, he is a Fellow of the Australian Institute of Company Directors, the Australasian Institute of Mining and

Metallurgy, and the Energy Institute (UK), and a Member of the Society of Petroleum Engineers of AIME (USA). He also chairs the Australian National Wildlife Collection Foundation. David Spratt is a Research Director for Breakthrough and co-author of Climate Code Red: The case for emergency action (Scribe 2008). His recent reports include Recount: It’s time to “Do the math” again; Climate Reality Check and Antarctic Tipping Points for a Multi-metre Sea-level Rise. A Failure of Imagination on Climate Risks. July 26, 2017. www.resilience.org/stories/2017-07-26/a-failure-of-imagination-on-climate-risks/]Climate change is an existential risk that could abruptly end human civilisation because of a catastrophic “failure of imagination” by global leaders to understand and act on the science and evidence before them.At the London School of Economics in 2008, Queen Elizabeth questioned: “Why did no one foresee the timing, extent and severity of the Global Financial Crisis?” The British Academy answered a year later: “A psychology of denial gripped the financial and corporate world… [it was] the failure of the collective imagination of many bright people… to understand the risks to the system as a whole”.A “failure of imagination” has also been identified as one of the reasons for the breakdown in US intelligence around the 9/11 attacks in 2001.A similar failure is occurring with climate change today.The problem is widespread at the senior levels of government and global corporations. A 2016 report, Thinking the unthinkable, based on interviews with top leaders around the world, found that:“A proliferation of ‘unthinkable’ events… has revealed a new fragility at the highest levels of corporate and public service leaderships. Their ability to spot, identify and handle

unexpected, non-normative events is… perilously inadequate at critical moments… Remarkably, there remains a deep reluctance , or what might be called

‘executive myopia’, to see and contemplate even the possibility that ‘unthinkables’ might happen , let alone how to handle them.Such failures are manifested in two ways in climate policy. At the political, bureaucratic and business level in underplaying the high-end risks and in failing to recognise that

the existential risk of climate change is totally different from other risk categories. And at the research level in underestimating the rate of climate change impact and costs, along with an under-emphasis on , and poor communication of, those high-end risks .Existential riskAn existential risk is an adverse outcome that would either annihilate intelligent life or permanently and drastically curtail its potential. For example, a big meteor impact, large-scale nuclear war, or sea levels 70 metres higher than today.

Existential risks are not amenable to the reactive (learn from failure) approach of conventional risk management , and we cannot necessarily rely on the institutions, moral norms, or social attitudes developed from our experience with managing other sorts of risks . Because the consequences are so severe — perhaps the end of human global civilisation as we know it —

researchers say that “ even for an honest , truth-seeking, and well-intentioned investigator it is difficult to think and act rationally in regard to … existential risks ”. Yet the evidence is clear that climate change already poses an existential risk to global economic and societal stability and to human civilisation that requires an emergency response . Temperature rises that are now in prospect could reduce

the global human population by 80% or 90%. But this conversation is taboo, and the few who speak out are admonished as being overly alarmist .

Prof. Kevin Anderson considers that “a 4° C future [relative to pre-industrial levels] is incompatible with an organized global community, is likely to be beyond ‘ adaptation’ , is devastating to the majority of ecosystems , and has a high probability of not being stable”. He says: “If you have got a population of nine billion by 2050 and you hit 4°C, 5°C or 6°C, you might have half a billion people surviving”. Asked at a 2011 conference in Melbourne about the difference between a 2°C world and a 4°C world, Prof. Hans Joachim Schellnhuber replied in two words: “Human civilisation”.

Link

Link – Generic Any federal implementation necessarily erodes a basic tenet of constitutional federalism, reversing existing Supreme Court deferenceMalloy 12 [Bonnie graduated magna cum laude from Florida State University College of Law in 2010 with a certificate in Environmental and Land Use Law. TESTING COOPERATIVE FEDERALISM: WATER QUALITY STANDARDS UNDER THE CLEAN WATER ACT. March 21, 2012. https://www.law.uh.edu/eelpj/publications/6-1/Malloy.pdf]The Supreme Court has bolstered states’ rights in several decisions that could be understood as limiting the federal government’s authority within the WQS context . At a minimum, the Court’s willingness to emphasize the states’ primacy and uphold state actions that limit or change federally-set standards may send a message to federal agencies to trea d lightly when initiating actions within this area. Although these cases are supportive of state autonomy in land use, they neither expand states’ rights past any right already granted or preserved in the CWA nor abridge federal authority. Some infringement of states’ traditional land use authority will necessarily result any time a federal agency follows the CWA’s mandatory duties to set WQS for states that fail to do so or do so incorrectly.1. States retained jurisdiction over land-use and water allocation.The Supreme Court’s decision in Rapanos87 provides a useful discussion of the underlying federalism concerns that arise in challenges under the CWA. In Rapanos, Justice Scalia’s plurality opinion found that isolated wetlands adjacent—but with no “continuous surface connection”—to ditches that occasionally drain into tributaries of navigable waters were not within the Corps’ jurisdiction.88 Scalia found that the Corps stretched the terms “the waters of the United States” too far when requiring permits for certain wetlands that had no clear, continuous surface connection to ditches that only periodically drained into navigable waters.89 Interestingly, Scalia’s interpretation was partially founded on the CWA’s policy of preserving the rights of states.90 In reaching this result, Scalia rejects Justice Kennedy’s rationale in a concurring opinion that relied on the CWA’s main purpose—cleaning up waters—when interpreting the scope of the Corps’ jurisdiction.91Specifically, Scalia found that the Corps’ interpretation would significantly infringe the states’ traditional autonomy over land use and water allocation by subjecting almost all development planning to federal control.92 According to Scalia, unprecedented intrusions into traditional state authority and any act that presses the limit of the Congress’ constitutional validity, under the Commerce Clause, must have “clear and manifest” congressional approval.93 Here, the mere terms “the waters of the United States” was not enough to allow the federal government to encroach upon a state’s land use decisions.

The autonomy of states over land use decisions is a basic tenet of constitutional law , and like Scalia pointed out, the CWA expressly preserved all traditional rights of the states.94 Moreover, it is easy to see that as the Corps’ jurisdiction expands to more and more wetlands; it increasingly interrupts a state’s ability to decide land use issues . While most instances of federal actions under the CWA do not exhibit such extreme infringements on states’ rights, this is a constant concern to courts. It is important to keep in mind that any action taken by EPA or the Corps while executing their duties will interfere at some level with these reserved rights .95

States have definite power over water law and allocationBabie et al 20 (Paul T., Adelaide Law School Professor of the Theory and Law of Property, The University of Adelaide. Paul Leadbeter, Senior Lecturer, Adelaide Law School, The University of Adelaide. Kyriaco Nikias, Research Associate and Associate Teacher, Adelaide Law School, The University of Adelaide. “Federalism Fails Water: A Tale of Two Nations, Two States, and Two Rivers” 4-8-2020 U. of Adelaide Law Research Paper, J. ENVTL. LAW AND LITIGATION, Vol. 35, 1 pp. 19-20 JO)When the federal government legislates within its sphere of competence, the Supremacy Clause ensures that such law is the “supreme law of the land.”85This power, operating in concert with the preemption doctrine developed by the Supreme Court of the United States, results in relevant federal legislation preempting state law, even in the case of state and federal laws that conflict with one another.86As a general matter, in the absence of any federal law, however, a state law will operate, but only until such time as the federal government might legislate. Alternatively, where conflict might otherwise occur, the two spheres of government can cooperate with respect to a given matter.87The question then arises as to which powers the states exclusively enjoy in relation to water. An initial distinction must be drawn between interstate waters (flowing through more than one state) and those entirely within one state. In the case of the former, “on the whole, the federal government’s powers have been used to guide and control the development of major streams in the country.”88In the case of the latter, as the owner of all resources “occurring wholly within [its] borders,”89and because the Tenth Amendment ensures that undelegated powers are reserved to the states, a state has “greater responsibility for the distribution and use of waters locally.”90The powers reserved to the states with respect to water fall into three broad categories. First, the “police power” allows for the regulation of “various water activities for the general welfare, such as the production of water for domestic purposes or the control of sewage disposal,” and “for the protection of health, safety, and welfare, including [public] trust resources, such as fish and wildlife.”92Second, states enjoy “the power to determine the allocation and distribution of both surface and underground waters within the state. The states are permitted to adopt whatever system of water law they choose , including the law for those lands which have passed from the federal government to the states, provided it does not conflict with the federal government’s powers over navigation.”93This allows for the entirety of state water resources law, which governs the allocation and use of water not otherwise subject to federal jurisdiction.94And third, states may exercise “powers to engage in interstate action with respect to water use and development.”95Of greatest significance here are those instances of cooperative or flexible federalism resulting in interstate compacts, as we will see in Part III in relation to the Colorado River Compact of 1922.

Link – Water Allocation Water allocation is the most important area of water federalism.Craig 13 — Robin Craig, Professor of Water, Energy, and Climate Change at the University of Southern California School of Law, PhD in Science from the University of California, Santa Barbara, J.D. from the Lewis & Clark School of Law, 2013 (“Adapting Water Federalism to Climate Change Impacts: Energy Policy, Food Security, and the Allocation of Water Resources,” Environment & Energy Law & Policy Journal, Volume 5, June 8th, Available Online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555944&download=yes, Accessed on 07-12-2021, Jackson Hightower)At the other end of the spectrum is states’ rights or decentralized federalism—a recognition of states’ primacy in certain areas of law and regulation, with occasional back bending attempts on the federal government’s part to recognize, protect, and insulate those state roles from federal interference.15 With respect to water, states’ rights federalism is most prominent in the area of water rights allocation, where the federal government often goes out of its way to preserve—and, indeed, often submits itself to—state law schemes for assignment rights to use water.16

It's a quintessential part of decentralized federalism.Craig 13 — Robin Craig, Professor of Water, Energy, and Climate Change at the University of Southern California School of Law, PhD in Science from the University of California, Santa Barbara, J.D. from the Lewis & Clark School of Law, 2013 (“Adapting Water Federalism to Climate Change Impacts: Energy Policy, Food Security, and the Allocation of Water Resources,” Environment & Energy Law & Policy Journal, Volume 5, June 8th, Available Online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555944&download=yes, Accessed on 07-12-2021, Jackson Hightower)In sharp contrast to navigation, authority over water allocation—the law governing who has the right to remove fresh water from its natural watercourse and to use that water for some consumptive purpose, such as irrigation, drinking water, or industrial manufacturing—is deemed, sometimes obsessively , to belong to the states .39 Thus, this aspect of water management provides a quintessential example of states’ rights or decentralized federalism. There is little question that water allocation is decentralized , with the exact principles and requirements governing the withdrawal and consumptive use of water varying considerably from location to location.40 When it comes to ground water regulation, for example, and even generalizing, the states have followed at least five different regulatory systems.41 With regard to surface water, the eastern states inherited from England the doctrine of riparianism, which ties the right to use water to ownership of the land adjoining the water source—i.e., the riparian landowners.42 Even so, many eastern states have since realized that the legal connection of consumptive use rights to riparian land ownership limits non-riparian development43 and have transitioned to “regulated riparianism” and administrative permitting.44 In contrast, the perpetually water-limited and drought-threatened western states generally rejected riparianism in favor of the prior appropriation doctrine.45 Prior appropriation operates on a principle of “first in time, first in right”—the first user to apply water to a beneficial use, without waste or abandonment, acquires a continued right to a water supply superior to that of later users drawing water from the same source.46 Nevertheless, Hawaii follows its own rules regarding the allocation of surface water in order to recognize Native Hawaiian traditions and rights with respect to water,47 while California, Nebraska, and Oklahoma combine riparian and prior appropriation rules in systems known as the California Doctrine.48Of course, water allocation is not a pure example of decentralized federalism, as Reed Benson has discussed at length.49 Nevertheless, the federal government does go to significant effort to preserve states’ rights with respect to water allocation. For example, the Desert Land Act of 187750 applies to lands in California, Oregon, Nevada, Colorado, Washington, Idaho, Montana, Utah, Wyoming, Arizona, New Mexico, North Dakota, and South Dakota that were public (federal) at the time of enactment.51 As interpreted by the Supreme Court, in that statute Congress both severed non-navigable waters from the public lands, ending common-law riparian rights,52 and gave control over water rights in those waters to the states,53 effectively shifting the legal ability to water rights on those lands from the federal government to the states.Similarly, in section 8 of the Reclamation Act of 1902, Congress declared that: Nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws . . . .54

Thus, Congress not only sought to respect the states’ laws on water allocation but also to subject the Secretary of the Interior and its subsidiary, the Bureau of Reclamation, to them.55 As the Supreme Court explained in 1978, “[a] principal motivating factor behind Congress’ decision to defer to state law was thus the legal confusion that would arise if federal water law and state water law reigned side by side in the same locality.”56 However, “[b]oth sponsors and opponents of the Reclamation Act also expressed constitutional doubts as to Congress’ power to override the States’ regulation of waters within their borders.”57 Notably, this predilection for preferring state law in the context of water allocation is so strong that Congress and the Secretary have followed the Reclamation Act’s model even when a particular project could have been justified on navigation grounds, potentially overriding the state’s rules.58Another example of federal preservation of state primacy in water allocation comes in the Clean Water Act. This statute explicitly states that:It is the policy of Congress that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter. It is the further policy of Congress that nothing in this chapter shall be construed to supersede or abrogate rights to quantities of water which have been established by any State. Federal agencies shall cooperate with State and local agencies to develop comprehensive solutions to prevent, reduce and eliminate pollution in concert with programs for managing water resources.59While this provision makes it clear that the EPA and the Army Corps are not in the business of establishing water rights, the courts have done little to explicate its full meaning. In general, the federal courts have adopted a policy of accommodation, emphasizing that while this provision “preserve[s] the authority of each State to allocate water quantity as between users, [it does] not limit the scope of water pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation.”60 However, more recent cases from the Supreme Court have stressed that “the Clean Water Act provides for a system that respects the States’ concerns”61 and have read federal regulatory authority narrowly “to avoid significant constitutional and federalism questions . . . .”62 Perhaps not coincidentally, the U.S. Court of Appeals for the Ninth Circuit recently expressed more definitive protection for state authority over water allocation, concluding that “[i]n the absence of state law to the contrary, water withdrawals are not subject to the requirements of the Clean Water Act.”63Congress’s repeated determination to preserve state authority over water allocation raises, from the opposite perspective from federal supremacy in navigation, the question of why? Why has the federal government generally been deferential to the states in the context of water allocation? Again, Benjamin Sovacool’s typology suggests answers. Sovacool argues that:[t]he case for devolution of environmental policy often rests on a set of four interconnected assumptions: (i) that decentralization induces experimentation and innovation ; (ii) devolution provides more flexibility in responding to environmental problems; (iii) decentralization improves accountability and equity; and (iv) states will engage in welfare-enhancing competition to craft better environmental policies.64

Link – Congress Expansion of Congressional environmental policy disregards constitutional limitationsAdler 2005 (Jonathan H, inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, where he teaches courses in environmental, administrative and constitutional law, “Judicial Federalism and the Future of Federal Environmental Regulation”, Faculty Publications, https://scholarlycommons.law.case.edu/faculty_publications/175 // JK ) Despite the ambitious sweep of federal environmental legislation, there was little, if any, thought given to the constitutional justification for such enactments .54 Congress adopted environmental statute s governing a wide range of activities and phenomena never-before subject to federal regulation without questioning whether any such legislation might exceed the scope of Congress's enumerated powers .55 Nearly all the major environmental statutes give a passing nod to the historic state role in addressing pollution concerns, yet then proceed to expand the federal government's reach into such terrain. 56 Because federal environmental programs are so expansive, environmental regulation may be particularly vulnerable to federalism constraints on federal power. Insofar as courts restrict the scope of federal regulatory authority due to federalism concerns, this may have a particular effect on environmental regulation. II. THE SUPREME COURT's FEDERALISM Central to the Supreme Court's revived federalism jurisprudence is the idea that the structure of the Constitution creates a system of "dual sovereignty" in which both the federal government and the states are sovereigns.57 Although often characterized as a "States rights" philosophy, "dual sovereignty" is supposed to operate for the benefit of citizens, not states.58 Much as the horizontal separation of powers prevents any single branch of government from accumulating too much power, the division of authority between the federal and state governments protects liberty from government encroachment.59 "The different governments will control each other, at the same time that each will be controlled by itself," explained James Madison in Federalist

No. 51. 60 If the limits of federal power are respected , and the appropriate balance between the federal and state governments is maintained , inteijurisdictional competition restrains state governments from imposing unnecessary burdens upon their citizens. 61 The beneficiaries of this arrangement are not the state governments, as such, as they are forced to compete with one another for the loyalty of their citizens, but the people. Maintaining this balance is the purpose of

federalism. The Supreme Court's recent federalism jmisprudence has two distinct strains. The first focuses on the federal government's enumerated powers. These cases ask whether a given federal statute represents a proper exercise of one of Congress's enumerated powers. In these cases, the Court has held that the enumeration of distinct federal powers places affirmative limits on Congress's power. Some matters-those not within the bounds of the enumerated powers-are simply beyond the reach of federal hands. The second centers on protecting state sovereignty. The focus in these cases is the extent to which residual state sovereignty immunizes states from federal efforts to direct or otherwise influence state resources and policy decisions . Together, these two 3 From its inception the federal government has been a government of enumerated powers. As the Court declared in Marbury v. Madison, "The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written."62 Those powers not delegated to the federal government are, in the words of the Tenth Amendment, "reserved to the States, respectively, or to the people."63 The bulk of Congress's powers are enumerated in Article I, section 8 of the Constitution, though others are scattered through the document, including the enforcement power contained in section 5 of the Fourteenth Arnendment. 64 To the Court's current

majority, it is a matter of "first principles" that congressional authority is limited to these powers. 55 United States v. Lopez66 and City of Boerne v. Florel7 make clear that even Congress's broadest powers-to regulate commerce and protect civil liberties under the Fourteenth Amendment-have distinct and defined limits beyond which Congress's reach may not extend. Several of the Supreme Court's recent federalism cases have sought to define d1e outer limits of federal l . th 68 enumeratec powers m ese two areas

Link – WOTUS Expansion Expandign WOTUS violates federalism and the constitutionSean Hackbarth 15, Deputy Assistant Director, ICE Office of Congressional Relations Includes over 15 years of legislative affairs experience Holds current Top Secret security clearances (TS/SCI – plus compartmented classifications), JUL 17, 2015, "What is the Legal Case Against EPA’s Water Rule?," https://www.uschamber.com/above-the-fold/what-the-legal-case-against-epa-s-water-rule, hkWOTUS is Unconstitutional The water rule doesn’t just violate the Clean Water Act. The plaintiffs argue it also violates the 10th Amendment, which states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. State governments have the authority to regulate land and water in their states . The Clean Water Act affirms that states have “the primary responsibilities and rights … to plan the development and use … of land and water resources.” However, with the water rule, the federal government claims regulatory authority over nearly every body of water in America . Waters, including ditches, canals, ponds, and wetlands, as far as 4,000 feet from a navigable water can be regulated by the federal government . This violates the 10th Amendment. As the plaintiffs state: The Supreme Court requires a ‘clear and manifest’ statement from Congress to authorize [such] an unprecedented intrusion into traditional state authority. State and local government sovereignty gets squeezed as the federal government expands its reach.

Expansive WOTUS violates states’ jurisdiction on water – state governors prove US EPA 20, 1-23-2020, "What They Are Saying," https://www.epa.gov/newsreleases/what-they-are-saying-epa-and-army-deliver-president-trumps-promise-issue-navigable, hkU.S. Department of Agriculture Secretary Sonny Perdue: “President Trump is restoring the rule of law and empowering Americans by removing undue burdens and strangling regulations from the backs of our productive farmers, ranchers, and rural land-owners. The days are gone when the Federal Government can claim a small farm pond on private land as navigable waters. I thank President Trump and Administrator Wheeler for having the backs of our farmers, ranchers, and producers and for continuing to roll back Federal overreach. With reforms and deregulation, Americans once again have the freedom to innovate, create, and grow.”U.S. Senate Majority Leader Mitch McConnell (KY): “I applaud President Donald Trump,  Administrator Wheeler, and Assistant Secretary James for standing up for middle class families in Kentucky. Replacing the Obama EPA’s WOTUS rule with one that protects our waters while also being more workable is a win for farmers and small businesses.”U.S. Senator John Barrasso, Chairman, Senate Committee on Environment and Public Works  (WY): "President Trump is delivering on his promise to give Americans clean water and clear rules. Regulations must follow the law and be easy for Americans to understand. The Trump administration respects the authority Congress gave EPA under the Clean Water Act. The old WOTUS rule put Washington in control of ponds, puddles, and prairie potholes. The punishing regulation was so confusing that property owners and businesses could not determine when permits were needed. Even worse, it inserted Washington into local decision making. This overreach put unfair restrictions on how farmers, ranchers, and landowners could use their property. I will continue to work closely with the Trump administration as it seeks commonsense ways to keep America’s water clean and safe."U.S. Senator Pat Roberts, Chairman, Senate Committee on Agriculture, Nutrition, and Forestry (KS): “The original ‘WOTUS’ rule was nothing but a severe regulatory over reach. The growing threat farmers were facing from the previous administration’s regulatory warpath would have only added costs to their businesses and stymied their ability to compete. I’m thankful this administration’s rule is a much more reasonable approach to regulation.”U.S. Senator James Inhofe (OK): “The EPA’s release of this finalized WOTUS replacement rule is welcome news. Today, we can finally put the Obama-era WOTUS rule behind us and put the power back where it belongs, in the hands of the states. Rural states, like Oklahoma, have been severely harmed by the regulatory overreach of the Obama-era WOTUS rule. The agricultural community in Oklahoma was one of the hardest hit—which is why it was one of their top legislative priorities for so long. I’m proud that the threat of the federal government’s land grab is now officially dead. “Today’s action is yet more proof that the Trump Administration keeps promises, and America is winning because of it. I am proud to have worked with President Trump and EPA Administrator Wheeler to repeal the old rule and I look forward to continue our work of cutting red tape and harmful regulations.”U.S. Senator Chuck Grassley (IA): “President Trump deserves credit for following through on his promise to repeal this Obama-era rule that would have defined 97 percent of Iowa as a waterway. Giving the federal government the power to regulate nearly all of Iowa would have been an economic catastrophe. My neighbors who farm in Butler County shouldn’t have to get permission from bureaucrats in Washington to move soil on their own land. This was just another example of

out-of-touch and ill-conceived government overreach. This new rule will help keep our water and land clean without destroying Iowa’s small businesses and family farming operations.”U.S. Senator Joni Ernst (IA): “For years, Iowans have told me what an egregious overreach Obama’s WOTUS rule was, giving the federal government authority to regulate 97 percent of the land in Iowa. That’s absurd, and it’s why I’ve worked hard to get rid of it. After working relentlessly alongside the Trump Administration, I’m proud that we’ve successfully scrapped this Obama-era rule and are now providing the predictability and certainty our hardworking farmers, manufacturers, and landowners in Iowa deserve. Under President Trump’s leadership, we’ve fought to get the government off the backs of farmers and business owners and have had major wins on trade – like the USMCA, the phase one China deal, and the Japan agreement – all of which are spurring a sense of optimism and economic growth across rural America.”U.S. Senator Jim Risch (ID): “After years of overreach and uncertainty, Idaho’s farmers, ranchers, and landowners will finally have a rule that doesn’t confuse truly navigable waters with ditches and puddles. I applaud President Trump’s work to roll back this egregious overstep by the Obama administration and empower states to manage and protect their natural resources.”U.S. Senator Mike Crapo (ID): “Today’s announcement by the EPA will rebalance the relationship between the federal government and state and local on-the-ground experts for effective and environmentally-sound water quality management policies. President Trump’s Administration has taken decisive action on limiting federal overreach, and has brought regulatory certainty to Idaho farmers, ranchers and businesses who have been impacted by the old WOTUS definition.”U.S. Senator Roy Blunt (MO): “I’m glad the Trump administration has listened to rural America and taken the necessary steps to undo and replace the misguided Waters of the U.S. rule. The Obama-era WOTUS rule would have given the EPA jurisdiction over 99% of Missouri. I, over and over again, took the Farm Bureau map to the [Senate] floor, that was all in one color. And that was the color where the federal government would have jurisdiction over everything from puddles to ditches to ponds, from sidewalks to building permits.“I’ve heard from countless farmers, ranchers, small businesses owners, and elected officials who just simply said WOTUS would have not only driven up the costs but made it impossible for them to do their jobs. Getting rid of this rule is an important part of the broader effort we’ve been working on in the Senate to roll back regulations that would cost a lot, but have little or no positive impact.“This is an important victory for Missouri. I’m going to continue to work with the administration to make sure our economy has room to grow without the burden of costly, unnecessary red tape. When we need to have a rule, we need to have a rule that makes sense. But it has to make sense first and foremost.”U.S. Senator John Hoeven (ND): "The Obama-era WOTUS rule was duplicative of state and local efforts, violated private property rights and would’ve imposed significant costs on a wide range of industries, like agriculture, energy production and construction. That’s why we worked to prevent the 2015 rule’s implementation and supported the administration’s efforts to repeal it. We appreciate their continued efforts to provide certainty under the new NWPR rule, which seeks to cover only traditional navigable waters and encourage collaboration with states, tribes and localities, rather than override their authority. We will continue working to ensure the new rule achieves these important goals."U.S. Senator Kevin Cramer (ND): "Today’s announcement is excellent news. President Trump’s Administration values sound water policy and, more importantly, staying within the confines of the law. The 2015 Rule was egregious, and it’s good to see it being replaced with a new rule that is legal and will work for our farmers, businesses, and local governments. I’m grateful for the role North Dakotans played in leading on this issue, and I look forward to ensuring this rule is properly implemented."U.S. Senator Shelley Moore Capito (WV): “Certainty and predictable regulation are critical to a dynamic American economy. The previous WOTUS rule promulgated by the Obama Administration would have made it difficult for most Americans to determine if a federally protected body of water is located on their property and severely harmed the coal, natural gas, construction, and agriculture industries in West Virginia.  The replacement Navigable Waters Protection Rule is emblematic of President Trump’s insistence on commonsense regulation that does not inhibit economic growth, and is predicated on a clear reading of the Clean Water Act that protects the environment and preserves the important role of states in protecting their water resources.”U.S. Senator Steve Daines (MT): "This is about common sense policies that protect our environment and support responsible development. We can protect Montana’s water, support agriculture, and protect our property rights without overbearing regulations and mandates from DC bureaucrats. I applaud President Trump and his administration for rewriting the burdensome Obama-era WOTUS rule to ensure that Montanans are allowed to manage the land they know best."U.S. Senator Cindy Hyde-Smith (MS): “The new rule restores the rightful balance of federal and state jurisdiction under the Clean Water Act.  This will mean protecting our waters without subjecting agriculture, business, industry, and rural

communities to gross and overreaching federal regulation.  For Mississippi’s interests, this is a priority. I’m grateful to President Trump and his administration for correcting the flagrant power grab by the previous administration.”Governor Pete Ricketts (NE): “Thank you to President Trump and his team for successfully rolling back President Obama’s expansive Waters of the U.S. rule. This new rule builds on the great work the Trump Administration has been doing to cut red tape.  The rule respects states’ rights, and protects our farmers and ranchers from federal government overreach.”   Governor Brad Little (ID): The new WOTUS definition protects our nation’s waters while providing the appropriate deference to the states. Thank you U.S. Army Corps of Engineers and EPA!

The plan expands federal power into state domain – disrupts the system of check and balancesSenator Mike Braun 19, 8-4-2019, "Braun and Ernst Introduce “Define WOTUS Act” in Senate," https://www.braun.senate.gov/braun-and-ernst-introduce-define-wotus-act-senate, hk

“President Trump and his Environmental Protection Agency (EPA) are working hard to fix this atrocious Obama-era rule. But as the Administration has repeatedly noted, it’s Congress job to write laws. the Define WOTUS Act will solidify and amplify the Administration’s work on WOTUS,” said U.S. Senator Mike Braun. “I am proud to join with President Trump who is doing a tremendous job deregulating these job-killing regulations that hurt Hoosier farmers and those who reside in the Heartland of America.” “The Obama-era WOTUS rule threatened Iowa’s farmers , manufacturers , and small businesses by giving the federal government authority to regulate water on 97 percent of land in our state,” said U.S. Senator Joni Ernst. “President Trump and his administration have taken tremendous steps to roll back this far-reaching regulation and provide for more certainty with a new, clearer definition of WOTUS. But it’s the job of Congress to make a new, reasonable definition permanent, and that’s what this bill does—it ensures more predictability and workability for Iowans for years to come.” Colin Woodall, Senior Vice President of Government Affairs, National Cattlemen’s Beef Association said, “America’s cattle producers welcome today’s introduction of the Define WOTUS Act. The Trump Administration is working hard to repeal and replace the illegally broad 2015 WOTUS Rule, but finalization of a practical WOTUS definition is only the beginning. EPA will spend years proving what the Senate made clear today: Congress intends the management of America’s waters to be accomplished through cooperative federalism. NCBA appreciates Senator Braun’s leadership, and additionally appreciates the Define WOTUS Act’s inclusion of NCBA’s science-based proposal of 185 flow days per year for determining federal jurisdiction.”

WOTUS usurps federalism and turns democracy – the plan distances the government from the peopleMike Keegan 20. Analyst for the National Rural Water Association (NRWA), a non-profit association of more than 31,000 small and rural community water systems. "COMMENTARY: The Liberal Case for EPA's New WOTUS Law". Water Finance & Management. 8-10-2020. https://waterfm.com/commentary-the-liberal-case-for-epas-new-wotus-law/, hkIt would be more honest for the Trump rule critics to argue that we can’t trust states and localities to protect their waters like we can trust the federal regulators. These paternalistic advocates and their experts could even be right, but that is neither liberty nor democracy – it is rather the usurpation of liberty. Much of the environmental law enacted since the late 1960s has been predicated on the theory that the federal bureaucracy cares more about the public and is smarter than the democratically elected state and local governments. Regulators were delegated enforcement authority over state and local governments to protect the public from the decisions of their elected local leaders. In essence, they believe people need to be protected from themselves and their local democratic processes by the experts. This WOTUS debate has less to do with science and more to do with control.   State and local governments could always take the advice of the EPA, their SAB, or any scientific academy.

Federalism’s sovereignty allows for the competition of ideas from the many laboratories of innovation.  However, there is a more virtuous element of federalism – democracy; it allows the very people affected by a policy to decide that policy.

This is the case in the Trump WOTUS rule; if a water body is wholly within a state, it should be those people through their local democratic processes who determine the content of the regulation. They are the only ones who are affected, pay the cost, and can balance the value of economic advancement with environmental preservation. It is a fallacy to argue this

allows for the choice to pollute because actual contamination of the environment is covered under other remedies (i.e. tort, nuisance, etc.).

The alternative to democratic federalism is to have the judgment made for people, on their behalf. In addition to being undemocratic, this results in cynicism because it neglects the necessary community support for regulation and opportunity for political accountability. It is also unsustainable because the cost and dominion of the controlling experts always grow when they don’t have to pay for their regulation. Sustainable environmental policy requires that the people affected by the policy take responsibility for crafting it, knowing they will have to pay for it.

The Trump administration did not decide the delineation of intra versus interstate waters. The Supreme Court and Constitution did and even the dissenters in Rapanos  believed some waters were entirely intrastate. If the Trump rule scales back the delineation more than Congress enacted, it is open to judicial, legislative and political accountability. Federalism provides the same corrective at the state and local level.

Instead of the experts and regulators being the vanguard of the people by usurping their control, why don’t we give the power to the people? Let the federal agencies, experts and green-activists take their policies directly to the local community – and let the people decide for themselves. If they can get the community’s support, all the better – it will be clear who made what decisions and who is accountable. “Think globally and act locally,” is still true today.

Link – 10 th Amendment Plan violates 10th amendment federalism protectionsPaul T. Babie, Paul Leadbeter, Kyriaco Nikias et al, 4-28-2020, [Paul T. Babie is a Professor of Law in Adelaide Law School. Paul Leadbeter is a Senior Lecturer in Adelaide Law School. Kyriaco Nikias is a Research Associate and an Associate Teacher in Adelaide Law School. "Federalism Fails Water: A Tale of Two Nations, Two States, and Two Rivers by Paul T. Babie, Paul Leadbeter, Kyriaco Nikias :: SSRN," No Publication, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3587149&download=yes] BHI CONSTITUTIONAL SETTLEMENTS: ALLOCATING POWER OVER WATER In order to understand the problems federalism creates in the allocation of governmental control over a natural resource like water, it is first necessary to understand what federalism is. The first section of this part briefly examines the nature of federalism. Having set that background, we turn to the way in which the United States and Australia use federalism to divide control over water between the federal and state governments—focusing on California and South Australia. A. Federalism Federalism, first devised in the late 18th century in the time between the U.S. Declaration of Independence in 1776 and the Constitutional Convention of 1787 (considered “the seminal era of constitution writing”45), establishes “a system of associated governments with a vertical division of governments into national and regional components having different responsibilities.”46 This process is known as the “division of powers” between the national and regional levels of government.47 In the United States, the government responsible for the national interest is known as the federal government; in Australia, this level of government is known as either the federal or the Commonwealth government. In both countries, the states and their governments bear responsibility at the regional level. A further separation of power is then affected within each level of government, separating the executive, legislative, and judicial spheres—this is well known as the “separation of powers.”48 As Sutton explains: In “split[ting] the atom of sovereignty,” the Framers created American federalism, a unique way of dividing governmental power and a unique way of aggregating it. That innovation and the many compromises that came with it make the U.S. Constitution a rightly celebrated framework of government. The horizontal separations of power among the three branches of the national government, together with the vertical separation of powers between the national government and the States, provide the soundest protection of liberty any people has known.49 When a constitution separates powers, what is it separating? It is hard to say, but George Paton suggested that [a]lthough in political theory much has been made of the vital importance of the separation of powers, it is extraordinarily difficult to define precisely each particular power. In an ideal state we might imagine a legislature which had supreme and exclusive power to lay down general rules for the future without reference to particular cases; courts whose sole function was to make binding orders to settle disputes between individuals which were brought before them by applying these rules to the facts which were found to exist; an administrative body which carried on the business of government by issuing particular orders or making decisions of policy within the narrow confines of rules of law that it could not change. The legislature makes, the executive executes, and the judiciary construes the law.50 Notwithstanding the lack of clarity around the separation of powers, we can say at least this much: both the division and the separation of powers are integral parts of a federalism, a federal structure of government. 51 Laurence Tribe concludes: Just as the Colossus once strode the wine-dark waters of the harbor of Rhodes, so the separation of powers (along with its vertical counterpart, sometimes called the “division of powers” that constitutes federalism) commands and pervades American constitutional law.52 The conclusion is the same for both the United States and Australia: federalism divides and separates power, and thereby fragments53 responsibility between the federal/Commonwealth government and the state governments, each of which establishes its own apparatus of executive, legislative, and judicial power. What responsibility, though, does each level—national and local— enjoy within a federal system, and what power does each unit of government, executive, legislative, and judicial, enjoy within that system? While it depends upon the relevant constitution, two broad approaches seem common. The Canadian Constitution, for instance, confers upon the national government and the local governments a list of coextensive enumerated spheres of legislative responsibility over which that level of government enjoys exclusive power; a residue clause reserves power over any matters not otherwise enumerated in either the national or the local list to the former.54 In contrast to the Canadian model, which we might call “equality of distribution,” the Australian Constitution enumerates a list of powers reserved exclusively to the Commonwealth government,55 with any matters not otherwise found in that list reserved to the states.56 And in the United States, powers not delegated to the federal government are reserved to the states or to the people.57 We might call the Australian and American variants “asymmetrical distribution,” with federalism leaving scope for the “states as sole regulators of areas left beyond federal power.”58 Why should federalism matter? Whatever model a nation selects— equality or asymmetry—why does understanding what federalism means make a difference? Why does it matter in working out what governments may do with respect to the control of the water resource? Bork’s tyranny and Sutton’s solutions go to the heart of the difficulty: division results in internecine struggles over where the power resides over a given head of competence, often times leaving no one with the effective control over a given matter, such as natural resources.59 Sutton sets out where federalism has gone wrong in relation to the protection of human rights, but his analysis is equally applicable to natural resources; indeed, the faults of federalism may be even more acute in the case of water: What we have today is not an inevitable feature of the Framers’ vision [of federalism]. It is in reality quite remote from anything the Framers could have imagined. The original constitutional plan created largely exclusive federal and state spheres of power as opposed to largely overlapping spheres of power. Which makes sense: Why would a libertarian group of Framers, skeptical of governmental power and intent on dividing it in all manner of ways, have doubled the governmental bodies that could regulate the lives of Americans? And tripled and quadrupled them if one accounts for cities and counties? A system of largely separate dual sovereignty (federal or state power in most areas) has become a system of largely overlapping dual sovereignty (federal and state power in most areas). Good or bad, textually justified or not, this feature of American government is not going away. American constitutional law today thus permits at least two sets of regulations in every corner of the country and what comes with it: the potential for dual challenges to the validity of most state or local laws.60 This is the very problem revealed by an examination of the allocation of private power—property—over water: inefficient use and anticommons tragedies. And while the consequences of this state of affairs for fundamental rights might be dire, it is much more troubling in the case of water , for it renders impossible the potential for either federal or state governments effectively and comprehensively to manage the whole of the water resource. Instead, both levels of government can deal only with some aspects of the water resource, leading to significant problems, which we consider in Part III. Before turning to those problems, though, we first consider the way in which power over water is divided between the federal and state governments in the U.S. and Australian Constitutions and, second, how those constitutional settlements necessitate “cooperative,” “flexible,” or “marble cake” federalism between federal and state governments. B. Water 1. United States The U.S. Constitution nowhere expressly mentions water or governmental control over its allocation. As such, the powers enjoyed by the federal and state governments are either found within an express delegation of power or are reasonably implied from the powers of the federal government, which may touch upon the allocation and use of water.61 While the federal government enjoys paramount power with respect to any powers conferred upon it,62 powers either implied or not expressly granted to the federal government are reserved by the Tenth Amendment63 to the states or to the people,64 making

water largely a matter of state competence.65 a. Federal Powers The place of water in U.S. constitutional law is the subject of great complexity, allowing for extensive administrative institutional bodies with power over the allocation of water. 66 However, it is possible to summarize seven express provisions of the U.S. Constitution conferring upon the federal government power which may touch upon the allocation and use of the water resource:67 commerce,68 property,69 war,70 treaty-making,71 general welfare,72 equitable apportionment,73 and interstate compacts.74 And because of the separation of powers, it is possible to group these according to each branch of government capable of exercising them, for “the powers confided by the Constitution to one branch cannot be exercised by another. Nor is Congress ‘permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested.’”75 Thus, Congress is vested with exclusive power with respect to commerce, property, conducting war, the general welfare, and entering interstate compacts; the President with declaring war and treaty-making; and the Supreme Court with original jurisdiction to determine equitable apportionments of water and to interpret interstate water compacts between states. Still, notwithstanding the exclusive jurisdiction of the respective branches, “Congress is expressly empowered to make all laws ‘necessary and proper’ for carrying into execution its expressly delegated powers and ‘all other Powers’ vested by the Constitution in the Federal Government.”76 The powers with respect to commerce and property provide Congress the most comprehensive power with respect to water. The Commerce Clause confers power to act in furtherance of commerce, paramount to any riparian rights under state law concerning (1) control of navigable waters, and, if navigation or commerce is affected, the non-navigable waterways at the headwaters or non-navigable tributaries of such waters; (2) protection against floods; and (3) the development of a watershed.77 The Property Clause confers upon Congress the unlimited authority to control the use of federal public lands, which, while allowing states to create rights to use water in streams on such land, does not allow for the rights of the United States to be thereby destroyed.78 Congress has used this power to recognize the prior appropriation doctrine for waters on public lands in the western United States, and to establish the federal property right in electrical energy generated by water falling through a federal dam.79 The presidential powers with respect to treaty-making and declaring war (and, indeed, the power of Congress to wage it) have received little judicial attention, although the former power has “existing and potential significance, particularly as to international streams. Also, by treaties with western tribes of Indians, the United States has reserved rights to use of waters and exempted them from appropriation under state laws.”80 The Supreme Court’s original jurisdiction with respect to equitable apportionment of interstate waters between states, when combined with the interstate compacts power of Congress, establishes an important power used extensively throughout the history of the republic. The former “is a doctrine that was created by the Supreme Court to ensure that each state can enforce its right to an equal share of common waters.”81 When operating in conjunction with the congressional power to enter interstate compacts, this establishes the principle that [e]very state has a right to an equal share of interstate waters. When states dispute the share of water to which they are entitled, the dispute can be resolved by interstate apportionment compact, Congressional apportionment, or an equitable apportionment suit with the Supreme Court. Equitable apportionment cases arise under the Court’s original and exclusive jurisdiction. Original jurisdiction allows states to file a lawsuit directly with the Supreme Court rather than starting at a district court, appealing to a circuit court, and appealing again to the Supreme Court. Further, when the lawsuit is between multiple states, as in an equitable apportionment case, the Supreme Court has exclusive jurisdiction. A state that is being sued cannot claim sovereign immunity to avoid an original jurisdiction action because Article III . . . acts as a waiver of any state sovereign immunity. In an equitable apportionment lawsuit, state citizens are the beneficiaries of any relief granted by the Supreme Court. But the Eleventh Amendment prohibits citizens from suing another state over interstate water rights. Thus, to avoid violating the Eleventh Amendment in equitable apportionment cases, states act in a parens patriae capacity even though state citizens are the ultimate beneficiaries.82 This dual interstate compacts-equitable apportionment power—as demonstrated in the Arizona v. California litigation, which began in 1931 and remains ongoing83—provides for the interaction of federal judicial and legislative powers, cultivating a fertile source of potentially cooperative or flexible federalism. We will return to this issue in Parts II and III.84 b. State Powers When the federal government legislates within its sphere of competence, the Supremacy Clause ensures that such law is the “supreme law of the land.”85 This power, operating in concert with the preemption doctrine developed by the Supreme Court of the United States, results in relevant federal legislation preempting state law, even in the case of state and federal laws that conflict with one another.86 As a general matter, in the absence of any federal law, however, a state law will operate, but only until such time as the federal government might legislate. Alternatively, where conflict might otherwise occur, the two spheres of government can cooperate with respect to a given matter.87 The question then arises as to which powers the states exclusively enjoy in relation to water. An initial distinction must be drawn between interstate waters (flowing through more than one state) and those entirely within one state. In the case of the former, “on the whole, the federal government’s powers have been used to guide and control the development of major streams in the country.”88 In the case of the latter, as the owner of all resources “occurring wholly within [its] borders,”89 and because the Tenth Amendment ensures that undelegated powers are reserved to the states , a state has “greater responsibility for the distribution and use of waters locally.”90 The powers reserved to the states with respect to water fall into three broad categories. First, the “police power” allows for the regulation of “various water activities for the general welfare, such as the production of water for domestic purposes or the control of sewage disposal,”91 and “for the protection of health, safety, and welfare, including [public] trust resources, such as fish and wildlife.”92 Second, states enjoy “the power to determine the allocation and distribution of both surface and underground waters within the state. The states are permitted to adopt whatever system of water law they choose, including the law for those lands which have passed from the federal government to the states, provided it does not conflict with the federal government’s powers over navigation.”93 This allows for the entirety of state water resources law, which governs the allocation and use of water not otherwise subject to federal jurisdiction.94 And third, states may exercise “powers to engage in interstate action with respect to water use and development.”95 Of greatest significance here are those instances of cooperative or flexible federalism resulting in interstate compacts, as we will see in Part III in relation to the Colorado River Compact of 1922.96 b. State Powers As in the United States, Commonwealth legislation within its sphere of competence enjoys paramountcy over state legislation.129 Still, apart from the commerce power and its limitation in relation to the reasonable use of waters within the states, and from the potential post Engineer’s Case use of Commonwealth noncoercive and coercive powers with respect to water, the constitution expressly says nothing further about Commonwealth power with respect to water.130 As such, by virtue of sections 106–108, the constitution left “the management of water resources largely in the hands of the states” as a consequence of their plenary legislative power over natural resources.131 Jennifer McKay summarizes those powers this way: “the general position is that the states have plenary legislative power over management of water resources, subject to any restrictions in the Constitution, including any inconsistent federal legislation on the matter.”132 The states therefore retain power to establish their own body of water resources law with respect to the allocation and use of water for land use, agriculture, forestry, town planning, and floodplains.133 The states have exercised and continue to exercise these powers extensively and aggressively over the course of federation in an effort to “nationalize” water as part of a comprehensive body of law.134 These efforts further the state effort to replace the inherited English common law doctrine of riparian rights with state control and legislative water use rights.135 In both the United States and Australia, the federal system splits authority over water resources between federal and state governments, leaving neither capable alone of dealing with the integrated whole. This necessitates cooperative agreements between the federal and state governments. We turn now to the principle agreements used in an attempt to foster cooperative federalism in the Colorado River and Murray-Darling Basins.

Link – Fracking A fracking ban would cause massive debates over water federalism and energy federalism.Craig 13 — Robin Craig, Professor of Water, Energy, and Climate Change at the University of Southern California School of Law, PhD in Science from the University of California, Santa Barbara, J.D. from the Lewis & Clark School of Law, 2013 (“HYDRAULIC FRACTURING (FRACKING), FEDERALISM, AND THE WATER-ENERGY NEXUS,” Idaho Law Review, Volume 49, Available Online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2217936, Accessed on 07-13-2021, Jackson Hightower)Developing water policy and energy policy in tandem, however, raises federalism issues that are relevant to the United States’s increasing reliance on fracking and shale gas to supply its natural gas needs. Fracking has already been the subject of serious federalism debates , but these debates have generally focused on whether an individual state or the federal government is the more appropriate regulator of fracking and its environmental impacts—for example, the debate has concentrated around issues of how to fit fracking into more traditional governance structures for on-shore energy development, water resource management, and environmental regulation, all of which suggest that states should be the primary regulators. Viewing fracking through the lens of the water-energy nexus, however, both adds a broader context to this federalism debate and suggests that fracking should constitute both a significant focus of and potential testing ground for the increasing federal interest in integrating water management and energy policy .

It's a major issue for the states.Craig 13 — Robin Craig, Professor of Water, Energy, and Climate Change at the University of Southern California School of Law, PhD in Science from the University of California, Santa Barbara, J.D. from the Lewis & Clark School of Law, 2013 (“HYDRAULIC FRACTURING (FRACKING), FEDERALISM, AND THE WATER-ENERGY NEXUS,” Idaho Law Review, Volume 49, Available Online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2217936, Accessed on 07-13-2021, Jackson Hightower)Both water and energy already generate federalism issues on many levels . As a gross (but nevertheless fairly accurate) generalization, the following aspects of energy extraction, production, and transportation are considered entirely or predominantly the province of the federal government: nuclear power, hydropower production and facility construction on the navigable waters, offshore oil and gas production more than three miles out to sea, interstate electricity transmission, and interstate oil and gas transportation. Environmental impacts from energy production and facilities are also subject to the requirements of a number of federal statutes, including the federal Clean Air Act and Endangered Species Act as well as the Clean Water Act and Safe Drinking Water Act, most of which employ a cooperative federalism arrangement of imposing federal minimum protections but allowing states to take over various programs and make them more stringent, if desired.129Nevertheless, most other aspects of energy production and distribution, including facility siting, are predominantly subject to state law , and states, as noted in Part II, can contribute environmental regulations as well. As a result, many commentators view hydraulic fracturing for shale gas as an “industry regulated first and foremost by [the] states.” 130 Proponents of state-based regulation of fracking argue that “state regulators better understand the unique social, hydrologic, and geologic characteristics of their shale basins” and that “state regulations best balance the economic and environmental benefits and risks of hydraulic fracturing.”131 Indeed, even proponents of federal regulation argue most strongly for extensions of cooperative federalism so that states can continue to play a prominent role in regulating fracking.132In sharp contrast, authority over water allocation—the law governing who has the right to remove fresh water from its natural watercourse and to use that water for some consumptive purpose, such as irrigation, drinking water, or industrial manufacturing—is deemed, sometimes obsessively , to belong to the states .133 Indeed, the exact principles and requirements governing the withdrawal and consumptive use of water vary considerably from location to location.134 Of course, water allocation is not a pure example of exclusive state control, as Reed Benson has discussed at length. 135 Nevertheless, the federal government generally goes to significant effort to preserve states’ rights with respect to water allocation.136 Thus, from the perspectives of both traditional regulation of onshore oil and gas development and traditional regulation of water law, water resource issues created by hydraulic fracturing would appear to be primarily the states’ problems to deal with—subject, perhaps, to the newer but well-entrenched mode of cooperative federalism for fracking’s direct environmental impacts. This view of fracking’s federalism, however, ignores the fact that fracking operations are never

just individual energy production operations with local environmental impacts. Instead, fracking should also be contextualized as part of the much larger— national level—policy conundrum that arises at the water-energy nexus, about which the federal government assumes, and probably needs to assume, a much more dominant role.

Link – Offshore Drilling Offshore drilling has always linked to the constantly evolving federalism.Miller ‘83, [Daniel S. Miller, Research Fellow, The Conservation Foundation, Washington, D.C.; J.D. 1983, School of Law (Boalt Hall), University of California, Berkeley; M.C.P. 1983, Dep't of City and Regional Planning, University of California, Berkeley; B.A. 1978, University of Colorado. "Offshore Federalism: Evolving Federal-State Relations in Offshore Oil and Gas Development," HeinOnline, https://heinonline.org/HOL/LandingPage?handle=hein.journals/eclawq11&div=26&id=&page=]Regulatory power over the submerged lands adjacent to the nation's coast has long been jointly exercised by the states and the federal government. Beginning in 1947 when the Supreme Court stripped the states of title to the submerged lands of the marginal sea' in United

States v. California,2 the federal/state balance of power has shifted several times . Most recently, the United States Court of Appeals for the Ninth Circuit held in California v. Watt 3 that a federal oil and gas Lease Sale in the Outer Continental Shelf (OCS)4 "directly affects" an adjoining state's coastal zone. Consequently, under the federal Coastal Zone Management Act,5 an OCS Lease Sale must be conducted consistently "to the maximum extent practicable" with the adjoining state's approved Coastal Management Program. Between those two-court decision, several pieces of national legislation shaped the evolution of "offshore federalism." This Comment traces the several stages in that evolution. The first stage followed the 1845 Supreme Court case of Pollard's Lessee v. Hagan6 and its progeny, which strongly supported the proposition that, as an incident of sovereignty, the states held title to the submerged land of all navigable waters, including the marginal sea. The second stage arose when the federal government, at the urging of Secretary of the Interior Harold Ickes, challenged state title to the seabed of the marginal sea. This stage ended with the decisions in United States v. California which denied not only the states' claim of ownership, but also that the issue was one of title at all. The Supreme Court formulated instead the "paramount powers" doctrine, which gave the federal government title to and plenary power over the marginal sea. United States v. California prompted the Congressional response which formed the third stage in the evolution of offshore federalism. In 1953

Congress enacted both the Submerged Lands Act7 and the Outer Continental Shelf Lands Act (OCSLA). 8 The first returned to the states title to, and management authority over, the marginal sea's submerged lands;9 the second declared that the subsoil and seabed of the Outer Continental Shelf "appertain to the United States and are subject to its jurisdiction, control, and power of disposition."' 0 The OCSLA set up a scheme for federal leasing of OCS oil and gas resources; it allowed the states neither participation in leasing decisions, nor assistance to cope with the onshore impacts of OCS development."I These statutes created a geographic dual federalism, with the states retaining control over the marginal sea's resources and the United States possessing paramount power over the OCS. This situation persisted until 1972, when the Coastal Zone Management Act

(CZMA)12 replaced "geographic dual federalism" with " cooperative federalism." ' 13 The CZMA allows states to develop coastal management plans which, when approved by the federal government, bind applicable federal policies unless explicitly overruled by another federal law. The 1976 amendments to the CZMA 14 and the 1978 amendments to the OCSLA' 5 reaffirmed this cooperative relationship and strengthened the states' role in OCS development. The fifth, and current, stage in offshore federalism is marked by Carter and Reagan administration attempts to reduce state influence. The perceived need to reduce American dependence on foreign oil, as well as the desire to enhance short-term federal revenues, has encouraged the federal government to try to overrule or ignore coastal state environmental policies. The Department of the Interior, primarily responsible for developing and managing OCS resources, has spearheaded these administration attempts. California v. Watt arose when the state of California judicially challenged the Interior Department's refusal to comply with its request that certain lease tracts be deleted from a proposed federal OCS oil and gas lease sale. California had sought the deletion to protect marine resources and environmentally sensitive animal habitat areas. The Ninth Circuit's opinion in Calfornia v. Watt is an important development in offshore federalism because it construes the CZMA's "federal consistency" provisions' 6 for the first time. The court's holding, that an OCS Lease Sale "directly affects" California's coastal zone and thus must be conducted consistently with California's coastal management plan, accords with the CZMA's brand of federalism.' 7 However, the opinion also contains dicta defining the phrase "consistent to the maximum extent practicable" in a way that weakens the states' role in the CZMA consistency process and which is contrary to the Congressional intent found in the CZMA and the 1978 amendments to the OCSLA. This Comment's main thesis is that the asymmetrical distribution of Outer Continental Shelf oil and gas development costs and benefits causes coastal states to be generally more responsive than the federal government to the environmental concerns posed by such development.' 8 Typically, students of federalism and environmentalists have believed that the federal government is more protective of these sorts of concerns than are the states. However, the recent history of OCS development, 19 and in particular, the respective positions of California and the Interior Department in California v. Watt, refutes this proposition. Within the federal government itself, the Congress has generally favored a strong state role in offshore federalism , while the executive and judicial branches have been relatively nationalistic. 20 Finally, the Comment concludes that the CZMA's cooperative federalism, if properly interpreted, is more protective of environmental concerns than either exclusive state or federal control of Outer Continental Shelf resources. The Supreme Court granted certiorari on both the Ninth Circuit's "directly affecting" holding and its consistency dicta in Calfornia v. Watt.2' Oral argument was on November 1, 1983, and a decision is expected in early 1984. The Court's disposition of the case could strengthen coastal environmental protection by requiring that OCS development be consistent with state coastal planning. On the other hand, the Court could issue a nationalistic opinion which would undermine Congress' intent to give the states the leading role in determining OCS policies that affect their coastal areas. Such a nationalistic decision could well have seriously adverse consequences for the environment and natural resources of the nation's coastline.

Coastal energy development has always linked to federalism, increased federal role guarantees federal-state conflicts especially in coastal areas.Kanouse ‘80, ["Achieving Federalism in the Regulation of Coastal Energy Facility Siting on JSTOR," No Publication, https://www.jstor.org/stable/24112539?seq=1#metadata_info_tab_contents] BH

During the past decade, many states have adopted land use and environmental protection statutes designed to minimize the environmental harms associated with the siting and construction of large-scale energy facilities . ' These statutes may regulate the siting of power plants2 and other large-scale facilities3 or protect critical natural resources.4 This legislation reflects a growing recognition that government must take an active role in making such decisions if the adverse

environmental consequences of land development are to be avoided. Although some federal statutes have implications for land use decisionmaking 5 only state and local governments have thus far adopted direct land use controls over nonfederal lands.

But during the past five years, policymaking on energy production , marketing, and consumption-apart from energy facility siting-has shifted from the private sector to the federal government . 6 Federal controls on private sector energy projects are designed to facilitate the development of a coherent national energy policy that will assure adequate supplies of energy at a reasonable cost to consumers. 7 The federal interest in the siting of energy facilities that play

a role in national energy policy often conflicts with state and local controls on the construction and operation of energy facilities. The

growing scarcity of inexpensive energy resources, 8 the interdependency between energy and land uses, 9 and the uncertainties that plague

governmental energy policy' ° guarantee more frequent and serious federal-state disputes in the years to come . The potential for such

federal-state conflicts and the need for an effective and predictable mechanism to resolve disputes are particularly crucial in the coastal areas . The coastline not only contains desirable sites for many types of large-scale energy facilities, but is also subject to recreational and other resource demands."I In addition, many fragile natural ecosystems along the coastline require governmental protection. The recent Sohio Project controversy illustrates the complexity and sensitivity of federal-state policy conflicts in coastal energy facility siting. Standard Oil of Ohio (Sohio) proposed to ship crude oil from Valdez, Alaska, to Long Beach, California, and then to pipe the oil from Long Beach to Midland, Texas.12 Although the Federal Government generally supported the Sohio Project, 13 several California governmental agencies were more cautious in their appraisals and questioned whether the project was truly in the national interest. 14 Nonetheless, federal-state coordination in assessment of the Sohio Project was considered effective by some observers until mid-1978.' 5 In March 1979, after expending fifty million dollars over a five year period on reports and plans necessary to secure the approximately 700 federal, state, and local permits required for approval of its one billion dollar project, 16 Sohio announced its intention to abandon the project 17 at a time when there were rising fears in government and the public about the possibility of another oil supply crisis.' 8 Although Sohio claimed that its decision to abandon was the result of costly delays caused by environmental regulatory agencies, ' 9 at the time of Sohio's announcement, only two key permits remained to be secured from California, and both of these were expected to be issued "within days." 20 Following Sohio's announcement, a bitter debate ensued between federal and state officials over whether California's regulatory agencies caused Sohio to abandon the project. 2' Federal and state agencies also voiced considerable disagreement over the reasonableness of the air quality offset policy 22

that California imposed upon Sohio. 23 Federal state interaction deteriorated to the point where Secretary of Energy Schlesinger announced that he was "sympathetic" to federal legislation preempting state law.24 To head off this possibility, California officials promised enactment of a state measure that would require all lawsuits against the Sohio Project to be filed within thirty days of final agency action and provide for expedited judicial review of such suits. 25 During the next two months both federal and state agencies made efforts to save the pipeline project. 26 Despite these efforts, on May 25, 1979, Sohio reaffirmed its decision to abandon the project, stating

that five years of delay had made it no longer economically attractive, with estimated completion costs rising from an original $750 million to one billion dollars. 27 Under the Federal Coastal Zone

Management Act of 1972 (CZMA), 28 coastal states are charged with responsibility to protect the coastline. 29 The CZMA is an effort to accommodate both federal and state policies on coastal zone management 30 in a single regulatory program.3' The CZMA provides, first, for the formulation of a state coastal zone32 management program that incorporates both state and federal policy,33 and second, for review of federally supported or conducted development projects to minimize conflicts with the state program.34 The latter

provisions, referred to as the "consistency clause" in the remainder of this Comment, are an effort to assess and balance federal and state perspectives on particular coastal resource management decisions . 35 The consistency clause includes language explicitly directed toward resolving federal-state conflicts over energy facility siting.36 Without a specific congressional formula for sharing power between the states and Federal Government, a federal-state regulatory dispute is traditionally resolved by the preemption doctrine under the supremacy clause. 37 Preserving the integrity of state land use programs while not impairing federal efforts to address the energy problem, however, requires a more carefully

tailored balancing mechanism than litigation under the supremacy clause. The potential for conflict between state regulatory programs and federal energy programs necessitates a clear congressional formula for sharing power between the states and the Fed eral Gov ernment. The major provisions of the CZMA40 governing state coastal program development and administration are sections 305, 306, and 307.41 Section 305 governs program development and sets forth the conditions that a state must meet in order to receive federal funding for developing a coastal program.42 Section 306 governs the approval and implementation of state coastal programs and sets forth the findings that the Office of Coastal Zone Management (OCZM) must make for a state to receive federal approval.43 Section 307 addresses federal-state relations, both in the development and administration of the program. 44 Collectively, these three sections consitute constraints upon the program that a state can adopt. They are essentially procedural, requiring coastal programs to include certain management processes without imposing substantive standards. 45 A possible exception to this generalization is the provision addressing the national interest in energy facility siting.46 Within the procedural constraints set forth in sections 305, 306, and 307, a state has considerable latitude in adopting a coastal program. The Act's congressional

findings are not specific and embrace several competing social goals, including industrial development, recreation, and environmental protection. 47 States desiring either to restrict coastal development and protect the coastal environment or to promote development can readily find support in the congressional findings.48 Since the CZMA does not impose a uniform federal coastal program, it has been heralded as an achievement in federalism. 49

Link Magnifier – Single Issues States are sensitive on water – single issues hold large implicationsWarren 16 (Cara Cunningham, Assistant Professor of Law, University of Detroit Mercy School of Law and LL.M. Candidate (2017), University of Toronto Faculty of Law (Constitutional Law Thesis). 9-6-16 “AN AMERICAN RESET — SAFE WATER & A WORKABLE MODEL OF FEDERALISM” Duke Environmental Law & Policy Forum https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1334&context=delpf pp. 99-102 JO)As noted above, all U.S. states, except Wyoming, have gained primacy with respect to the Safe Drinking Water Act. In 2004,

Scheberle described the federal-state working relationship as “coming apart and contentious,” although that was a slight

improvement from her 1998 study.338 She noted that “state officials do not perceive EPA as fully understanding public water suppliers, despite the agency’s concerted effort to reach out to stakeholders.”339Moreover, some states have gone so far as to assert their resistance to federal environmental directives “by adopting laws that prohibit state regulations from exceeding minimum federal standards,

thus converting federal floors into ceilings.”340 As of 2004, this was true for no fewer than twenty-four states.341 This could be the case because “[b]y EPA’s own estimate, ‘no state, even after receiving a fee increase, has sufficient funding to meet all of the technical requirements of the Safe Drinking Water Act.’” The NRDC and other reports detailing states’ non-compliance with the Lead and Copper Rule protocols also can be considered as part of the context. c. States’ Aggressively Challenging Federal Agency Authority in Court “[S]tate suits against the federal government are on the rise,”343not only challenging the constitutionality of federal statutes but also the way in which federal agencies are administering federal law.344These state challenges are occurring in a wide variety of fields.345Texas, for example, has filed at least forty-three suits against the federal government since President Obama took office.346 These are many suits related to climate change and air and water quality, as well as voter identification laws, immigration, redistricting, women’s health, gender equality, and business regulations.347It is not the goal of this article to explore these cases but rather to note their existence in general and the spirit they reflect. Some states are taking an adversarial approach against federal authority and the assertion of federal agency authority. At the same time, Grove suggests that the Supreme Court has “signaled its endorsement of such lawsuits”348 when in Massachusetts v. EPA, The Court upheld the State’s standing to challenge the EPA’s failure to regulate greenhouse gas emissions, declaring that Massachusetts was entitled to special solicitude in our standing analysis. As scholars have observed, the decision in Massachusetts suggests that states should be accorded special access to federal court in order to challenge federal agency action. That is, states have a special role in monitoring and improving federal agencies’ implementation of federal law. Many scholars have welcomed these state-led lawsuits as a crucial new check on the administrative state.349This behavior would be a significant backdrop to any EPA decision to intervene in Michigan. As noted above, federal funding has been a key ingredient to encourage state cooperation in national programs. This situation is changing as federal funding wanes and new sources of state revenue are appearing. States and localities may rely on a newly developing, world-wide trend to issue so called “green bonds.”350 They “are structured in the same way as other bonds, but the insurer self declares that the proceeds will be used to fund environmentally beneficial projects.”351 They can range from “general obligation bonds (backed by the issuer’s ‘entire balance sheet’), revenue bonds (backed by specific revenue streams such as water fees) and securitized bonds (backed by a pool of projects).”352 The use of green bonds has skyrocketed from “$500 million in 2010 to $3.8 billion in 2015.”353States such as California, New York, Massachusetts, Iowa, and Hawaii have used green bonds to fund a whole host of projects, including loans to municipalities for drinking and waste water infrastructure upgrades.354The conclusion with respect to states is that they may not be the regulator the cooperative federalism model assumes. The potential for lax enforcement may stem from a state’s involvement in local water, its disrespect for the federal scheme and federal authority, or the fact that states are becoming increasingly more self-reliant in terms of experience and funding.

Federal level regulation can vary wildly. Leads to gaps in regulation Koppel 2012 (Joshua M., Law Clerk to the Honorable Norma L. Shapiro, United States District Court for the Eastern District of Pennsylvania. J.D., 2012, University of Pennsylvania; B.A., 2008, Brandeis University, “Federal Common Law and the Courts’ Regulation of Pre-Litigation Preservation”, September 30, 2012, Stan. J. Complex Litig, https://ssrn.com/abstract=2154484 //JK ) Concluding that the federal courts have the power to create a pre-litigation duty of preservation and corresponding sanctions for breach of that duty does not end the inquiry as to what law the federal courts should apply. In diversity cases, federal courts must ask whether Erie requires them to apply state preservation law. Even in cases arising under federal law, federal courts might adopt state law by incorporation in order to ensure uniformity between the federal and state courts. Not all states impose a duty on parties to preserve relevant evidence from the time that litigation is reasonably foreseeable. In Florida, for instance, at least some state courts have held that there is no duty to preserve evidence until litigation actually arises and have rejected a “common law duty to preserve evidence before litigation has begun.”74 In other states, although the trigger of the duty to preserve might be the same as that under the prevailing federal common law, there is

variance in terms of what sanctions may be imposed for spoliation. In Large v. Mobile Tool International, Inc., the District Court for the Northern District of Indiana considered the application of harsher spoliation sanctions under federal law, even though state law may have “preclude[d] any sanction greater than an evidentiary inference and the associated jury instruction.” 75 Given differences between federal common law and state law,76 federal courts must consider whether the federal common law can properly be applied in cases arising under the courts’ diversity jurisdiction, and what the substance of the federal common law should be in federal question cases. A. The Application of Federal Preservation Law in Diversity Cases Before applying a federal preservation rule in a case arising under the court’s diversity jurisdiction, a federal court must determine that doing so will not run afoul of Erie’s lesson that a federal court is bound by state common law just as it is bound by state statutory law. 77 The federal courts generally have not

considered whether Erie dictates the application of state preservation and spoliation law. Rather, where they have given any justification for their application of federal law, they rely on broad assertions that spoliation is an evidentiary issue and that “federal courts generally apply their own evidentiary rules in both federal question and diversity matters.”78 The federal courts have sometimes

compared application of federal law in this area to their application of the Federal Rules of Evidence in diversity cases.79 However, very different standards apply when a court considers the application in a diversity suit of a validly enacted law like the Federal Rules of Evidence on the one hand, and judge-made federal common law on the other.80 The federal courts are mistaken merely to assume that federal preservation law applies in diversity cases. The Supreme Court’s current understanding of the Erie doctrine is most clearly laid out in Hanna v. Plumer. 81 In Hanna, the Court held that a federal court must apply any valid

controlling federal statute or federal rule.82 The Court went on to explain, in dictum, that if no federal statute or federal rule applies, the federal court must apply an outcome-determination test, asking whether the application of federal law would materially affect the character or result of litigation.83 The court’s application of this outcome determination test is to be guided by the twin aims of Erie: “discouragement of forum-shopping and avoidance of inequitable administration of the laws.”84 A federal court need only apply state law where doing so would further these two goals. As discussed above, the federal law regarding the pre-litigation duty to preserve evidence is not codified in a law or in the Federal Rules of Civil Procedure, but is a judge-made common law rule. Therefore, the federal obligation of preservation creates an Erie question to be analyzed under the full analysis laid out by Hanna’s dictum. The application of the federal law of preservation may, in some cases, materially affect the outcome of a case. Spoliation sanctions may be as severe as granting summary judgment for the party disadvantaged by the spoliation. If a federal court finds that a party breached its duty of preservation where a state court would have found no such duty, or if a federal court imposes a stricter sanction on a spoliating party than a state court would have, that application of federal law may change the outcome of a case. Furthermore, the application of federal common law in this context may lead to forum shopping. A plaintiff who suspects that a defendant has destroyed evidence

that may be relevant to litigation has an incentive to file his lawsuit in the forum that recognizes such destruction as spoliation and that punishes it most severely. A defendant considering whether to remove an action to federal court would likely consider whether doing so may leave itself or the plaintiff liable for spoliation sanctions. The application of federal preservation law may also, in certain circumstances, result in the inequitable administration of the laws. Generally, if more relevant evidence is preserved, a court is more likely to reach a just and equitable resolution of the claims. To the extent that federal preservation laws are stricter in requiring the preservation of evidence, the application of a federal preservation rule might push litigation toward a more equitable resolution. However, federal preservation rules may also be more lenient than state preservation law. In that case, the application of a federal rule might allow a party that has breached the state duty of preservation to prevail on state law claims where it would not have done so had the litigation been located in state court. A more lenient duty of preservation will generally benefit the party that controls more evidence—in state law tort actions, often the defendant. The application of a federal rule of preservation may run afoul of Erie, therefore, by materially changing the result of litigation in a manner that will lead to forum shopping and , in some circumstances, the inequitable administration of the laws.

Uniformity of policy under a centralized decision ultimately fails, water issues are not national in scope.Andrew P. Morriss, Bruce Yandle, Roger E. Meiners et al, January 2001, "," (Professor Morriss received his AB from Princeton University, his JD and Master of Public Affairs from the University of Texas at Austin, his PhD in economics from Massachusetts Institute of Technology, and his Master of Educational Psychology from Texas A&M University. Bruce Yandle is a Distinguished Adjunct Fellow for the Mercatus Center at George Mason University. He specializes in public choice, regulation, and free-market environmentalism. Roger E. Meiners is the John and Judy Goolsby and E.M. (Manny) Rosenthal Chair in Economics and Law at the University of Texas at Arlington, and had received a Ph.D. in economics from Virginia Tech and J.D. from the University of Miami. No Publication, https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1303&context=facscholar) BHSince 1970, pollution control in the United States has centered on national level regulatory approaches built on federal command-and-control regimes. Enacted in reaction to well-publicized "failures" of markets, common law, and state and local regulation such as the "killer smogs" of the 1950s and 1960s' and the

"burning" of Cleveland's Cuyahoga River in 1969,2 modern environmental statutes shifted authority away from states, local governments, and

private property holders to the national government. Nationalization has its costs, however. In particular, the top-down approach risks transforming the goal of environmental regulation from the laudable one of protecting and enhancing environmental quality to the less laudable one of special interest rent-seeking . Centralized decision making lowers the cost of capturing agencies (there is only one to capture) while increasing the benefits (capturing one is capturing all). Shifting decisions to the national level, therefore, increases the incentives for capture unless institutional safeguards are added. Recent water quality regulatory initiatives by the federal Environmental Protection Agency threaten to transform water pollution control and make rent-seeking more prominent. Air pollution controls have been especially subject to rent seeking rules that have retarded progress and increased the cost of pollution controls implemented, all to the benefit of special interests. 3 On the other hand, water quality pollution control regulations have been relatively immune from rent-seeking because their decentralized implementation prevented

polluting special interests from using national level regulations to override local interests in clean water. At the same time, competition among states and localities has limited local special interests' ability to gain concessions from state governments. Recent " reforms" of EPA 's water quality program, however, threaten the delicate balance that has produced water quality improvements. 4 We argue that

water quality is better improved by further decentralizing water pollution control efforts rather than by increasing centralization. Because EPA's recent regulatory changes move water pollution control in precisely the opposite direction, we contend that they should be significantly modified or abandoned. Section I reviews the history of federal and state regulation of water quality and highlights the delicate balance of authority that has emerged between various levels of government. Section II examines why federalism is particularly important in water quality efforts. Section III summarizes the EPA's recent water quality regulatory initiatives. Section IV offers alternatives to EPA's approach, emphasizing common law and property rights solutions to continuing water quality problems. I. EVOLVING FEDERALISM IN WATER QUALITY REGULATION Water pollution regulation in the United States has long been a matter for a federal-state partnership. The modern Clean Water Act largely relies on a "command-and-control" approach to limiting the discharge of effluent in waters through permits. Due to differences in implementation, the top-down command lines in water pollution control have been less clear than in other areas of pollution control.5 These differences emerged because although the Clean Water Act gives the federal EPA authority over technology-based standards, it also gives the states authority over the issuance of permits. 6 The degree of federal control over state permit programs, an issue that has generated substantial litigation over the years,7 has remained unclear.8 Although early federal water pollution control measures required states to take some minor specific actions, such as designating water bodies as suitable for recreation, propagation of aquatic life or other specific classifications, the first major federal legislation on the subject, the Water Quality Act of 1965, left water quality issues primarily to the states. 9 The centralizing era of federal water pollution control efforts did not begin until Congress passed the Federal Water Pollution Control Act Amendments, commonly known as Clean Water Act ("CWA"), in 1972.10 Although the CWA required that its goal of enhancing and

protecting the quality of the nation's waters be achieved while respecting the authority of the states to regulate the use of their own waters,' the Clean Water Act brought an increased federal role to the partnership.12 The CWA broadened state requirements for establishing water quality standards ("WQSs") and directed the newly created federal Environmental Protection Agency ("EPA") to develop and publish, in "consultation with appropriate Federal and State agencies and other interested persons,... criteria for water quality accurately reflecting the latest scientific knowledge" on a wide range of subjects.13 Based on these numerical water quality "criteria," the CWA then required states to develop WQSs that apply to interstate waters and submit them to the Administrator of the EPA.' 4 The Administrator reviewed states' WQSs to ensure that the states' WQSs were not inconsistent with the requirements set by the federal statute.' 5 (If states fail to submit proper standards, the Administrator may impose a WQS.)16 The CWA structure thus significantly increased the federal role in determining water pollution policy by providing the federal government with broad authority to require state governments to act in accordance with federally established criteria. Nonetheless, the significant discretion provided to states "indicates the Congress intended that states rather than the federal government should make most basic decisions about water policy and related land uses."'1 7 Indeed, until recently, EPA afforded "states considerable latitude ... to set WQSs that differ from EPA's own recommendations, or from those established by other states. Thus, from a national perspective, the system of ambient standards established under the CWA is characterized by considerable variation among states, even those in the same geographic region with similar or identical environmental conditions, and even those that share a single, interstate water body."'18 Although these WQSs constitute a major portion of the nation's water pollution control system, they have been implemented largely through a permit program, the National Pollutant Discharge Elimination System ("NPDES"). The NPDES restricts the entry of pollutants into state waters by requiring point-source polluters to obtain permits from the states.19 The permits specify which pollutants, and how much of each pollutant, may be emitted from sewage treatment plants, factories, or other pollution sources into specific bodies of water.20 States have significant discretion in designing these permit programs.2' While the federal government designs the technology standards for particular effluents, it is the states that actually issue the permits. The states thus are the decision-makers that choose the specific limits included in each permit. The permit programs are large - over 350,000 permits have been issued and the number is growing rapidly.22 Because of this large volume, federal oversight of state decision making is necessarily limited as a matter of practice - EPA simply lacks the resources to conduct a thorough review of each permit decision.23 The technology-based point source regulation of the NPDES permits is supplemented by water-quality-based regulation. The CWA requires states to identify water bodies in which the NPDES permits are not sufficient to achieve water quality standards and to establish a priority ranking, which considers the severity of the pollution and the designated use of the water.24 As part of this process, states must establish the "total maximum daily load," or TMDL, for specified pollutants.25 TSMDLs specify the amount of particular pollutants allowable in a particular waterbody and allocate the pollutant load to sources.26 Until EPA 's recent regulatory initiatives, the TMDL process did not have a major impact on state water quality decisions . 27 Indeed, the TMDL process and water quality sections of the CWA were "virtually ignored by the states and the federal Environmental Protection Agency." a Note that this does not mean that the states ignored water quality issues, merely that they did not address them through the CWA mechanism. The states' role in the federal/state partnership yielded a form of environmental command-and-control regulation with far more flexibility than found in the comparable air pollution statutes.29 Just as with air pollution control, the EPA sets effluent guidelines on a point-source basis for each major U.S. industry. And just as with air pollution, to obtain an operating permit, industrial operators must demonstrate that satisfactory pollution control machinery will be in place and operating.30 With EPA approval, state pollution control agencies are given delegated authority to issue permits, monitor and enforce outcomes for both air and water pollution.31 Unlike the air pollution statute, however, the CWA does not set national ambient water quality standards to be met in each body of water across the nation.32 States classify the streams in their jurisdictions, and neither the classification schemes nor the criteria used are uniform across states . 33 As a result, compared with the air pollution control regime, it has been costly, if not impossible , for an industry to obtain a uniform regulatory outcome by plying the halls of EPA and Congress. Uniform national command-and-control regulation of the sort employed for air quality, and until now avoided by water quality regulation, enables polluting industries to cartelize within a regulatory regime. Typically, the regulation requires a reduction in output, and so regulators limit entry by imposing regulatory barriers to entry in the form of increased costs. This effect is confirmed both by theory and empirical evidence. The possibility that national regulation could yield cartel profits was first described in theoretical terms by Nobel economics laureate James Buchanan and Prof. Gordon Tullock.34 Empirical analysis found evidence of profitable regulatory cartels in air pollution.3 5 Significantly, similar attempts to identify cartel-derived profits in water pollution control were not successful.36 This statute-derived location flexibility for water quality issues yielded a competitive playing field where water-using industries sought lower cost sites and states sought to employ lower cost ways to achieve environmental goals. The result was a "race to top" in water quality produced by the decentralized (at least relative to air quality regulation) competitive environment. EPA's changes in water quality regulations eliminate important cost-reducing competitive forces present in federal water pollution control since 1972. Under the new regime, EPA is the gatekeeper for entry and expansion of industries nationwide. A sense of the scope of change can be seen in EPA's own estimate that 40,000 TMDLs will have to be set in the coming years, "each of which will result in more stringent controls on all sources of pollutants. '37 Political-favor seeking is heightened as firms seek to gain competitive advantages by means of uniform federal regulation. As a result, both water quality and economic efficiency are likely to suffer . This is not to suggest that the prior regime was optimal. Far from it - the old rules created numerous perverse incentives for both states and EPA. For example, the pre-water-quality-reform Clean Water Act regulatory regime had not addressed the real problems that arose from the failure of the EPA and the states to address nonpoint source water pollution. Most states did not assess their watersheds because the costs are significant and, quite likely, because the consequences of an honest assessment that reveals pollution problems could have been expensive EPA mandates.38 On the other hand, to be eligible for certain federal money, the states had to declare bodies of water to be impaired. As the governor of Wyoming explained to Congress, "the authority for states to receive federal money for watershed work required that we declare that a waterbody was functionally impaired-regardless of its actual condition. That misunderstood incentive caused many streams to be mislabeled as impaired. ''39 In sum, the primary means of controlling water pollution has been the combination of national technology-based standards for particular effluents and state-issued permits for release of specified pollutants. The lack of clear federal primacy in this system has provided states with significant policy space to address water quality issues themselves.40 Most importantly, the federalist approach to water quality regulation prevented larger water users from using the regulatory process to cartelize their industries. In addition to this negative reason to prefer a federalist approach, there are also positive reasons to allow federalism in water quality regulation. We turn to these in the next section. II. THE NEED FOR FEDERALISM IN WATER POLLUTION CONTROL A division of authority amongst competing jurisdictions is suggested by the nature of water quality issues. Although there are significant interconnections among waterways, many water quality issues affect only particular bodies of water or portions of bodies of water. Mandating the same solution to water quality issues for the Gallatin River in Montana and the Cuyahoga River in Ohio serves no obvious purpose. The rivers differ hydrologically and the surrounding regions differ demographically and economically. Since bodies of water are rarely "national" in scope , the intuition is that water quality issues are also not national in scope. Before assessing the case for federalism in water quality regulation, we should address the arguments of the strongest proponent of a national

approach. William F. Pedersen, Jr., a former EPA official in the 1970s, is a careful and thoughtful analyst of environmental statutes.41 In a 1988 article Pedersen set out an argument for a program strikingly similar to EPA's current TMDL initiative.42 While we have obvious differences with Petersen's analysis, 43 this is the strongest case for a national approach we have encountered. Although Pedersen is sensitive to economic efficiency arguments, and uses them to buttress his critique of the current approach to water pollution control,44 he relies heavily on a textbook approach to the economic issues, equating economic efficiency with getting marginal costs equal across industries rather than examining dynamic issues pertaining to innovation or public choice issues concerning regulators' behavior.45 What is most striking about Pedersen's analysis, however, is the enormous degree of centralization it entails. For example, after making a marginal-cost-based argument for shifting away from technology-based standards to a water-quality-based approach, Pedersen argues that an advantage of giving EPA water quality-based authority over the states is that it would allow efficiency-enhancing "bubble" trades among pollution sources.46 Regulators should be able to "determine [water] uses freely" and then EPA would "hold" states to their choices. 47 Further, a "much more potent cure, one that past experience suggests is necessary for effective results, would be to grant EPA the power to promulgate measures to cure any deficiencies in a state attainment plan."'48 This brief review of Pederson's argument shows the consequences of an EPA-directed national water quality program. Inevitably such a program entails national control, usurping state controls - reducing the states to brokers implementing deals to save costs under EPA-mandated controls. Such a vision rests on a view of the states as incapable of advancing water quality without EPA's "big stick" pushing them forward.' Such an approach is inconsistent with the CWA's mandate for federalism and with the need for water quality. Professors Henry Butler and Jonathan Macey developed a "Matching Principle" to analyze federalism issues in environmental protection that can assist in determining if federalism promotes water quality. "The Matching Principle suggests that, in general, the size of the geographic area affected by a specific pollution source should determine the appropriate governmental level for responding to the pollution. '49 Butler and Macey's Matching Principle provides a framework for considering the need for federalism in water quality regulation. Butler and Macey argue that jurisdictional competition is likely to generate optimal laws if four conditions are fulfilled: (1) the economic entities affected by the law must be able to move to alternative jurisdictions at a relatively low cost; (2) all of the consequences of one jurisdiction's laws must be felt within that jurisdiction; (3) lawmakers must be forced to respond to adverse events such as falling population, real estate prices, market share or revenue, and other manifestations of voter discontent that result from inefficient regulations; and (4) jurisdictions must be able to select any set of laws they desire. 50 These "federalism conditions" are then combined with a set of conditions that others argue potentially cut in favor of national level regulation: limiting interstate externalities; halting a "race to the bottom;" controlling political cost externalization; capturing national economies of scale in administration, technical expertise, and funding; and maintaining national moral ideals.5' Analyzing a particular pollution control problem using these two sets of conditions can thus clarify the optimal level of government to address the problem. In the case of water quality, the federalism conditions are largely met. The first federalism condition, that economic entities have choices, is satisfied for water quality. Users of water, whether for waste discharge or as an input, have a choice among locations. While short term shifts in location are problematic for companies with large site-specific capital investments, in the long run even these users can alter their behavior in response to government activity. For example, faced with stringent water quality regulations, a firm could build a treatment plant that transforms the waste discharged into a river into solid waste for landfill disposal or airborne waste through incineration. A firm might also restructure its production processes to produce less waste. Other water users can simply relocate to jurisdictions with more favorable regulatory regimes. The second federalism condition, which requires consequences to be felt within a jurisdiction, is also largely satisfied. Many water bodies lie entirely within one state. Even where they do not, many water quality issues are primarily local in nature, since moving water dilutes discharges. Thus downstream users in another state may be affected by discharges to rivers, but they are likely to be affected less than local users of the river, who receive a more concentrated dose of any harmful discharge. Of course exceptions to this exist. But even in the case of bodies of water that touch many states (e.g., the Mississippi River), the resulting problems are not national but regional in scope. The third federalism condition is largely met within the United States. State legislatures and executives are politically accountable, and many water quality issues and related economic issues are high visibility political issues. Finally, the fourth federalism condition, an open set of possible laws for the various political entities, is partially met through the evolved federalism we described above. Since federalism for water quality may work, we must now turn to whether there are competing considerations that suggest national regulation is superior. One strong argument against federalism in some instances is that states can shift costs to their neighbors. In locating a sewage treatment plant, for example, a state could build it on the river just upstream from a state boundary. 52 In such circumstances, a federal role may exist to prevent externalization of costs. Resolving such matters need not, however, be based on a regulatory solution. As Butler and Macey point out, "[t]he most effective way for the federal government to discharge its responsibility to facilitate the operation of the federal system would be to assign ownership rights in water to individual states. In this way, states through which polluted water passed could assert a cause of action against the states responsible for the pollution.' '53 The second potential counter-argument is that national action is necessary to prevent a "race to the bottom" in which states compete by lowering environmental quality (and hence costs) to lure industry to their states. There is considerable doubt that the ''race to the bottom" is the correct description of competition among states - Prof. Richard Revesz has shown that a "race to the top" is more likely in many instances.54 Even if a race to the bottom is possible, however, there are also serious questions about whether a national solution is appropriate or plausible.55 Setting aside these doubts for the sake of argument, let us consider whether a "race to the bottom" is likely in water quality. The "race to the bottom" depends on the existence of a political market failure at the state level: states choose individually rational courses of action (lower environmental standards) that prove to be collectively irrational. As Butler and Macey note, this depends on the assumption that all localities assess the issue in the same way, ignoring differences in preferences for environmental quality. 56 It is possible that the variance in water quality may be higher in a federal solution than in a national one, but it is not at all clear that an overall average water quality will be lower. Moreover, because water quality issues concern specific bodies of water that affect discrete states, the race to the bottom rationale is less plausible than it might be with respect to emissions into a larger commons, such as the atmosphere.5 7 At the very least, there are serious reasons to be skeptical about the existence of a race to the bottom in water quality without more evidence to support the claim. The third factor favoring national level action is the existence of political cost externalization. California, for example, is able to shift some of the cost of its air pollution regime to out-of-state automobile manufacturers, who cannot pass all the cost on to California consumers.58 Again, a political market failure is used to justify national action.59 As Butler and Macey note, however, even if such behavior occurs, it is not clear that it justifies a preemptive federal solution.60 Again, we must be skeptical that such a political market failure exists until it. is supported by more than speculation. There may also be economies of scale in administration of regulatory programs, technical expertise, or funding for pollution control.61 If so, then national regulation should be able to accomplish a given regulatory goal at a lower cost. Yet bodies of water are unlikely to experience such economies of scale because they are not uniform across the country. Rivers in the arid west are fundamentally different from those in the more humid regions east of the Mississippi, for example. Water quality depends, to a great extent, on local knowledge about the affected body of water. Further, there are countervailing diseconomies of scale that must be considered as well.62 Finally, some have argued that federal regulation is justified because "the federal government is the level of government best suited to reflect the moral obligation of United States citizens to one another as well as to future generations. '' 63 Although there may be moral arguments with regard to some environmental objectives (species preservation), it is not clear that these arguments are only in the direction of national control.64 Moreover, these arguments seem particularly weak with respect to water quality. It is hard to know what the moral obligation of Americans generally with respect to the Gallatin River is, given that most Americans have no idea where the Gallatin River is or what the tradeoffs are concerning water quality. It seems far more likely that levels of government closer to the body of water in question could express the moral obligations of those concerned with particular bodies of water.65 None of the countervailing considerations appear to be strong enough in the case of water quality to allow departure from the federalism conditions' presumption that environmental regulation should be aligned with the jurisdiction that most closely matches the relevant problem's boundaries. The Matching Principle thus suggests that local, state, or regional solutions to water quality problems are generally preferable to national solutions. The division of authority between EPA and the states prior to the recent changes was consistent with the Matching Principle. How has EPA altered this distribution of authority? We turn to this question in the next section. III. EPA's WATER QUALITY INITIATIVE The relatively decentralized approach to water quality regulation did not suit some interests. Environmental pressure groups lobbied and brought suits to attempt to force EPA to take a more aggressive national approach to water quality.66 Academic commentators criticized EPA for not doing enough to address "the broad range of chemical, physical, and biological insults to our aquatic ecosystems." 67 Both sets of interests agreed that breathing life into the TMDL provisions of the CWA provided the appropriate vehicle for doing so. Responding to these pressures on July 13, 2000, EPA issued new regulations revising the Water Quality Planning and Management, or TMDL regulations and the NPDES and Water Quality Standards. 68 EPA claimed that the reason for the new rules was that, despite a quarter century of regulatory efforts, "many waterbodies still fail to attain or maintain water quality standards due to one or more pollutants. '69 EPA published its proposed TMDL rules on August 23, 199970 and took public comments for 150 days.71 Signaling the controversial nature of EPA's proposed changes, EPA received "about 34,000" comments on the proposed rules.72 After the comment period, EPA significantly revised the proposal before issuing the final regulations. This section briefly highlights the key aspects of those regulatory changes.

Federal monopolization of water policies is bad, especially when the agency itself knew little about the water quality for the majority of nation’s water.Andrew P. Morriss, Bruce Yandle, Roger E. Meiners et al, January 2001, "," (Professor Morriss received his AB from Princeton University, his JD and Master of Public Affairs from the University of Texas at Austin, his PhD in economics from Massachusetts Institute of Technology, and his Master of Educational Psychology from Texas A&M University. Bruce Yandle is a Distinguished Adjunct Fellow for the Mercatus Center at George Mason University. He specializes in public choice, regulation, and free-market environmentalism. Roger E. Meiners is the John and Judy Goolsby and E.M. (Manny) Rosenthal Chair in Economics and Law at the University of Texas at Arlington, and had received a Ph.D. in economics from Virginia Tech and J.D. from the University of Miami. No Publication, https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1303&context=facscholar) BH1.Highly Specific National Controls Do Not Respect the Local Nature of Water Bodies and Conflict with the Goal of Congress The prescriptive nature of the TMDL rule conflicts with the objective of Congress in the Clean Water Act in giving states primary responsibility for water quality control. 0 9 Despite this statutory recognition of the importance of state level approaches, EPA's changes, define procedures and controls, and could impose federal authority and priorities directly on states, rather than allowing states to make decisions regarding local water bodies based on their own unique characteristics. The emphasis in the regulatory changes is on national consistency and uniformity, when local approaches tailored to individual water bodies and the preferences of the populations living near those water bodies are much more likely to be effective . Commentators on EPA's proposal recognized the problems created by the regulations' centralization of authority.110 The regulatory changes authorize EPA to determine TMDLs for all Part One waters in the nation, either through conditions it imposes for approval of state plans or by taking over a state program. In addition to asserting authority in these rules to require any WQS for any water body, EPA leaves open the possibility that in the future it might "promulgate federal water quality standards for states, pursuant to section 303(c)(2)(B), to ensure consistent, nationwide application of the new requirements in the period between listing and TMDL establishment.""' Thus, states must submit water quality plans that meet EPA approval, for achieving standards that may be determined by EPA at a later date on a case-by-case basis. States, in establishing TMDLs to meet water quality standards for a given water body, must include every possible source that might contribute to loadings of any pollutant. That is, the impact on water from all possible sources must be determined by the states for every body of water impaired by pollutants or unknown sources, including: point sources of pollutants (discharges from public and private sources such as water treatment plants); nonpoint sources of pollutants (runoff from land, including that from agriculture and silviculture activities, taking into account the impact of unusually heavy rains, the impact of unusually large snow melts, and the impact of unusually dry weather); and atmospheric pollutants (the impact of airborne dust and pollutants deposited on bodies of water ).112 While it is true that all these things affect water quality, EPA places no limits on what it may demand from the states in this regard. Documenting all that EPA is proposing for every Part One water body may well be technically impossible, as well as economically infeasible. EPA admits that it knows little about basic water quality for the majority of the nation's waters, 113 yet this rule requires states to provide detailed documentation regarding the current and potential water quality of every river, stream, estuary, reservoir, lake and pond. Under this reading of the regulation, we believe states would have to include estimates, for example of what happens in case a hurricane should hit, a drought should occur, or a large dust storm in New Mexico should drop heavier than usual particulate matter on Arkansas. Under its existing authority, EPA already claims broad authority to force states to deal with water issues that may arise from any source.114 In September 1999, for example, the Governor of Nebraska attacked EPA's designation of a stretch of the Middle Platte River as "impaired water" because of concerns about high water temperature." 5 He pointed out that the water was warm due to summer sun and low water levels." 6 The Governor recognized that historically when the weather is hot and rainfall scarce, the river temperature rises, just as EPA asserts. However, he wondered: "How can the state control temperature pollution coming from a natural source, like the sun?" 117 EPA will not answer that question because it asserts that it is Nebraska's responsibility to resolve the problem." 8 Nebraska denies there is a problem, other than one caused by nature. EPA demands a remedy and under the new rules may impose one. The real issue in this example is that of water flow restrictions caused by the Kingsley Dam. Nebraska contends that the EPA does not have the authority to order the dam torn down or to require higher levels of water flow from the dam." 9 EPA does not assert it has such authority, but continues to demand that Nebraska lower the river water temperature by changing water flow. In essence, EPA is using water quality standards for temperature to force a state to change water flow practices, something it cannot directly regulate. The new rules would end any doubt about the ability of EPA to force states to impose any control on any activity that now affect or in the future could affect water quality, as defined by EPA. 2 0 EPA's new rules thus create an important new monopoly in EPA on water quality. By asserting such broad authority over water quality issues, EPA has ensured that all water quality (or even all water-related issues) ultimately may be within EPA's claimed authority. No water user may be secure in its use without EPA's sanction, no state may broker a compromise among water users without involving EPA. EPA's monopoly on final authority has significant implications . First, EPA's monopoly will lead to reduced entry into water- dependent industries, reducing competition . Second, EPA's monopoly will offer the existing water users a tempting target for rentseeking behavior . By convincing EPA to act, existing users will enhance the value of their asset (the right to discharge) by making it scarcer . This effect of centralization is worsened by the failure of EPA to base the new regulatory regime on sound science. While there are real problems with water quality in various lakes, rivers and estuaries, the EPA has little scientific evidence about the extent of the problem. Rational policy, based on evidence of problems, would demand that the Agency collect comprehensive evidence, rather than simply assert that a massive expansion of detailed regulations are justified because, for example, to the best of the EPA's knowledge, 1.5 percent of the rivers in the nation might violate water quality standards in the future. 121 The fact that just over one-third of the twenty-three percent of the nation's rivers surveyed for the National Water Quality Inventory Report (or eight percent of the nation's rivers and streams) are not in full compliance with existing water quality standards is not buttressed by evidence that deviations from existing EPA regulations are, in fact, causing harm to the "chemical, physical and biological integrity of the Nation's waters," as specified by Congress in the Clean Water Act.122 EPA recognizes that it has little scientific evidence to support the rules. "One option EPA considered was whether it would be appropriate to revise the regulations to require that TMDLs be established only on data and analyses which met very strict quality and analytical standards. EPA concluded that this approach is impractical and would significantly decrease the number of TMDLs that could be established."'1 3 However, EPA does not defend why it thinks it is better to have more TMDLs than to have a few meaningful plans for truly impaired water bodies. Critical observers argue that lack of monitoring has left states unable to measure the quality of their waters or the progress made. According to analyst Dr. Richard Halpern, for example, twenty years after the Clean Water Act was passed, only "$33 million had been spent on monitoring the nation's water quality, but taxpayers and the private sector had spent more than $540 billion on technology to fix our water, broken or not."'12 4 As two USGS

hydrologists concluded in 1993, "After all this time and money, it would be desirable to know whether the [Clean Water] act has worked. Is the water cleaner than it would otherwise have been and have the environmental benefits, however they may be counted, exceeded the costs?"'1 5 They concluded that decisionmakers "do not now have the information they need to make wise decisions for the future.' 26 2. The Procedural Nature of the New Rule is Both Prescriptive and Open-Ended EPA's monopolization , and the ill-effects thereof, are worsened by the prescriptive and open-ended nature of the new regulatory regime, leaving states with substantial responsibility but little flexibility . The regulations require states to develop lists of impaired water bodies, according to a specified format and using EPA's prescribed priorities. States must also solicit public input and document the methodology they use to develop the list of impaired water bodies and submit that to EPA eight months before the list is due. 27 The ill-effects of the regulations can be seen in EPA's own analysis of the requirement of "reasonable assurance" that a TMDL will be effective. As EPA recognized, "many commentators [on the proposal] noted that States may have limited regulatory authority to address nonpoint sources, and perceived the definition of reasonable assurance as forcing states to adopt regulatory controls on nonpoint sources rather than rely on voluntary programs."'12 EPA's definition of "reasonable assurance" requires a TMDL for a source not covered by the NPDES permits to satisfy a four-point test, including that the state is providing adequate funding.' 29 For EPA-established TMDLs, EPA may establish adequate funding by conditioning other CWA grant funds on the state providing funding.130 EPA is thus permitted to establish "adequate" funding by threatening to withhold funds, while states must establish it by actually providing funds. An "approvable" TMDL must include considerations of water quality, habitat, geomorphological, or other conditions that indicate adequate water quality.' 31 For example, EPA described the new rules in the proposal by noting that a state may have to show, among other things, how it can improve spawning of a particular fish by twenty percent by its TMDL plan for a particular water body.13 Z Whether twenty percent more successful spawning is the "correct" target is at EPA's discretion. In planning such TMDLs for various water bodies, the state must consider fine sediment from hillsides or river banks, and the variability of such sediment according to the season of the year, the amount of rainfall ("low flow during drought periods" and "high flow nonpoint source runoff"), and the temperature that "varies as a result of climate and season"' 33 and that may affect the impact on water of assorted pollutants. 34 EPA recognized that such matters are extremely difficult to solve" and may be "costly," so the Agency assures the states that it appreciates the complexities they face. 135 However, EPA opted to read Congress's silence on the elements of TMDLs to authorize it to "require such an implementation plan as an element of an approvable TMDL.' 136 Moreover, EPA argues that it has the authority to establish TMDLs even when it has not disapproved a proposed TMDL and asserts that it should "take the lead" in setting TMDLs for interstate or boundary waters.137 While the general outlines of the new rules are based upon water quality standards and implementation plans outlined by Congress,138 EPA has significantly stretched the words of Congress to give itself nearly unlimited control over state waters. Whereas Congress says that water quality plans will take into account "seasonable variations," 139 EPA stretches that to be from drought to flood conditions, as noted above. In other words, states, in developing TMDLs, must consider the effect of "seasonable variations," including hundred year floods and unusual droughts1 4° Similarly, while Congress says that water controls should be "stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife," 141 EPA stretches this to include habitat plans under the Endangered Species Act' 42 and asserts that it has the option of using the Safe Drinking Water Act standards or new standards that may be developed in the future. 43 The new rules grant EPA nearly unlimited authority to impose controls on states. Although EPA's discussion of the rules suggests that in practice the Agency does not intend to implement such sweeping powers except in rare cases, EPA does not define what these rare cases are and its powers are not limited by the rules. EPA's power grab is all the more astonishing because of the enormous costs it will impose on the states. Although EPA claimed that the TMDL rules would not impose direct costs in excess of $25 million per year, these figures are suspect. 144 A 1996 EPA report of the costs to state and local governments of developing TMDLs (based on case studies of fourteen TMDLs) provides some insights into potential costs to states, territories and authorized tribes.145 It found that per-watershed costs ranged from under $5,000 for small watersheds with single pollutant source and no public participation to over $1,000,000 for large watersheds with various sources and more extensive public participation. The studies examined five components of costs: administration, outreach and public participation, analysis, modeling, and data collection and monitoring. If the additional requirements in the rules increase administration and public participation costs by twenty-five percent, and modeling and analysis costs by fifteen percent (we assumed no increase in monitoring and data collection costs due to the changed rules), the average incremental cost of the rule would be about $115,000 per watershed. EPA suggests that over 20,000 waterbodies have been identified as impaired or threatened, 146 implying total costs of over $2 billion. Even if these costs are distributed evenly over the fifteen-year period during which states must develop TMDLs for all Part One waterbodies, it amounts to over $250 million per year in costs to states, simply for developing plans.147 This rough estimate does not include costs to private citizens of implementing these plans. Other analyses also suggest that EPA substantially underestimated the costs. 148 Though based on very rough calculations, we believe the above figures suggest that EPA's estimate that the changes will cost under $25 million per year is understated. The cost of producing comprehensive TMDLs, which must potentially account for temperature swings, rainfall (and snow melt) highs and lows, habitat, sedimentation, and a wide variety of pollutants and water quality standards that EPA may rely upon in approving or setting such plans, is clearly a massive undertaking, imposing costs that could well exceed our rough $250 million estimate in any one year. The states must incur these costs and, due to the open-ended nature of the rule, are dependent on EPA's verdict as to whether a particular TDML is adequate with respect to the various elements contained in the rule. It is not clear how states will fund this open-ended program. Indeed, the proposal noted that states "may have difficulty in completely identifying funding sources for all such measures.' 49 Left unsaid is how funds are to be produced if not allocated by state legislatures. EPA is putting itself in the position of forcing the states to allocate additional funds to cover the costs of whatever water protection programs EPA asserts it has the authority to mandate on the states.150 3. Creating Incentives for Rent-Seeking and Corruption By allocating to itself the authority to review every TMDL proposed by the states and by requiring that so many TMDLs be issued so rapidly, EPA created an impossible task. Meaningful review of the complex TMDLs cannot be achieved by EPA with its limited resources, something EPA implicitly admitted in its comments declining suggestions that proposed TMDLs pending at EPA for a period without action be automatically approved. 151 Comparison with similar tasks under the Clean Air Act (reviewing state implementation plans) 152 and Federal Insecticide, Fungicide, and Rodenticide Act (reviewing state registration decisions and reviewing pre-1972 pesticide registrations) 53 shows that EPA is unable to meaningfully review such a volume of state decisions. How will EPA allocate its scarce review resources? EPA will face pressures from two groups to review particular decisions. First, because the TMDL process creates what is essentially a zero-sum game with respect to emissions into water, pollution sources will have great incentives to use the TMDL-NPDES process to foreclose existing and potential competitors' access to the environment's waste disposal capacity. Second, environmental pressure groups will be able to use the administrative process to pressure EPA to review specific decisions and so to pressure specific sources to agree to their demands.154 Thus, in addition to creating a cartel manager in EPA, the new water quality regulatory scheme also creates strong incentives for regulated industries to engage in rent-seeking behavior.

Decentralized federalism is the only solution to the current water problems, flexibility encourages innovation.Andrew P. Morriss, Bruce Yandle, Roger E. Meiners et al, January 2001, "," (Professor Morriss received his AB from Princeton University, his JD and Master of Public Affairs from the University of Texas at Austin, his PhD in economics from Massachusetts Institute of Technology, and his Master of Educational Psychology from Texas A&M University. Bruce Yandle is a Distinguished Adjunct Fellow for the Mercatus Center at George Mason University. He specializes in public choice, regulation, and free-market environmentalism. Roger E. Meiners is the John and Judy Goolsby and E.M. (Manny) Rosenthal Chair in Economics and Law at the University of Texas at Arlington, and had received a Ph.D. in economics from Virginia Tech and J.D. from the University of Miami. No Publication,

https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1303&context=facscholar) BHIV. PROPERTY RIGHTS AND THiE RULE OF LAW: A SOLID FOUNDATION FOR WATER QUALITY MANAGEMENT EPA could recast the TMDL rules to more effectively meet the congressional goals of significantly enhancing and protecting the quality of the nation's waters, while respecting its objective regarding "the authority of each State"' 55 with respect to the use of its waters. The needs of the states with respect to the uses of their waters, and the causes of and solutions to water pollution problems differ significantly from state to state. Refocusing water quality regulation on outcomes instead of inputs (as reflected in the emphasis on TMDLs rather than NPDES effluent limitations) is a major step in the right direction, but greater flexibility is needed if the promise of real water quality improvements and cost savings is to be realized. Given a choice between performance standards that identify and focus on outcomes and technology-based input standards, common sense suggests that environmental protection should be about the environment and how it affects people, not about engineering and permits. Performance or outcome-based water quality management changes the incentives in the right direction. With unconstrained performance standards, polluters have complete flexibility, technologically and economically, in finding effective ways to meet environmental targets . New information and discoveries can be translated quickly into enhanced environmental quality. Profit seeking moves producers in the direction of improved water quality. On the other hand, technology-based input regulation tends to freeze technology, force a single approach on polluters in the same industry, blunt the incentive to discover and implement alternate approaches, reduce competition, and to disregard outcomes. Permitted polluters who adopt approved technologies can expand operations even though environmental loadings may exceed the assimilative capacity of streams for handling discharge. The fact that numerous river segments are environmentally stressed while all dischargers meet EPA engineering standards156 - and that this situation is destined to get worse - is powerful evidence that input management will not generate environmental protection. The requirement that point-source dischargers who wish to expand first obtain offsets from existing dischargers raises the admirable prospect of gains from trade in the context of a river basin management system.157 However, for EPA to require that offsets of particular amounts and kinds be sought only after technology-based standards are met is just as clearly a step in the wrong direction. Evidence from experiments on Wisconsin's Fox River that offered permit trading opportunities, the equivalent of market offsets, after EPA technology-based standards were met illustrates the difficulties associated with a hybrid system that attempts to install markets on top of command-and-control regulation. 158 Touted in the early 1980s as a cost-effective alternative to strict command-and-control regulation for reducing biological oxygen demand (BOD), the Fox River experiment initiated by the Wisconsin legislature in September 1981 offered the prospect of generating annual savings of $4.5 to $6.8 million. 59 But as environmental economist Thomas Tietenberg points out, the large savings were not achieved. 60 Only one trade between BOD dischargers was recorded. The requirement that technology standards had to be met prior to entering the market for offsets raised costs and practically eliminated the potential gain from trade. In addition, bureaucratic barriers were then erected by regulators who did not support the concept.' 6' In a perceptive analysis of what happens when efforts are made to append markets to command-and-control regulation, two water quality management scholars pointed out early on that the Fox River experiment would suffer because the financial and bureaucratic incentives were not right.162 Their pessimistic forecast proved to be extraordinarily accurate. EPA's TMNDL regulations are flawed for the same reasons. Water quality problems are inherently local or regional, and while there is a national interest in improving environmental quality, there are no national rivers or lakes . Even if there were rivers and lakes that touched every state, or even most of them, the span of such water bodies would be so large and heterogeneous that decentralized control would naturally emerge. To achieve the largest net gains in water quality benefits, management of water quality should be decentralized . Those best equipped with specialized knowledge and with the greatest incentive to minimize cost and improve water quality should be made responsible and accountable for managing water quality. TMDL regulations should be refocused; they should be cast in terms of property rights protection and the rule of law and focused at the state level. A decentralized approach for water quality management based on the rule of law maintains state supremacy and congressional intent that EPA "consult" with the states.163 Instead of specifying in detailed fashion how states shall proceed in developing TMDLs for all bodies of water within their boundaries and then engaging in continuous water quality planning and monitoring, federal rules for managing water quality should simply require: 1) that each state have a plan for achieving water quality management that provides accountability and liability for damages imposed on holders of environmental rights, and 2) that real data on observed water quality conditions for all major water bodies be provided continually and consistently to the public. The data should be in a form that allows for comparisons to be made across time and space. Obviously, appropriate definitions of "major water bodies" and "real data on observed water quality conditions" would have to be specified. The rule of law that has evolved through common law courts provides a logical framework for defining legitimate holders of environmental rights.164 Under common law, ordinary people and communities of people hold the right not be harmed against their will. To illustrate, if a discharger of waste imposes costs on parties downstream against their will, the holders of downstream rights have a cause of action against the polluter. If those downstream are citizens of the same state or city populations in another state, the cause of action is the same. State and federal courts provide forums for settling the related disputes. Typically, the remedies are damages and injunction. If common law rights were enforced, any city that discharged raw sewage that imposed costs on downstream citizens would do so at its own risk. Paying a nominal fine to the EPA, which is the usual result under the current regulatory system, does not get the job done. For example, in 1997, the City of Atlanta was paying a $20,000 per day fine to the state of Georgia for discharging untreated sewage directly into rivers and creeks in the Atlanta area. The penalties were less costly than the cost of modernizing the city's main sewage treatment works.165 Downstream communities had to wrestle with resulting drinking water contamination problems, which were partly resolved by financial transfers provided by the state. At common law, a public nuisance suit could theoretically be brought by a downstream community against the City of Atlanta, asking for payment of damages and a cease and desist order. Unlike statute-based remedies, which generate penalty revenue to environmental protection agencies or into general state coffers, common-law remedies generate payments to the damaged party and can also bring injunctive relief. Similarly, any nonpoint-source polluters who allowed runoff from a farm or collection of city parking lots to impose damages on downstream parties would be subject to suit. Any state that allowed damages to befall the citizens of another state could be sued in federal court. And any state that damaged the federal property of citizens of the United States, as in the case of the Florida Everglades166 or Yellowstone National Park, 67 could be sued by the stewards of that property. Common law property rights protection introduces an understandable discipline that causes ordinary people to become conscious of and accountable to their neighbors. Common law courts do not issue permits that allow polluters to harm other people. Instead of dealing with the endless technical problems of specifying TMDLs for hundreds of thousands of U.S. river segments, the common law process would protect environmental rights. The result of that protection would then yield another form of TMDLs, one based on the prevention of damages to people and the things they value. A. The Rule of Law Is Consistent with River Basin and Watershed Management From the very outset of the nation's interest in improving water quality, scholars and policy analysts have focused on river basins and watersheds as the appropriate domain for a substantial part of water quality management. 168 Water quality results from the collective action of all water quality users; it is impossible to achieve collective improvements by focusing on individual discharge points. The European experience tells us about the relative merits of river basin management. 169 Federal encouragement for building environmental protection on the basis of property rights and the rule of law would support the formation of associations or multi-state compacts for improving water quality. Building on a foundation of law and property rights leaves room for many kinds of institutional experiments. There are obvious economies associated with defining the boundaries of a proposed solution so that they fit the boundaries of the problem. A very positive U.S. experience is found in the history of the Ohio River 10-state compact, ORSANCO , which led to dramatic improvements in water quality in that region before federal intervention . 170 A similar experience is seen now in North Carolina's Tar-Pamlico River Basin Association , which forms a cost-minimizing community of point-source and nonpoint-source dischargers who are collectively improving water quality of the Tar River and Pamlico Sound.' 7' When ORSANCO

was formed in 1948, there were no federal water pollution control statutes. ORSANCO and state and local statutes filled the need. By contrast, when Tar-Pamlico was formed in the 1980s following a massive downstream fish kill, federal statutes had failed to provide water quality protection. Every point-source discharger in the watershed was operating within permit limitations, and nonpoint source dischargers were outside the regulatory control network. Estimates of the incremental cost of reducing a unit of biological oxygen demand (BOD) in the watershed region varied from 10 cents per kilogram to $3.15 per kilogram. 72 At one location in the Tar-Pamlico estuary, reductions of harmful nutrient discharge from an industrial point source ranged from $860 to $7,861 per pound eliminated. It was estimated that the same pollutant could be removed by farmers (nonpoint-source dischargers) at a cost of $67 to $119 per pound. 73 In short, the expected gains from trade were sizable. Today, Tar-Pamlico collects revenues from point-source dischargers who are members of the Association. The revenues generated are used in turn to make low-cost purchases of reductions from nonpoint-source dischargers who are not association members. The incentives are right for all parties. Operators of publicly owned treatment works have coordinated capital improvements to minimize the cost of improving water quality and have avoided the installation of more costly yet still ineffective advanced control systems by paying discharge fees. Farmers in the region gain revenues by modifying their cropping operations. Meanwhile water quality has improved in the Tar River. Initial estimates of the command-and-control approach to the problem indicated the cost would be $50 to $100 million and water quality would not necessarily be improved. By comparison, Tar-Pamlico is achieving improvements at a cost of $11.7 million.174 Tar-Pamlico and ORSANCO illustrate just two possibilities that states might take in efforts to improve water quality. The Tar-Palmico approach yielded a lower cost water quality in a competitive context. Firms within the basin have a choice: they can follow EPA's command-and-control dictates or join the Association. The Association has an incentive to keep costs down, while meeting or exceeding environmental goals. If EPA were running the program, or approving the details of their operation, the competitive element would be lost . Given a complete range of choices as to how to manage water quality, it is conceivable that a river basin association would take a TMDL approach precisely like the one outlined in EPA's rule. It is also conceivable that an association would follow the path of Tar-Pamlico, which, along with EPA approval, focuses strictly on outcomes and supports contracting for reductions between pointsource and nonpoint-source dischargers. People in other states would no doubt discover and implement a range of solutions to the water quality problem that cannot be predicted before the fact. Accountability and water quality protection would be assured by a requirement of liability for damages provided by common law and with a reporting of water quality data required by regulation. B. EPA Should Be a Consultant to the States; Not a Manager of TMDLs The evolving state-centered water quality management process still leaves a key role to be played by the EPA. It is not, however, the micro-management role envisioned by the TMDL rules. Quite apart from these rules, the EPA is positioned to be a key consultant to the states in reporting water quality data, analyzing conditions, and providing technical support in the development of water quality management approaches. If water quality is to be improved, it is critical that reliable data be provided so that citizens and responsible officials can know where, when, and how much progress is being made. If nothing else, the federal government should provide accurate data on environmental quality. EPA could play an enforcement role in common law suits that involve interstate matters and protection of federally managed assets. Obviously, the adjustment from enforcer of commandand-control, technology-based standards to the role of consultant in a common-law world will not come easily, but change is important. CONCLUSIONS AND RECOMMENDATIONSFar more is known today about water quality management than was known in 1972 when the current Clean Water Act was passed into law. Even if the economic makeup of the country had not changed, there would be reason to reexamine and perhaps change the regulatory assumptions that supported that first major statute. But the economy has changed dramatically. The United States is no longer a smokestack economy: it is primarily a services economy. The major water pollution control challenges have also changed. Instead of industry, it is now municipalities and nonpoint sources that continue to pollute. Instead of just effluent discharge, it is also air emissions. The institutions of the past do not fit the challenges of the present and future. EPA's changes to its water quality planning and management regulation may reflect an effort to shift from technology-based controls determined at a federal level, to controls based on the characteristics of individual watersheds. This is an important transition, and a watershed approach to meeting water quality goals is more conducive to a focus on outcomes, rather than inputs, which has dominated water quality management in the past. However, EPA's prescriptive, procedural rule is likely to undermine the benefits of a watershed approach. Centralizing decision making with EPA for hundreds of thousands of river segments, lakes, and coastal zone regions complicates and delays decision making about matters that are inherently local . The regulatory framework proposed by EPA, with its combination of command-and-control, technology-based regulation with offsets and trading has not succeeded in meeting water quality goals in the past and is not likely to succeed now. River basins, watersheds, and coastal regions are natural units for managing water quality. EPA's approach for TMDLs must allow for and encourage the recognition of alternate geographic governance units that minimize the environmental cost of achieving improvements in water quality. A water quality management system based on the rule of law and protection of environmental rights can be devised so that the goals of TMDL can be achieved. The system must include accountability and responsibility for actions that affect environmental quality. The system must allow for flexibility in the development of regulatory institutions and processes so that regional differences in benefits and costs can be taken into account.

UQ

UQ – General Biden is restoring power to the states but hurdles remainCraig Holt Segall, 3-12-21, Assistant Chief Counsel, California Air Resources Board, “Networked Federalism: Subnational Governments in the Biden Era” https://www.ecologylawquarterly.org/currents/networkedfederalism/Subnational governments, working with non-governmental advocates, drove climate action during the Trump administration while rebuffing federal rollbacks. Under the Biden administration, focus may initially shift towards the federal government, but the subnational network is critical to continued progress on climate change. I use the term “networked federalism” to describe how a horizontal, interconnected, and polycentric collection of states, local governments, Tribes, and advocates provides the resilient frame needed to buttress national action. Indeed, this structure mirrors the successful structure of the Paris Agreement[1]—in which international action depends on subsidiary national contributions. A networked, federalist system of subnational climate action will be critical to continuing success, and should be nurtured and expanded. In this article, I discuss barriers to federal climate action under the Biden administration, trace the important role of subnationals in the climate movement, and lay out a policy agenda for strengthening subnational networks over the next four years. I. Barriers to Federal Action Under the Biden Administration Despite its climate focus, the Biden administration inherits a depleted civil service,[2] multiple crises from COVID-19 to economic depression,[3] and a hostile Supreme Court and federal judiciary.[4] In this context, subnationals on the side of climate action can be force multipliers—advancing policies, making markets, and occupying legal and civil space even if the federal courts intervene and the legislative process falters. Such setbacks are likely: congressional direction may be slow in coming due to the undemocratic design of the U.S. Senate,[5] in which Jim Crow relics like the filibuster aggregate power in a Republican Senate minority that represents forty-one million fewer Americans than the thin Democratic majority.[6] Congress is unlikely to produce sweeping new legislature—though there will be opportunities for focused action[7]—and the judiciary is unlikely to countenance comprehensive regulatory efforts in its absence. Though some regulations will certainly survive, Trump appointments mean that the judiciary is unfriendly to broad executive action by the Biden administration. Barriers include attempts to revive “non-delegation” doctrines limiting agency scope absent very specific Congressional direction,[8] attacks on the deference due to agency technical judgments,[9] and amplification of the ill-defined “major question” doctrine, which asserts that agencies may not solve substantial problems absent explicit mandates.[10] Though these attempts have largely been supported only by minorities of the Court, they are of increasing currency, and are cropping up in lower court dissents.[11] The upshot is that regulatory action may be impeded by judicial doctrines that disfavor executive action—in theory, in deference to the legislature—even as the legislature struggles to act.[12] Even if these barriers can be overcome, the midterm elections loom, and the historical odds favor gains for the Republican party.[13] In short, federal action, after a heartening start,[14] risks almost immediate reversals in court, or simply sputtering out legislatively if Congress cannot act commensurate with the challenge. In this context, the subnational network formed over the last four years is tactically critical. The new President can rely not just on the federal government, but on the entire network. II. The Subnational Infrastructure: More Than A Counterweight The Trump administration’s least likely legacy is genuinely robust and pervasive subnational climate action. Faced with wholesale federal hostility, subnationals banded together to challenge nearly every Trump-era climate and clean air action,[15] and racked up an impressive win record,[16] including vacatur of Trump’s marquee power sector rollbacks.[17] As the litigation stalled the remaining rollbacks,[18] states also increased policy collaborations. The result was a major acceleration in state-level climate policy: multiple states prepped to follow California’s more rigorous vehicle emissions standards as soon as federal impediments were removed, accelerating decarbonization of the vehicle fleet;[19] states in the Northeast created a massive new transportation decarbonization initiative;[20] many states adopted statutes cutting high-global warming potential gases like hydrofluorocarbons;[21] and low carbon fuel standards began to spread.[22] Subnational regulators also began to close down obsolete fossil fuel infrastructure, with record numbers of coal-fired power plants retiring,[23] to be replaced with renewable energy and storage facilities.[24] States accelerated markets for clean technology,[25] implemented major environmental justice efforts in, for instance, California[26], North Carolina,[27] and New Jersey[28], and pivoted towards a just transition.[29] Additionally, a bipartisan coalition of governors formed the United States Climate Alliance, which included states representing 55 percent of the population.[30] The United States Climate Alliance documented and shared climate efforts among the states, and provided a critical collaborative venue.[31] Beyond the value of policy progress in its own right, this decentralization of policy ultimately makes climate action more durable and effective on multiple axes: States were the first and primary environmental regulators and the law continues to carve out ample space for state action.[32] Federal authority cedes to subnationals in critical areas, including land use,[33] the intrastate power sector,[34] building codes, and emissions from existing stationary[35] and mobile sources.[36] The federal Clean Air Act is typical in specifying that federal regulations are floors above which subnational governments are free to act.[37] Thus, most emissions are firmly under subnational jurisdiction.

State and local legal authorities are particularly resistant to judicial reversals. Few statutes preempt subnational authorities, and the Supreme Court has long emphasized the importance of state sovereignty in our federal system.[38] Moreover, states receive “special solicitude” regarding their ability to be in court in lawsuits against the federal government.[39] States also have the resources and ability to file such suits—and indeed greatly accelerated their efforts to do so during the Trump administration.[40] In addition to offensive litigation, States have succeeded in defending many programs from challenges asserting a range of federal preemption and federal constitutional claims. For example, California and Oregon successfully preserved their Low Carbon Fuel Standards.[41] Although the Trump administration attempted to limit state authority by, for instance, attacking California’s long-standing vehicle regulatory program,[42] these attacks were on shaky legal ground,[43] and may prove to be evanescent under the new administration. Indeed, even while its vehicle regulatory program was under attack, California was still able to conclude successful agreements under which leading automakers contractually bound themselves to vehicle decarbonization despite federal rollbacks.[44] Subnational advantages extend more deeply into the structure of our politics as subnational action offers a more varied and robust set of frameworks to sustain action, even in the face of federal reversals. Programs rooted in a single totalizing vision tend to be unstable.[45] There are simply too many distinct policy and political interests to make national consensus easy to attain.[46] Even after national consensus is attained, national programs can be subject to swift reversals in the courts—as the Supreme Court stay of the Obama-era Clean Power Plan underlined.[47] More fundamentally, as Harvard political scientist Theda Skocpol has observed,[48] any one climate policy is subject to retrenchment in the absence of sustained political organizing across multiple levels. The subnational network offers this sort of thick and resistant legal/political infrastructure. Subnational policies are not immune to reversal—as Professor Leah Stokes has demonstrated, state-level retrenchment has occurred as incumbent fossil interests resist zero-carbon challengers[49]—but they still have real advantages. Initially, there are simply more actors, meaning that progress can be sustained even if retrenchment occurs in some jurisdictions. But states are also often better able to secure lasting policy settlements: it is less expensive to organize in state politics, meaning that lasting political coalitions are somewhat easier to sustain, and may reach more deeply into the community.[50] The comparative flexibility and speed of state legislation and regulatory processes in some jurisdictions may make it easier to put programs in place and adapt them in the face of attack.[51] And the nimbleness of state and local governments often makes it easier to pair technological policies with social ones—for instance, combining decarbonization rules for an industrial sector with support for transitioning workers.[52] The structure of climate progress ultimately is as multi-leveled and complex as the origins of the climate crisis itself. Elinor Ostrom, Nobel Laureate in Economics, described climate change as a “polycentric” problem, in that the decisions that created the crisis emerge at every level of government and society.[53] Solutions to that crisis will be more robust if they mirror this essentially fractal structure. This was ultimately the insight that motivated the Paris Agreement, with its focus on nationally-determined actions within a larger organizing frame, rather than one central climate regime.[54] The same insight should motivate the design of government programs in the United States, with climate action deepening at every level. III. An Agenda for the Next Four Years Federal action should focus on meaningfully strengthening and engaging with the subnational climate network. Doing so now, while the new administration is at the height of its influence, will help ensure that the network persists, and provide assurance of continued action even if the midterm elections go poorly or federal courts slow executive action. The agenda I lay out here is just a sketch of the many opportunities available: A. Cease Undue Interference with Subnationals Any serious effort to strengthen subnational action needs to begin with ceasing attacks. This will require at least withdrawing the Trump administration’s preemptive limits on state vehicle regulatory authority,[55] its challenge to the California/Quebec Cap-and-Trade Program,[56] and unwanted federal fossil fuel projects inconsistent with local priorities.[57] The Biden administration has begun to set all of these failings right through early executive orders directing agency reviews of such actions,[58] though the effect of these directives will come later as final administrative action is taken. B. Direct Affirmative Cooperation with States, Communities, and Tribes The Biden administration can direct all federal agencies to affirmatively collaborate with subnational governments to advance climate action by revisiting executive orders—generally of Clinton-era vintage and long out of date—concerning consultation with states,[59] Tribes,[60] and environmental justice communities.[61] It has made a start of this in its early Executive Orders,[62] but much remains to be done. Each of these Clinton-era orders, in their current forms, largely direct consultation, rather than positive efforts to enhance subnational authorities.[63] The result has been federal actions that harm subnational governments (such as the attack on the California vehicle program), undertaken with no ability for subnationals to resist outside of court. In the tribal[64] and environmental justice[65] contexts, the picture is similar, with major problems being proposed or forced through without affirmative community consent (as, for instance, in the case of the Dakota Access Pipeline on the Standing Rock Sioux Nation). The Biden Executive Orders and other early actions do address these issues, but in a limited fashion, focused initially on process rather than substantive expansion of authorities—and they do so only for environmental justice communities and Tribal Nations. For instance, the climate Executive Orders direct some degree of reconsideration as to environmental justice communities, providing for new metrics to be developed and used, albeit

without formally revising the prior order or providing communities an affirmative right of refusal.[66] This means that the Order does not create new rights, just improved analysis. Similarly, a Presidential Memorandum on Tribal Consultation[67] does not ultimately enhance Tribal authorities, instead focusing on improved consultation plans. It would be better to collaboratively and more thoroughly revise these orders, with the communities they are intended to serve, to (a) direct federal agencies to actively collaborate with subnational entities to further climate and public health goals, and (b) to require very strong justifications for actions contrary to the recommendations of the entities consulted, if not an actual right of refusal. Further, the absence of any clear order on federalism and state and local governments itself is worrying—though states are mentioned at a high level in the early action orders, there is no order focused on federalism, nor any firm directive to act to rapidly advance state climate action in partnership. This is a missed opportunity, and one that should be corrected—swiftly. This is no time to allow the network for action to degrade. Such orders, and further strengthening actions, would lastingly empower the network of polycentric climate actors who have driven much of the progress to date. C. Embed Climate and Public Health Metrics in Federal Grant Programs and Guidelines The federal government, though its spending powers and information resources, can help steer subnational action, raise the federal floor, and encourage laggard jurisdictions to act. For instance, in the Trump years, the Department of Transportation withdrew greenhouse gas metrics for federal transportation spending. [68] The rule could readily be reinstated—helping redirect spending to lower vehicle emissions and favor transit. Similar opportunities exist throughout government to provide clear information on climate and public health impacts, to condition grants on appropriate action, and to target funds to subnationals making progress. One particularly useful strategy may be to fund communities themselves to further advocate for climate and public health progress. For instance, California has been providing such grants to disadvantaged communities working to improve their own air quality, offering community groups resources to develop data and arguments to further inform and influence regulatory decisions involving them.[69] Similar models would help build the interconnected networks of advocates and regulators needed to make climate action sticky. D. Affirmatively Support Subnationals in the Paris Agreement Context Although the Paris Agreement does not bind subnationals, subnational action has produced significant emission reductions that will aid the United States in meeting its overall goals—a pattern that has repeated worldwide.[70] There is every reason to recognize this progress in the Nationally Determined Contribution that the United States must present in Glasgow this year—for instance, by identifying state progress, past and continuing, as part of the Contribution—and commit to further supporting subnational action in the context of the U.S.’s international obligations, a commitment which could take the form of an executive order or memorandum directing the federal government to forward this action, of the form I have described above. Creating a State Department Office dedicated to supporting subnational climate action, within transnational networks,[71] perhaps along with positions with the Domestic Policy Council to do the same inside the country, would also deepen this commitment and help operationalize it within the federal structure. This sort of formal commitment would confirm there is no legal or policy question as to whether subnationals should act, and further mobilize national support for networked federalism across national borders.[72] Supporting subnationals in the Paris Agreement context will help further connect subnationals globally, providing a solid platform for collaboration and increased climate ambition. * * * These actions—and doubtless many others—would help support the thickly interconnected, polycentric, and resilient networks needed to accelerate climate action, make it resilient, and (by bringing in many actors and voices) amplify solutions that equitably serve many. The climate problem is too big for any one government to take it on—including the federal government. The Biden administration, as it confronts this challenge, should embrace the irony that the Trump administration has left it a gift: an engaged, effective, and growing network of subnational actors. The Biden administration should nurture that network, setting us on a course for sustained progress with little time to lose.

Trends are pointing upwards.Benton 20 — J. Edwin Benton, Professor of Political Science and Public Administration at the University of South Florida, former Professor at the University of Northern Iowa, PhD in Political Science and Government from Florida State University, M.A. in Political Science and Government from the University of South Carolina-Columbia, 2020 (“Challenges to Federalism and Intergovernmental Relations and Takeaways Amid the COVID-19 Experience,” The American Review of Public Administration, July 15th, Available Online at https://journals.sagepub.com/doi/full/10.1177/0275074020941698, Accessed on 07-14-2021, Jackson Hightower)As this article goes to press, several IGR trends have become obvious. First, there has been a conspicuous increase in joint productive and encouraging endeavors among states and among local governments (interstate and interlocal relations) as these governments work together for positive results in dealing with common challenges caused by COVID-19. Although the formation of formal and informal alliances between states and between local governments is not something new (we saw this during the Great Recession), such an activity has surged to higher levels lately. Another emerging pattern has been in the area of state–local relations. Here, it can be seen that a larger number of states have

been willing to grant greater flexibility to their local governments in implementing emergency orders and policies in recognition of the argument that “one size doesn’t fit all.” A third trend has been the deteriorating relations between the national government and the states that has been punctuated with high levels of tension and discord, thus leaving states in many instances to have to “go it alone” due to the lack of direction, attention, and leadership from Washington. Although the pattern became increasingly evident in the 1990s, it has become much more pronounced during the Trump presidency. Although not discussed above, federal–local relations continue to occur in basically the same fashion as they have over the years with administrators at these levels of government engaging in the usual give-and-take over the implementation of federal programs. However, to some degree, the interactions between these IGR actors are mediated through state officials.In summation, a mixed picture emerges from an early assessment of the adequacy of the American federalism amid the challenges posed by COVID-19. On one hand, there are some positive trends in some arenas of IGR (interstate and interlocal relations) that bode well for the health of American federalism and its ability to prove itself sufficient during crises such as the present. On the other hand, relations in other arenas of IGR (federal–state relations) continue to be marred by divisiveness and fractionalized actions and would seem to be the antithesis of what is needed to achieve the kind of coordination and efficiency to meet the challenges of the day and successfully accomplish things for the “collective good.” In addition, there are some encouraging signs in state–local relations that help insure the health of federalism. In the final analysis, it is hoped that these takeaways will be beneficial to scholars who focus on theory-building and practitioners who daily must strive to harness the potential in the American federal approach to work for the “general welfare.”

UQ – Water Water federalism strong nowPlumer 5/27 (Brad, climate reporter specializing in policy and technology efforts to cut carbon dioxide emissions. 5-27-2021, "E.P.A. to Modify Trump-Era Limits on States’ Ability to Oppose Energy Projects", No Publication, https://www.nytimes.com/2021/05/27/climate/epa-clean-water-act.html, accessed: 7-12-2021 JO)The Biden administration on Thursday said it planned to revise a Trump-era rule that limited the ability of states and tribes to veto pipelines and other energy projects that could pollute their local waterways. The Trump administration finalized the rule last June, saying that curbs on state authority were necessary because too many states had been using clean water laws to block pipelines, coal terminals and other fossil-fuel projects from going forward. Since then, 20 states and several tribes have

challenged the rule in court, contending that the constraints could hamper their ability to safeguard their rivers and drinking water. But under the Biden administration, the Environmental Protection Agency is now saying that it will move to bolster state authority . “We have serious water challenges to address as a nation and, as E.P.A. administrator, I will not hesitate to correct decisions that weakened the authority of states and tribes to protect their waters,” Michael S. Regan, who took over as head of the agency in March, said on Thursday. Oil and gas industry groups, which had praised the earlier Trump-era rule, said they were wary of major changes. “We hope that the revised rule will be written in a way that balances protecting clean water with the timely construction of essential infrastructure projects while not allowing the law to be manipulated for purposes unrelated to its original intent,” said Karen Harbert, the president and chief executive of the American Gas Association, which represents natural gas distribution and transmission companies. Climate Fwd A new administration, an ongoing climate emergency — and a ton of news. Our newsletter will help you stay on top of it. The rule in question involves Section 401 of the federal Clean Water Act, which for half a century has given states and tribes the right to review and certify federal permits for industrial facilities and other projects that could discharge pollution into major local waterways. Without that certification, the federal government cannot grant the permit. Over the past four years, several states have used that clean-water provision to block or delay fossil fuel projects from moving forward. In 2017, Gov. Jay Inslee of Washington refused to certify a federal water permit for a coal export facility on the Columbia River, citing the risk of significant spills as well as impacts on air quality. Last year, Gov. Andrew Cuomo of New York denied a permit for a pipeline that would have shipped natural gas into his state from Pennsylvania, based on the project’s “inability to demonstrate” that it could comply with water quality standards. The state also noted that increased burning of gas would exacerbate global warming, undermining New York’s plans for curbing greenhouse gas emissions. The Trump administration sharply criticized those moves, arguing that Democratic states were essentially conducting climate change policy under the guise of a law intended for a different purpose. In response, the Trump administration promulgated a new rule: States and tribes would have a one-year deadline to certify or reject projects under the Clean Water Act, and they could take only water quality into consideration when judging permits, not issues like climate change impacts. Andrew Wheeler, President Donald J. Trump’s second E.P.A. administrator, said that the new limits would “curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward.” States, he said, would no longer be allowed to use the law to object to projects “under the auspices of climate change.” The rule was part of a broader move by the Trump administration to speed up permitting and promote new fossil-fuel development. But Democratic lawmakers and environmental groups said the rule infringed on states’ rights . Section 401, they said, had been a critical tool for states to protect their drinking water quality. They also argued that the time restrictions would burden states with limited resources to evaluate complicated projects. Companies would have an incentive to run out the clock by delaying requests to submit data, they said. Environmental law experts also noted that the

Supreme Court in 1994 had explicitly affirmed states’ authority to impose conditions on projects based on state law. “The Supreme Court was very clear, states have broad authority to evaluate impacts not just on water resources, but also other environmental issues,” said Julia Anastasio, executive director of the Association of Clean Water Administrators, which represents state water permit administrators in all 50 states. The Biden administration did not specify exactly what changes it planned to make to the Trump-era rule. In a statement, the E.P.A. said that it intended to “strengthen the authority of states and Tribes to protect their vital water resources” while also “retaining elements that support efficient and effective implementation of Section 401.” “The Biden administration is going to have a tough balancing act on this rule,” Ms. Anastasio said. “With their infrastructure push, they are going to want to get more projects built, which will require state certifications for many of them.” Any changes that the E.P.A. makes to the rule will have to go through a public comment period before being finalized.

Biden is restoring authority over water protection to states now—EPA rule changes proveDino Grandoni, 5-27-21, reporter on the national desk of The Washington Post, focused on covering the Environmental Protection Agency, climate change and other environmental issues. “Biden administration wants to give more power back to states to block pipelines” https://www.washingtonpost.com/climate-environment/2021/05/27/biden-administration-looks-boost-states-ability-block-pipelines/Plans to build massive ports for shipping coal abroad, seaside terminals for supercooling gas and thousands upon thousands of miles of pipelines cutting through rivers and streams across the United States will all soon be getting extra scrutiny as the Biden administration prepares to give states and tribes more authority to block energy projects. The Environmental Protection Agency announced Thursday it will rewrite a rule finalized last year under President Donald Trump that upended the way the Clean Water Act had worked for half a century. The Trump administration tried to clear away regulatory hurdles for fossil fuel development after New York and other left-leaning states halted gas pipelines and other projects they feared may contaminate rivers, lakes and other waterways within their borders. Now, in an about-face, the agency is preparing to rework those regulations, potentially allowing state officials to take a broader array of environmental concerns — including climate change, an increasing concern among officials in blue states — into

account when deciding whether to approve major construction that could defile bodies of water. “We have serious water challenges to address as a nation and as EPA Administrator, I will not hesitate to correct decisions that weakened the authority of states and Tribes to protect their waters,” Michael Regan, President Biden’s EPA chief, said in a statement. While the Biden administration did not offer specifics on how it will amend the rule, the decision comes as the construction of new oil and gas pipelines has emerged as a major point of tension in Biden’s infrastructure push. For years, environmentalists have pressed federal and state officials to stop developers from laying additional oil and gas pipes, arguing that they endanger wetlands with potential spills and threaten to make global temperatures rise even more quickly as the fuel they deliver to market is burned. Heeding protesters’ calls, Biden revoked a permit for the controversial Keystone XL pipeline on his first day in office. At the same time, the president is also trying to square environmentalists’ demands with the desire for more well-paying construction jobs among labor unions, another important Biden constituency, which are urging the White House not to block other pipelines. But the administration’s announcement may end up emboldening blue states to block even more energy projects, taking some the heat off the White House. “It’s going to be a tricky balance for the administration as they begin to relook at this rule, which certainly is what our organization wants,” said Julia Anastasio, executive director and general counsel of the Association of Clean Water Administrators, which represents state water administrators in all 50 states. Under the Clean Water Act, the federal government cannot issue permits for any construction that potentially pollutes waterways without first getting permission from states and tribes. But the Trump administration limited the amount of time local officials had to review projects and restricted them to only consider impacts on water quality. Trump officials, along with Republicans in Congress, were particularly irked by a decision in New York to block a pair of gas pipelines, with state officials arguing last year that the “long-term use of fossil fuels is inconsistent” with combating climate change. And the state of Washington canceled a terminal that would have shipped Wyoming coal to power plants in Asia, arguing that there would be “irreparable and unavoidable harm” to the Columbia River and the fishing rights of Native Americans if approved. The EPA’s move was denounced by Sen. John Barrasso of Wyoming, top Republican on the Senate Energy and Natural Resources Committee, who said miners in his state would suffer if they could not ship their coal to markets abroad. “Once again, the Biden administration is choosing to cave to the extreme left at the expense of America’s energy workers," he said in a statement. “Washington State and east coast states have hijacked the Clean Water Act to slow down important American energy projects.” But Oregon Gov. Kate Brown (D), whose administration blocked the building of a pipeline and export terminal for liquefied natural gas before the Trump rule took effect, praised Biden’s EPA for reconsidering the rule. “The prior administration’s rule was not only harmful to the environment, it was corrosive to state, federal and tribal partnerships,” she said. Robin Rorick of the American Petroleum Institute, a major oil and gas lobbying group, defended the Trump rule for providing “a well-defined timeline and review process for water quality certifications," adding that it hopes to work with the Biden administration in crafting a new version. Among the projects awaiting state water certification is the Mountain Valley Pipeline. The proposed conduit, meant to bring gas from the Marcellus and Utica shales through West Virginia and Virginia, prompted protesters to perch on platforms high in the trees to halt construction. Regulators in both states are still weighing whether to allow the pipeline to cut through creeks with endangered fish, such as the brightly colored candy darter. North Carolina’s Department of Environmental Quality, which was once run by Regan, has twice denied a water permit for a part of the pipeline. “They want to cross some of the most sensitive aquatic habitats, not only in Virginia, but really in the Eastern U.S.” said David Sligh, conservation director of Wild Virginia, a local environmental group. Tracking Biden’s environmental actions Since taking power in January, the Biden administration has adopted nearly two dozen new environmental protections. Just this week, the EPA nixed a Trump-era rule restricting the research that regulators can consider when crafting public health measures. The Trump-era limits on states’ authority over pipeline projects may have been on shaky legal ground to start. More than a dozen states sued over the restrictions. Mark Ryan, a Clean Water Act expert who worked as a lawyer at the agency for 24 years, said the Trump administration ignored long-standing Supreme Court precedent giving states a wide berth in exercising their right to limit energy projects. “They pushed this one out clearly trying to help the pipeline industry,” Ryan said. “As they often did in that administration, they didn’t think things through carefully.”

Current statutes uphold deferenceLee ‘20 (Clifford T., Deputy Attorney General of the State of California,“Federalism and Water: The California Experience” 7-2020Golden Gate University Environmental Law Journal, Vol. 12, Iss. 1 https://digitalcommons.law.ggu.edu/gguelj/vol12/iss1/3///AF)

Congressional legislation adopted subsequent to California regarding the CVP has included savings clause language that further affirms the section 8 deference principle. In 1992, Congress adopted the CVPIA. Section 3406(b) of the CVPIA provides that: [t]he Secretary, immediately upon the enactment of this title, shall operate the Central Valley Project to meet all obligations under State and Federal law, including but not limited to the Federal Endangered Species Act, 16 U.S.C. 1531, et seq., and all decisions of the California State Water Resources Control Board establishing conditions on applicable licenses and permits for the project. 81 In 2016, Congress

passed the Water Infrastructure Improvements for the Nation Act (“WIIN Act”), a statute that requires certain operational changes to the CVP.82 Section 4012 of the WIIN Act affirmed the deference to state law principle by providing that: This subtitle shall not be interpreted or implemented in a manner that—preempts or modifies any obligation of the United States to act in conformance with applicable state law, including applicable State water law . . .83 The savings clauses in both the CVPIA and the WIIN Act thus uphold the deference principle. Tellingly, the clauses do not limit the deference principle to California Water Code provisions related to water rights. The CVPIA requires Bureau compliance with “state law. . .including but not limited to” State Water Board water right decisions.84 The WIIN Act 80 speaks of “applicable state law,” including state water law.85 These acts thus suggest, consistent with the Ninth Circuit decisions in Houston and Haugrud, that the deference principle extends beyond state statutes directly related to water rights and may include other state natural resources laws. The resurrection of section 8 of the Reclamation Act of 1902 under California and its judicial and legislative progeny is an important part of the deference principle’s historical narrative.

State primacy is the status quo in CWA enforcementFowler & Birdsall ’20 (Luke, Associate Professor in Public Policy and Administration and Director of the MPA program at Boise State University, Chris, Assistant Professor of Public Administration in the School of Public Service at Boise State University “Does the Primacy System Work? State versus Federal Implementation of the Clean Water Act” Winter 2020 Publius: The Journal of Federalism, Volume 51, Issue 1, https://academic.oup.com/publius/article-abstract/51/1/131/5830831?redirectedFrom=fulltext//AF)Programs in the United States that protect traditional navigable waters, interstate waters, and adjacent wetlands along with a few other special categories of waterways are collectively regulated under the CWA. A key part of the CWA is the National Pollution Discharge Elimination System (NPDES), which requires permits for all point source (e.g., discernible, confined conveyances such as a ditch or tunnel) pollutant discharges into specified waterways. In general, the goals is to limit water-based pollutants that enter surface waters through permit-based regulatory controls that assume that waterways will meet standards if discharges are at or below the maximum amount of pollutant discharges set for each body of water, known as the Total Maximum Daily Loads (TMDLs). Notably, whether states have primacy or not, they participate in the development of TMDLs (Houck 2002; Copeland 2003, 2005, 2016). To gain primacy, states must make a formal request to EPA and prove they have the necessary institutional, organizational, and workforce capacities to manage the program. Once granted primacy, states issue permits for pollutant discharges, monitor and enforcement compliance, and experiment with regulatory tools (Copeland 2003, 2006; Woods 2006b). Primacy provides states with the opportunity to match programs to specific water quality challenges by developing regulations for prominent or emerging contaminants in their jurisdictions. Although state-led programs may include all the same administrative components as EPA-led programs (e.g., permitting, compliance enforcement), state agencies may establish more or less stringent permit limits in cases where federal laws allow for regulatory discretion in establishing permit requirements, or they may be more or less strict in compliance enforcement than EPA. Additionally, relationships between state agencies and facilities may differ from those between facilities and EPA-regional offices that are geographically or politically distanced from the realities of daily operations (i.e., more or less

collaborative, compliance culture) (Fowler 2014; Copeland 2016). For instance, a research report from an environmental non-profit in Louisiana found that in 2012 ExxonMobil’s Baton Rouge refinery reported no accidents to EPA, but dozens to the Louisiana Department of Environmental Quality (LDEQ), which Clean Water Act suggests the refinery is more likely to cooperate with LDEQ than EPA ( Dubose

2013). This provides state agencies with an important advantage over EPA in that they have localized knowledge of and buy-in from facilities that can be leveraged to tailor programs to meet specific challenges that emerge. Although, it may also lead to bureaucratic capture. Regardless of how state agencies balance these interests, weak regulatory tools (e.g., permits are the only direct vehicle for enforcement) create a difficult implementation process. While compliance is compulsory and environmental organizations provide some monitoring, government inspections are rare and most violations are voluntarily reported (Adler, Landman, and

Cameron 1993; EPA 2000; Houck 2002; Copeland 2005). Despite these issues, state primacy is widespread . By 1987 when the Water Quality Act (WQA) created the last major expansion of NPDES, thirty-seven states had obtained primacy, with eight more states following suit in the ensuing years (EPA 2018a) (figure 1).1 Notably, there were no major CWA amendments or NPDES reforms post-1987, so the period after the WQA marks the contemporary era in CWA programs.

Current water protection policy upholds federalismFiorino & Weted ’21 (Daniel, Director at the Center for Environmental Policy at American University, Carley, doctoral student in the Department of Public Administration and Policy at American University, Environmental Federalism in a Polarized Era 1-8-2021 State and Local Government Review Vol 52 Issue 2 https://journals.sagepub.com/doi/abs/10.1177/0160323X20986225//AF)Divisions of authority vary; federal preemption occurs on a continuum, from extensive to limited. Most centralized is product regulation, given the value of national standards. For example, federal preemption is extensive in motor vehicle standards, as well as in two other product laws: the Toxic Substances Control Act (TSCA) and Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). At the other end of the continuum, primacy remains largely with the states, and federal involvement is limited and indirect. In these cases, specific federal laws may bear on aspects of an issue, but there is no statute governing it specifically. Examples are groundwater and hydraulic fracking. State groundwater programs are affected by federal

hazardous waste laws (the Resource Conservation and Recovery Act, Safe Drinking Water Act, and Clean Water Act); these affect but do not govern groundwater. While fracking became controversial with advances in technology that led to its expansion, Congress left fracking to states in the 2005 Energy Policy Act (Warner and Shapiro 2013). Lying between the extremes of centralized and decentralized is conjoint federalism , where states “are given the latitude to design and implement their own laws” within federal minimum standards and objectives (Lester 1995, 40). The Clean Air Act and Clean Water Act are prominent examples, as are the Safe Drinking Water and Resource Conservation and Recovery Acts. These variations are depicted in Table 2. On the left are more centralized programs where the federal government has primacy. On the right are programs where states have primacy. In the middle are programs fitting the conjoint model; these exhibit a more complex pattern of shared authority. These variations are further illustrated in four cases: the new TSCA (the Frank Lautenberg Chemical Safety Act for the twenty-first century), a centralized program; the Obama Clean Power Plan, a model for future relationships, despite its withdrawal by the Trump EPA; non-point source water, a mix of federal goals and state implementation; and natural gas fracking, now left largely to states.

UQ – Tribes Biden Administration restoring state and tribal authority over water recourse protection via the EPAUs Epa 21, 5-27-2021, "EPA Takes Action to Bolster State and Tribal Authority to Protect Water Resources," US EPA, https://www.epa.gov/newsreleases/epa-takes-action-bolster-state-and-tribal-authority-protect-water-resources-0, hkWASHINGTON – Today, the U.S. Environmental Protection Agency (EPA) announced its intent to revise the 2020 Clean Water Act (CWA) Section 401 Certification Rule after determining that it erodes state and Tribal authority. Through this process, EPA intends to strengthen the authority of states and Tribes to protect their vital water resources. “We have serious water challenges to address as a nation and as EPA Administrator, I will not hesitate to correct decisions that weakened the authority of states and Tribes to protect their waters,” said EPA Administrator Michael S. Regan. “We need all state, Tribal, local, and federal partners working in collaboration to protect clean water, which underpins sustainable economic development and vibrant communities. Today, we take an important step to realize this commitment and reaffirm the authority of states and Tribes.” “States and Tribes have relied on the Clean Water Act for almost 50 years to protect our waters and people, and EPA’s action is essential to restoring that historic authority,” said Oregon Governor Kate Brown. “The prior administration’s rule was not only harmful to the environment, it was corrosive to state, federal, and Tribal partnerships. Communities rely on clean water, businesses rely on clean water, and our environment is dependent on clean water. We welcome this important step by the Biden-Harris Administration to restore a strong, collaborative approach to protecting one of America’s most precious resources.” EPA intends to reconsider and revise the 2020 CWA Section 401 Certification Rule to restore the balance of state, Tribal, and federal authorities while retaining elements that support efficient and effective implementation of Section 401. Congress provided authority to states and Tribes under CWA Section 401 to protect the quality of their waters from adverse impacts resulting from federally licensed or permitted projects. Under Section 401, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into navigable waters unless the affected state or Tribe certifies that the discharge is in compliance with the Clean Water Act and state law, or waives certification.

UQ – Coop Fism Now Cooperative federalism is already dead – complete devolution is the squoFiorino & Weted ’21 (Daniel, Director at the Center for Environmental Policy at American University, Carley, doctoral student in the Department of Public Administration and Policy at American University, Environmental Federalism in a Polarized Era 1-8-2021 State and Local Government Review Vol 52 Issue 2 https://journals.sagepub.com/doi/abs/10.1177/0160323X20986225//AF)

Four trends in the last few decades challenge the old model of cooperative federalism. One is a polarization of environmental politics within Congress, which in turn reflects deep divisions among the public. A 2014 Pew Research Center report found that “Republicans and Democrats are more divided along ideological lines—and partisanship antipathy is deeper and more extensive—than at any point in the last two decades.” This survey found that 36 percent of Republicans and 27 percent of Democrats view the opposition as “a threat to the nation’s well-being (Pew 2014). Environmental issues reflect this divide. In the 1970s, the partisan gap in the League of Conservation Voters’ congressional voting scores was between 20 and 25 points; by 2015 it was 85 points (Dunlap, McCright, and Yarosh 2016), “making any sort of consensus or compromise on major ecological issues increasingly elusive” (Fiorino 2018, 170). One

consequence is that legislative action is rare . For example, the most recent, significant revision to the Clean Air Act occurred in 1990; it was 1987 for water quality and 1984 for hazardous waste. Unlike most other countries, the US Fiorino and Weted 139 has not adopted a comprehensive greenhouse mitigation law. The Obama EPA used a 2007 Supreme Court ruling on the Clean Air Act to regulate carbon emissions, an action the Trump administration reversed. Aging statutes mean Congress offers no direction; leaving federal and state agencies to operate in a legal vacuum that reinforces political conflicts . A second trend is increasingly divergent policy preferences among the states. Some states want discretion to use federal funds flexibly to better reflect their own priorities; others want the federal government to scale back implementation costs and reduce burdens on industry. Among the explanations for this divergence are economic structure and state political ideology. For example, Karapin (2016 and 2018) finds that states dependent on fossil fuels are less active on climate and energy. Regional political ideology also matters (McCright et al. 2020). Policy divergence and conflict is evident in patterns of high-stakes litigation. States like Oklahoma, West Virginia, Kentucky, and Texas regularly end up on opposite sides from states like California, New York, and Massachusetts in court battles over climate, water, and air policy. These lawsuits reflect current partisan and ideological trends among the states. In an analysis of six major, recent cases in which states were parties to litigation against the federal EPA, the authors found that 141 of 150 of positions taken by states (either opposing or supporting an environmental action) could have been predicted by the results of the 2016 election. That is, for all but nine litigation positions (6 percent), states supporting an environmental position in litigation went for Hillary Clinton; those opposing such a position in litigation cast their electoral votes for

Donald Trump (see Supplemental Text 1). Reinforcing these trends is erosion in federal funding . Scheberle (2013) notes that average federal funding for state programs fell from 43 percent of their total budgets in the 1980s to 23 percent in 2008. Since then, it has fallen further. The average level of federal support for state agency budgets in the 2015 fiscal year was 19 percent (ECOS 2017a). Given

pressures on budgets and growing federal deficits, these numbers are not likely to improve. With declining access to federal funds, state government and environmental agencies will have less of an incentive to cooperate. Contributingto all ofthis is the finaltrend, federal policy instability. Former EPA administrator William Ruckelshaus once wrote of recurring swings of the pendulum that accompany shifts in power: the “anti-environmental push of the mid-1990s was prompted by the proenvironmental excesses of the late 80s, which was prompted by the anti-environmental excesses of the early 80s, which was prompted by the pro-environmental excess of the 70s, and so on, for thirty years” (1998, 30). Consider actions the Trump administration took or is attempting to take: dismantling the Clean Power Plan, the heart of the Obama plan to cut carbon emissions from coal plants; cancelling stricter fuel economy standards for vehicles; pulling back a redefinition of waters of the US; withdrawing an Interior Department rule on stream restoration of surface mining of coal; reversing a ban of a pesticide (chlorpyrifos); and reconsidering theMercury and Air Toxics Standardsthat regulate emissions from coal plants. The chlorpyrifos decision already has been reversed in court while others, like the Clean Power Plan replacement (Affordable and Clean Energy rule) are being contested in court. (Eilperin 2018). This has destabilized environmental federalism. Polarization and gridlock in Congress mean that the federal government has little to offer in innovation and policy action on emerging issues. Increasing policy divergence among the states threatens even the modest degree of consensus that held the federal system together since the early 1970s. Declines in federal funding give states less of a stake in cooperative federalism. On top of all this, policy instability encourages states to pursue their own priorities and to respond to local political coalitions calling for less stringent, fewer standards

UQ – COVID Coronavirus has revitalized federalism.Sterling 20 — Shelby Sterling, policy analyst at the Texas Public Policy Foundation, former member of the Center for the American Future, J.D. from Teas A&M University School of Law, B.A. in Constitutional Emphasis from University of Oklahoma, 2020 (“A Renewal of Federalism,” Texas Public Policy Foundation, June 2nd, Available Online at https://www.texaspolicy.com/a-renewal-of-federalism/, Accessed 07-14-2021, Jackson Hightower)As some COVID-19 lockdowns begin to lift, life may look vastly different depending on where you live. In some states, freedom is returning. But in others, big government reigns supreme.The handling of COVID-19 in the United States has brought a renewed commitment to federalism with each governor making decisions tailored to their state. While the system is, in some sense, working as intended, it’s also been a clarifying moment for the country.The federal government made the right decision to refrain from a national lockdown, especially because it can’t do so. The Framers of the Constitution recognized the dangers of having a central government with too much power, which is why they created a new form of government—a government with a foundation of federalism.The federal government was designed to be just powerful enough to take care of the country but restrained enough to ensure that individual liberty could not be infringed upon. The U.S. Constitution outlines the enumerated powers of the federal government, but everything else is off-limits. Thus, the majority of government power lies with the states.In this case, the states have the power to combat COVID-19. This is essential because the situation in one state may be completely different from another. The situation and response in New York or California, with over 100,000 cases, are far different from Montana or Wyoming, which have less than 1,000 cases. By allowing a state to enforce its own policy, another state can observe how that policy works and evolves. Something may work for one state, but it may not work in every state. This is how the system was designed to work . States and their political subdivisions are closest to the people, which arguably leads them to have a better understanding of what their citizens need. That’s not to say everything has been perfect.Across the nation, some states and local governments have gone overboard, taking actions that come close to or blatantly violate various red lines. Although the protection of public health and safety is crucial, it is not a pass for states or local governments to infringe on civil liberties or fundamental rights.The system is designed to allow state and local governments a lot of power with a certain degree of leeway, but that power is not unlimited. It is restrained by the U.S. Constitution, which serves as a check against excessive power moves and egregious policy experimentation. Or at least it’s supposed to.Throughout the COVID-19 crisis, instances of government overreach have caught the attention of U.S. Attorney General William Barr. While directing U.S. attorneys to watch out for violations of individual rights, A.G. Barr added, “the Constitution is not suspended in times of crisis.” It is imperative that the rules of and protections within the Constitution are upheld, crisis or not.The Texas Supreme Court recently agreed with this, reminding cities that there is no pandemic exception to the Constitution. The Texas Supreme Court opinion went on to say, “[a]s more becomes known about the threat and about the less restrictive, more targeted ways to respond to it, burdens on constitutional liberties may not survive judicial scrutiny.”This message should be heard loud and clear by states and local governments who are continuing to infringe on civil liberties and fundamental rights. America was built on the foundation of “we the people” and it’s that foundation that Americans have the opportunity to stand up for themselves and protect their rights. Just as federalism protects us from an encroaching federal government, the people can also protect the U.S. Constitution from overreaching state and local governments.

U.S. federalism is strong now despite the coronavirus — it’s enabling a grassroots response to revitalize public health and economic growth. Chang et al. 20 — Caroline Chang, Associate at the Albright Stonebridge Group, holds a M.Sc. from the University of Oxford School of Global and Area Studies and a B.A. in Political Science and Chinese Language and Literature from the University of Notre Dame, Scott Moore, Director of the Penn Global China Program and a Lecturer in Political Science at the University of Pennsylvania, former Giorgio Ruffolo Post-Doctoral Research Fellow with the Belfer Center for Science and International Affairs at Harvard University, former International Affairs Fellow at the Council on Foreign Relations, holds a Doctor of Philosophy in Politics and Master of Science in Environmental Change and Management

from the University of Oxford, holds a Bachelor of Arts from the Woodrow Wilson School of Public and International Affairs at Princeton University, and Ali Wyne, Nonresident Senior Fellow at the Atlantic Council, Nonresident Fellow at the Modern War Institute, former Researcher for the Council on Foreign Relations, holds a Master in Public Policy of International and Global Affairs from the John F. Kennedy School of Government at Harvard University, holds a SB from the Massachusetts Institute of Technology, 2020 (“Federalism in the Time of Coronavirus: A Comparative US Advantage,” The Diplomat, May 29th, Available Online at https://thediplomat.com/2020/05/federalism-in-the-time-of-coronavirus-a-comparative-us-advantage/, Accessed 07-14-2021, Jackson Hightower)At the national level, the United States has indeed performed poorly in response to the pandemic. At the state and local level, however, it has provided countless examples of preparation, courage, and leadership that remain models for the rest of the world. As Washington charts the United States’ post-pandemic recovery, federalism remains a decisive comparative advantage — one that should play a central role in efforts to renew its soft power and counter China’s attempts to burnish its own. No amount of messaging can — or should — obscure the fact that federal inaction has cost the United States dearly. Over 100,000 Americans have died. More than 36.5 million have filed for unemployment benefits over the past two months, and Goldman Sachs projects that the unemployment rate could rise to over 25 percent — the highest figure by far since the Great Depression. It is virtually certain that earlier, more decisive action by the Trump administration could have mitigated these catastrophic outcomes. Fortunately, however, the nation’s governors and mayors have stepped up — and theirs is an example the United States should proudly share with the world.On April 13, the governors of California, Oregon, and Washington formed the Western States Pact, and their counterparts from seven states on the East Coast created a comparable coalition. On April 16, the governor of Minnesota announced that he was joining his colleagues from six other predominantly Midwestern states to form another pact. The member states of each regional group are sharing data and exchanging best practices with one another so that they can coordinate their reopenings in a judicious, incremental manner that best balances the imperatives of public health and economic revitalization. The 17 states that constitute these three pacts account for “nearly half the American population and an even higher percentage of the country’s economic activity.”As U.S. ties with China and even longstanding allies fray over Washington’s response to the pandemic, some states are leveraging their international connections to engage in creative diplomacy of their own. On April 18, Maryland secured test kits capable of performing 500,000 coronavirus tests; the governor and his South Korean born-wife were able to leverage their friendship with Lee Soo Hyuk, Seoul’s ambassador to Washington, to strike a partnership with Korean-based LabGenomics and charter a 777 Korean Air plane. Perhaps even more remarkable is the story of how Massachusetts secured 1.2 million N95 masks from China at the beginning of April.Meanwhile, an extraordinary array of businesses and nonprofit organizations have stepped up to furnish personal protective equipment for medical professionals at the hardest-hit hospitals, keep food pantries stocked, and help vulnerable segments of the public purchase groceries and medicines. America’s federal system enables this kind of grassroots response , and helps ensure that poor national-level leadership need not cripple America’s ability to address public policy challenges.

Internal

2NC – Spillover Water federalism disagreements trigger retaliation by federal agencies that interrupt broad enforcement regimes – spills overGoelzhauser & Konisky 20 (Greg, Associate Professor of Political Science at Utah State University. David, Associate Professor in the School of Public and Environmental Affairs and the coeditor of Failed Promises: Evaluating the Federal Government's Response to Environmental Justice (MIT Press). Publius: The Journal of Federalism, Volume 50, Issue 3, Summer 2020 https://academic.oup.com/publius/article/50/3/311/5870265?login=true pp. 311-343 JO)In recent years, policy differences have generated a more visceral and vindictive type of response, where the federal government, and at times President Trump himself, retaliates against states for decisions and policies that conflict with the administration’s preferences. This retaliation involves the federal government using its formal powers to punish states. We

refer to this retaliatory behavior as “punitive federalism.” Punitive federalism has perhaps been most evident in environmental policy .

This past year, the clearest example pertains to a dispute between the Environmental Protection Agency (EPA) and California. The clash began with a policy difference between the EPA and California over an August 2018 agency proposal to weaken an Obama-era rule strengthening fuel economy and greenhouse gas emission standards for cars and light-duty trucks. (These rules are jointly issued by the EPA and the National Highway Traffic Safety Administration (NHTSA).) California and several automakers thought the weakening went too far, but after negotiations over the proposed standards broke down, California reached an agreement with four automakers1—Ford, Volkswagen, Honda, and BMW—in which the companies voluntarily committed to meet a higher standard (Davenport and Tabuchi 2019). This voluntary agreement was a clear rebuke to the Trump administration that undermined its policy goal of weakening standards. A few months later, the EPA responded with several measures seemingly motivated by retribution. First, the EPA issued a final rule in September 2019 that withdrew a waiver it granted California in 2013 allowing the state to pursue its own program for reducing vehicle emissions. California used this type of waiver from preemption clauses of the 1970 Clean Air Act (CAA) for nearly fifty years to regulate vehicle emissions at levels that exceeded federal standards. For many years, at least a dozen other states also adopted these higher standards.2The Trump administration justified waiver withdrawal by emphasizing its desire to create a nationwide standard to simplify compliance for automakers based on its lower standard, rather than a higher standard backed by California. In announcing the decision, EPA Administrator Andrew Wheeler said, “We embrace federalism and the role of states. But federalism does not mean that one state can dictate standards for the entire country” (Joselow 2019). Although the waiver withdrawal does not invalidate the voluntary agreement California reached with automakers, it challenges other policies California has in place to address pollution emissions from cars and trucks. The Trump administration’s response was, however, just the beginning. Later the same month, the Department of Justice (DOJ) opened an antitrust investigation into the automakers agreeing with California, asserting that their actions might limit consumer choice. This investigation was closed without further action in February 2020 (Davenport 2020). The Trump administration also initiated a series of retaliatory measures against California, which extended into several additional areas of the state’s environmental policy. First, the EPA threatened to cut off federal highway funding, accusing the state of failing to fully implement CAA provisions. In his letter to Mary Nichols, the Chair of the California Air Resources Board, Wheeler alleged that “California has the worst air quality in the United States,” pointing to a large backlog of CAA State Implementation Plans as a key reason (Wheeler 2019a). In a response letter, Nichols indicated that the state had been working for years with the agency to clear this backlog, arguing that the slow progress was due to EPA delays, not the state(Nichols 2019).As a second example, just two days later, Wheeler sent another letter to California, this time questioning the state’s efforts to effectively implement the Clean Water Act (CWA) and Safe Drinking Water Act. This September 2019 letter specifically emphasized the impacts of homelessness in Los Angeles and San Francisco, indicating that the state and cities were not doing enough to mitigate risks to human health and the environment (Wheeler 2019b).3The EPA then sanctioned San Francisco with notices of violation for its three wastewater treatment plants, alleging that they were out of compliance with various CWA requirements (Wittenberg 2019b), even though three weeks prior agency officials expressed support for a new permit for one of the facilities. The EPA’s actions toward California drew a response from the Environmental Council of the States(ECOS)—an organization that represents state environmental agencies. In a letter to Wheeler it stated: “ECOS is seriously concerned about a number of unilateral actions by U.S. EPA that run counter to the spirit of cooperative federalism and to the appropriate relationship between the federal government and the states who are delegated the authority to implement federal environmental statutes” (ECOS 2019).As a final example, the DOJ filed a lawsuit against California’s greenhouse gas cap and trade emissions program, asserting that it was unlawful because it included Quebec. Specifically, the DOJ argued that only the federal government is constitutionally permitted to enter into treaties or agreements with foreign governments. California Governor Gavin Newsom (D) characterized the DOJ case as a “political vendetta,” suggesting that “[t]his latest attack shows that the White House has its head in the sand when it comes to climate change and serves no purpose other than continued political retribution” (cited in Friedman and Benner2019).

These actions represent a pattern of response , and their timing suggests that federal officials intend to seek retribution against states that adopt policies or take actions contradicting its preferences. Outside of environmental policy, the Trump administration’s withholding of grant funds to “sanctuary” jurisdictions also exemplifies punitive federalism. New federal grant conditions require state and local governments to (i) implement a policy guaranteeing compliance with federal requests for advance notice of releasing any undocumented person; (ii) implement a policy guaranteeing federal access to undocumented people who are incarcerated; and (iii) certify compliance with a federal immigration law designed to coordinate vertical information sharing (see, e.g., City of Providence v. Barr, 19-1802). There is a federal circuit court split on whether federal law delegates power to the attorney general to impose these conditions. Absent a policy change, the Supreme Court will likely resolve this split. The Trump administration’s notice of violation to California for mandating private health insurers to cover abortion procedures may be another example of punitive federalism. This notice alleged that California was in violation of the Weldon Amendment, which prohibits interference with health care providers for refusing abortion coverage. Although several states have similar coverage requirements, the administration only targeted California. Strategically announced hours before Trump spoke at a March for Life rally, Governor Newsom responded, “Despite a federal opinion four years ago confirming California’s compliance with the Weldon Amendment, the Trump administration would rather rile up its base to score cheap political points and risk access to care for millions than do what’s right” (C.Dwyer 2020). The state formally responded that its law is consistent with the Weldon Amendment and the attorney general declared in part, “California has a sovereign right to protect women’s reproductive rights” (Press Release 2020).Concerns about punitive federalism also swirled with suggestions that the Trump administration made pandemic response decisions based in part on political allegiance. Responding to criticism from some Democratic governors, Trump said he told Vice President Pence, “[D]on’t call the governor of Washington. You’re wasting your time with him. Don’t call the woman in Michigan” (Wilkie and Breuninger 2020). When Trump also said states “have to treat us well” more generally, it raised concerns “that loyalty and praise could be helpful for states seeking federal help” (Costa and Rucker 2020). Michigan Governor Gretchen Wilmer (D) claimed the federal response was “patchwork, based on whomever the governor is” (Kransz 2020). And when Florida received everything it requested from the federal stockpile while Democratic-led states like Michigan received “only a fraction” of their requests, officials pointed to the close relationship between [Governor Ron] DeSantis and Trump’ as well as Florida’s ‘electoral importance’ (Olorunnipa et al. 2020).

Punitive federalism may have also motivated other disaster relief positions. After wildfires ravaged California, Trump disparaged the state and its governor for seeking federal aid and threatened to withhold further assistance, prompting Representative Ted Lieu (D-CA) to respond that Trump was “the president for all Americans” and that “nature does not discriminate based on ideology” (Bacon2019). Trump also withheld billions of dollars in congressionally allocated relief for Puerto Rico following a series of devastating earthquakes. Trump’s associates reportedly relayed the president’s view that “Puerto Ricans had complained too much,” while the president expressed frustration that Puerto Rico received more disaster relief money than certain Republican-led states even though, in his view, the Puerto Rican “government can’t do anything right [and] the place is a mess”(Karni and Mazzei 2019). Representative Nydia Velazquez (D-NY), a Puerto Rican native and the first Puerto Rican woman to serve in Congress, alleged that the withholding simply indicated “the administration’s disdain for the people of Puerto Rico” (Booker 2020).

These examples provide anecdotal evidence consistent with punitive federalism. We are not asserting that this phenomenon is unique to the Trump administration , though it does seem particularly prevalent. Beyond these domestic examples, the administration has pursued retaliatory actions in foreign affairs (e.g.,tariff threats and troop withdrawals) and personnel management (e.g., verbal attacks on or dismissals of officials involved in the Russian election interference investigation and impeachment proceedings). In this sense, the brand of punitive federalism that has emerged during the Trump administration may reflect the president’s personality and idiosyncratic political approach, which involves rewarding friends and punishing adversaries. However, the roots of punitive federalism might lie deeper, and this type of retaliatory behavior may have been prevalent in past presidential administrations and may be common in other countries. These questions are ripe for further inquiry.

Federal water policy triggers broader inquiries into state commerce power – implicates ALL state authorityHuffaker et al 11 (Ray, Member of Department of Agricultural Economics, Washington State University. Ari Michelsen, Expert at Agricultural Research and Extension Center, Texas A&M University. Joel Hamilton, Member of Department of Agricultural Economics and Rural Sociology, University of Idaho. Marshall Frasier, Member of Department of Agricultural and Resource Economics, Colorado State University. 5-31-11 “THE UNEASY HIERARCHY OF FEDERAL AND STATE WATER LAWS AND POLICIES” https://opensiuc.lib.siu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1168&context=jcwre pp. 5-6 JO)The federal government also has intervened in state water policy when a state law encroaches on powers delegated to the Congress by the U.S. Constitution, or when the resolution of interstate water disputes requires constitutionally mandated federal consent. The Commerce Clause11 of the U.S. Constitution provides that “[t]he Congress shall have the Power . . .[t]o regulate Commerce . . . among the several States.” The U.S. Supreme Court (Supreme Court) has held that this express grant of congressional power also implicitly restricts state power to impose undue burden on interstate commerce. This implicit restriction is referred to as the “dormant commerce clause.” The Supreme Court is the final arbiter regarding the consistency of state laws with the dormant commerce clause.

State laws restricting the export of instate water resources have aroused Supreme Court scrutiny under the dormant commerce clause. In City of Albus v. Carr,12 the Supreme Court resolved that groundwater is an article of commerce subject to scrutiny under the Commerce Clause, and struck down a Texas law forbidding the interstate exportation of groundwater without legislative approval as an impermissible burden on interstate commerce . In Sporhasev. Nebraska,13 the Supreme Court formulated its two-pronged procedure for determining the constitutionality of interstate water export statutes. A statute found to be “facially” discriminatory (i.e., one explicitly banning interstate commerce) is subjected to the Supreme Court’s strictest scrutiny requiring that the state prove that the statute serves a legitimate state purpose, that it is narrowly tailored to that purpose, and that no adequate less-discriminating alternatives exist. Nebraska’s “reciprocity” statute (requiring that the importing state’s law would need to grant reciprocal rights to export its groundwater for use in Nebraska) failed to pass this test, and thus was found to be an unconstitutional burden on interstate commerce. Alternatively, a state statute not found to be facially discriminatory is subjected to lesser scrutiny requiring that the Supreme Court find that it strikes a permissible balance of federal and legitimate state interests. Nebraska’s “finding” statute (requiring that the withdrawal of the groundwater to be exported be reasonable, not contrary to conservation, and not detrimental to the public welfare)passed constitutional muster on this basis. The above line of decisions has elicited strategic behavior on the part of states attempting to improve their chances of successfully defending restrictions on interstate water exports against constitutional challenge. One such behavior is to restrict intrastate water transfers to a similar extent as interstate transfers. The underlying legal reasoning seems to be that a state cannot be found to unconstitutionally discriminate against out-of-state water transfers if it imposes similar restrictions on in-state transfers. The opportunity cost of this behavior is that the state foregoes the gains from trade resulting from beneficial intrastate water transfers. The Sporhase decision does not offer great hope that such behavior will salvage an otherwise impermissible restriction on interstate trade. Since blatant protectionism is not a legitimate state interest for a water export statute, a state generally will specify water conservation as the desired objective. The Supreme Court will require that the restriction operate even handedly by dividing the burden of conservation equally between in-state and out-of-state users. However, as demonstrated in Sporhase, the key to this determination is whether the state similarly restricts in-state water use (e.g., groundwater pumping) – not whether the water once extracted can be traded in-state.

Impact

Impact – Warming Federalism is key to solve warming – solves global spillover by leveling the playing fieldIbbitson 2017 (John, M.A. in journalism, senior fellow at the Centre for International Governance Innovation, 6.2.17, The Globe and Mail, “Federalism might be our best hope in fighting climate change,” https://www.theglobeandmail.com/news/politics/federalism-might-be-our-best-hope-in-fighting-climate-change/article35197342/, Accessed: 7.12.21)Federal systems of government are splendid things: robust, flexible, able to accommodate conflicting local values. When it comes to the fight against global warming, federalism is the ace up Canada’s sleeve, while south of the border it’s America’s last, best hope. Conservative prime minister Stephen Harper was right to withdraw Canada from the Kyoto Protocol on climate change in 2011. The Chrétien government had made promises at Kyoto that no Canadian government could keep without wrecking the economy. The expanding oil sands in Alberta had become a major driver of growth. The U.S. Congress was blocking president Barack Obama’s efforts to fight global warming. Any Canadian tax on carbon without an equivalent American action would simply kill Canadian jobs, without lowering the planet’s temperature even a smidgeon, Mr. Harper argued, and that argument made sense. But, although Ottawa wasn’t ready to fight climate change, some provincial governments thought differently. Quebec had a natural advantage, because most of its electricity is generated by hydro. The Liberal government in Ontario wanted to replace lost manufacturing jobs in traditional industries by developing green-energy technology. British Columbia premier Gordon Campbell believed that a carbon tax was the most business-friendly way to lower emissions. When Rachel Notley’s NDP came to power in Alberta, committed to bringing that province in line with others in the fight against climate change, Mr. Harper shrugged. Ottawa’s job, he believed, was to get a pipeline to tidewater somehow, somewhere. If the provinces wanted to go all green, they were welcome to knock themselves out. But then Mr. Harper was replaced by Justin Trudeau, and Mr. Obama by Donald Trump. The White House is now even more of a climate-change-denier than the House of Representatives or Senate, while the Liberal government is as enthusiastic about fighting climate change as any province. In Canada’s case, federalism worked to provide in advance what Ottawa now seeks: a national (if piecemeal) strategy to reduce carbon emissions through provincial cap-and-trade or carbon tax schemes, with only Saskatchewan’s Brad Wall seriously offside. In America’s case, federalism and the entrepreneurial energy of the private sector have combined to limit the damage inflicted by Washington. About 30 states have green-energy strategies in place. Elon Musk resigned Thursday from two of Mr. Trump’s advisory councils in protest over the President’s decision to withdraw the United States from the Paris accord on climate change. Of course he resigned: His Tesla Model 3 electric car will soon hit the streets in an increasingly competitive electric vehicle market, going head-to-head with, among other competitors, the Chevy Bolt and the Volkswagen eGolf. The battle in North America against global warming will be most successfully fought in dealer show rooms. Mr. Trump, with his Luddite refusal to recognize the transformation under way in his own country’s economy, is making that battle harder to win, which is why dozens of mayors and CEOs vowed to continue efforts to reduce carbon dioxide emissions in the wake of the President’s announcement.

Climate change causes extinction and turns all scenarios for nuclear warScheffran et al 16 Prof. Dr. Jurgen Scheffran (Professor at the Institute for Geography at the University of Hamburg and head of the Research Group Climate Change and Security in the CliSAP Cluster of Excellence and the Center for Earth System Research and Sustainability (CEN). He holds a Ph.D. in physics from Marburg University and has worked at Technical University of Darmstadt, the Potsdam Institute of Climate Impact Research and the University of Illinois), Dr. John Burroughs (Executive Director of the New York-based Lawyers Committee on Nuclear Policy (LCNP), the UN Office of International Association of Lawyers Against Nuclear Arms (IALANA). He represents LCNP and IALANA in Nuclear Non-Proliferation Treaty review proceedings, the United Nations, and other international forums), Anna Leidreiter (Senior Programme Manager Climate and Energy at the World Future Council. She carries out policy research and develops advocacy campaigns with the climate energy team), Rob van Riet (Coordinator of the Peace and Disarmament Programme at the World Future Council), and Alyn Ware (peace educator and nuclear disarmament consultant. He is the Global Coordinator of Parliamentarians for Nuclear Non-proliferation and Disarmament, Director of the Basel Peace Office, a Consultant for the International Association of Lawyers Against Nuclear Arms, a member of the World Future Council and co-chair of its Peace and Disarmament Programme). “The Climate-Nuclear Nexus: Exploring the linkages between climate change and nuclear threats.” World Future Council. Second Edition, April 2016. http://www.worldfuturecouncil.org/file/2016/01/WFC_2015_The_Climate-Nuclear_Nexus.pdf

Climate change and nuclear weapons represent two key threats of our time. Climate change endangers ecosystems and social systems all over the world. The degradation of natural resources, the decline of water and food supplies, forced migration, and more frequent and intense disasters will greatly affect population clusters, big and small. Climate-related shocks will add stress to the world’s existing conflicts and act as a “threat multiplier” in already fragile regions. This could contribute to a decline of international stability and trigger hostility between people and nations. Meanwhile, the 15,500 nuclear weapons that remain in the arsenals of only a few states possess the destructive force to destroy life on Earth as we know multiple times over. With nuclear deterrence strategies still in place, and hundreds of weapons on ‘hair trigger alert’, the risks of nuclear war caused by accident, miscalculation or intent remain plentiful and imminent. Despite growing recognition that climate change and nuclear weapons pose critical security risks, the linkages between both threats are largely ignored. However, nuclear and climate risks interfere with each other in a mutually enforcing way. Conflicts induced by climate change could contribute to global insecurity, which, in turn, could enhance the chance of a nuclear weapon being used, could create more fertile breeding grounds for terrorism, including nuclear terrorism, and could feed the ambitions among some states to acquire nuclear arms.

Impact – Solves Civil Conflict Federalism prevents civil conflicts from escalating to global warLawoti 3/18/09 “Federalism for Nepal”, Mahendra Lawoti is professor at the department of political science at Western Michigan University, writer of several books and Ph.D. from the University of Pittsburgh with dissertation of Exclusionary Democratization: Multicultural Society and Political Institutions in Nepa., http://www.telegraphnepal.com/backup/telegraph/news_det.php?news_id=5041Cross-national studies covering over 100 countries have shown that federalism minimizes violent conflicts whereas unitary structures are more apt to exacerbate ethnic conflicts. Frank S. Cohen (1997) analyzed ethnic conflicts and inter-governmental organizations over nine 5-year –periods (1945-1948 and 1985-1989) among 223 ethnic groups in 100 countries. He found that federalism generates increases in the incidence of protests (low-level ethnic conflicts) but stifles the development of rebellions (high-level conflicts). Increased access to institutional power provided by federalism leads to more low-level conflicts because local groups mobilize at the regional level to make demands on the regional governments. The perceptions that conflicts occur in federal structure is not entirely incorrect. But the conflicts are low-level and manageable ones. Often, these are desirable conflicts because they are expressions of disadvantaged groups and people for equality and justice, and part of a process that consolidates democracy. In addition, they also let off steam so that the protests do not turn into rebellions. As the demands at the regional levels are addressed, frustrations do not build up. It checks abrupt and severe outburst. That is why high levels of conflicts are found less in federal countries. On the other hand, Cohen found high levels of conflicts in unitary structures and centralized politics. According to Cohen (1997:624): Federalism moderates politics by expanding the opportunity for victory. The increase in opportunities for political gain comes from the fragmentation/dispersion of policy-making power… the compartmentalizing character of federalism also assures cultural distinctiveness by offering dissatisfied ethnic minorities proximity to public affairs. Such close contact provides a feeling of both control and security that an ethnic group gains regarding its own affairs. In general, such institutional proximity expands the opportunities for political participation, socialization, and consequently, democratic consolidation. Saidmeman, Lanoue, Campenini, and Stanton’s (2002: 118) findings also support Cohen’s analysis that federalism influences peace and violent dissent differently. They used Minority at Risk Phase III dataset and investigated 1264 ethnic groups. According to Saideman et al. (2002:118-120): Federalism reduces the level of ethnic violence. In a federal structure, groups at the local level can influence many of the issues that matter dearly to them- education, law enforcement, and the like. Moreover, federal arrangements reduce the chances that any group will realize its greatest nightmare: having its culture, political and educational institutions destroyed by a hostile national majority. These broad empirical studies support the earlier claims of Lijphart, Gurr, and Horowitz that power sharing and autonomy granting institutions can foster peaceful accommodation and prevent violent conflicts among different groups in culturally plural societies. Lijphart (1977:88), in his award winning book Democracy in Plural Societies, argues that "Clear boundaries between the segments of a plural society have the advantage of limiting mutual contacts and consequently of limiting the chances of ever-present potential antagonisms to erupt into actual hostility". This is not to argue for isolated or closed polities, which is almost impossible in a progressively globalizing world. The case is that when quite distinct and self-differentiating cultures come into contact, antagonism between them may increase. Compared to federal structure, unitary structure may bring distinct cultural groups into intense contact more rapidly because more group members may stay within their regions of traditional settlements under federal arrangements whereas unitary structure may foster population movement. Federalism reduces conflicts because it provides autonomy to groups. Disputants within federal structures or any mechanisms that provide autonomy are better able to work out agreements on more specific issues that surface repeatedly in the programs of communal movement (Gurr 1993:298-299). Autonomy agreements have helped dampen rebellions by Basques in Spain, the Moros in the Philippines, the Miskitos in Nicaragua, the people of Bangladesh’s Chittagong Hill Tracts and the affairs of Ethiopia, among others (Gurr 1993:3190) The Indian experiences are also illustrative. Ghosh (1998) argues that India state manged many its violent ethnic conflicts by creating new states (Such as Andhra Pradesh, Gujurat, Punjab, Harayana, Arunachal Pradesh, Goa, Himachal Pradesh, Meghalaya, Mizoram and Nagaland) and autonomous councils (Such as Darjeeling Gorkha Hill Council, Bodoland Autonomous Council, and Jharkhand Area autonomous Council, Leh Autonomous Hill Development Council). The basic idea, according to Ghosh (1998:61), was to devolve powers to make the ethnic/linguistic groups feel that their identity was being respected by the state. By providing autonomy, federalism also undermines militant appeals. Because effective autonomy provides resources and institutions through which groups can make significant progress toward their objectives, many ethnic activities and supporters of ethnic movements are engaged through such arrangements. Thus it builds long-term support for peaceful solutions and undermines appeals to militant action (Gurr 1993:303). Policies of regional devolution in France, Spain and Italy, on the other hand, demonstrate that establishing self-managing autonomous regions can be politically and economically less burdensome for central states than keeping

resistant peoples in line by force: autonomy arrangements have transformed destructive conflicts in these societies into positive interregional competition".

Impact – Solves Warming Decentralized federalism’s critical to environmental protection and mitigating climate change – centralization fails Balme, Professor at the Paris School of International Affairs, 14(Richard, “Multi-Level Governance and the Environment: Intergovernmental Relations and Innovation in Environmental Policy”, Environmental Policy and Governance, Volume 24, Issue 3)It is also worth noting that this evolution, initiated in the 1970s and accelerated thereafter, occurred in parallel with the introduction of environmental policy and politics, under the joint pressure of industrialization and urbanization. Developed and then developing countries created protection agencies or ministries, and initiated a whole body of legislation, jurisprudence and regulation specifically devoted to the environment. Decentralization is often seen as a condition for the political system's capacity for environmental policy, as it allows for the introduction of environmental institutions at the different levels of the state (Weidner and Jänicke, 2002). While the early measures of the 1970s and 1980s were primarily framed under the concept of environment conservation, interactions with other policy sectors such as agriculture, industry, health and energy intensified quickly, and the initial set of policy values evolved towards sustainable development, and more recently towards management of the earth ecosystem with climate change policies. Undoubtedly, these cognitive changes have been progressive and remain unevenly distributed across countries and policy subsystems. Nevertheless, during each of these transformative phases, relations between levels of government intensified. National authorities usually negotiate international treaties such as the Kyoto Protocol or the United States/Canada acid rain treaty. They also set environmental standards and enforce them upon subnational governments. However, in the European case, the European Union (EU) institutions rather than member states play a fundamental role in negotiating these agreements and in defining environmental norms. The competencies of states in federal governments widely vary, for instance between the United States and the EU (Vogel et al., 2005) or between the United States and Canada where provinces rather than the federal government define standards for air or water quality. Local governments such as counties and municipalities usually operate refuse collection and recycling, decide upon land-use zoning, transportation planning and construction, and often manage local natural resources such as wild forests, groundwater or coastal areas. Because of this variance in the distribution of legal competencies, these central–local relations are anything but simple. In the United States, policies addressing climate change adopted by the federal government remain comparatively limited. This does not preclude significant policy initiatives at the state level, but their coordination remains at best partial, and contributes to limit their effectiveness. In the EU, the role of European integration, and in particular of the Commission and the European Court of Justice, in promoting environmental policies in the member states has been widely reported (Kelemen, 2000; Krämer, 2005; Andonova and VanDeveer, 2012). However, the environment is also one major policy area where the implementation deficit of EU legislation remains important. In China, observers of environmental policy regularly emphasize the implementation gap between legislation and agenda setting at the national level, and the realities of environment protection in provinces and localities. In all three cases central–local relations are identified as critical aspects of environmental policy design and implementation. Decentralization is also regularly advocated by evaluation studies of environmental policies (FAO, 2002; Organisation for Economic Cooperation and Development, 2009; Rodrigo et al., 2009), and part of the policy packages associated with ‘good governance’ prescriptions (Batterbury and Fernando, 2006). However, we do not have a clear understanding, if not a theory, of the structural constraints imposed by different types of central–local relations on environmental policy. Nor do we properly comprehend how changes in territorial arrangements impact on the capacity for adjustment and innovation in environmental policy. Finally, we also need to better explore how the dynamics of environmental policy, with its new political conflicts and policy instruments, creates new incentives and opportunities for revising the territorial arrangements of public policy. The Environmental Implications of Territorial Arrangements: Disentangling the Conundrum Territorial arrangements may impact the environment in several ways. Oates (1972), in his foundational study, argued that central governments are confronted with difficulties in providing optimal local variation in policy stringency. By contrast, decentralization allows jurisdictions to control for their own pollution levels. They may therefore be tempted to engage in a ‘race to the bottom’ in environmental regulation, to protect industrial interests and to attract ingoing investments, lowering general environmental quality. The level of transboundary pollutants in particular is expected to be higher under decentralization, as jurisdictions can easily free-ride on each other in that case. In the same vein of theoretical economics, Baumol and Oates (1988: 284) explore the theoretical foundations for the decentralization of environmental policy. They point to the need for centralized decision-making as well as for decentralized participation in the setting of environmental standards. They argue that the competition for jobs between localities can be consistent with Pareto-optimal levels of environmental quality. Nevertheless, excessive environmental degradation can easily result from regions or localities engaging in rent-seeking measures to attract capital. In parallel with this normative literature, the

empirical effects of decentralization on environmental outcomes are increasingly documented. Most studies are national and US-based (List and Gerking, 2000; Millimet, 2003; Cutter and DeShazo, 2007). Sigman (2007), using a cross-country database and measuring levels of a local and regional pollutant, finds greater interjuristictional variation in pollution in federal than in non-federal countries. Her analysis supports the traditional view that decentralization allows for policies better suited for local conditions. However, she does not conclude upon a ‘race to the bottom’ in pollution levels. Most studies analysing processes of environmental policy rather than mere pollution outcomes reach more complex and ambivalent conclusions (Young et al., 2008; Paavola et al., 2009). Indeed, the precise influence of territorial arrangements is hard to identify for three major reasons. First, variations in the institutional structures of the state and in the effective design of intergovernmental relations are both significant and complex. They include constitutional, fiscal, administrative and socio-political aspects, which are not always and not necessarily convergent, especially when intermediary cases are considered. Therefore, the idea of classifying the wide range of situations in the territorial organization of the state under a simple typology or along a single continuum is not as easy, nor as appropriate, as it may seem. Secondly, these territorial arrangements do not operate in a vacuum, but are embedded within other institutional structures such as the parliamentary, presidential or authoritarian type, or the regime, extent of welfare redistribution, class and cultural structure of the population, and configuration of the ecosystem formed by the urban network. Finally, environmental policy itself is a rather composite category, and a given territorial arrangement may not have a similar influence on the provision of different environmental goods, for instance on the conservation of local biodiversity and on the deployment of renewable energy. Territorial autonomy is in particular likely to favour NIMBY (‘Not in my backyard’) types of mobilization, whereby residents oppose local negative externalities associated with decision-making. Such mobilizations are often able to limit the implantation of polluting industries or constructions. But localities also regularly resist to the creation of natural reserves or energy policies when they impose constraints on local business and industries. Isolating empirically the ‘net’ impact of central–periphery relations on the different aspects of environmental policy will definitely require further and more detailed research and investigation. To advance in that direction we can start by considering these potential effects under a simple analytical dichotomy between conditions of ‘pure’ forms of centralization versus federalism. Under centralization, concentration of powers on the top level of government is extreme, and we assume that the central government has a monopoly over environmental legislation and agenda setting, that it collects taxes, controls public expenditures, and ensures homogeneity of regulation and provides for redistribution across local governments. Local governments are placed in a position of implementing the policy defined at the central level. Under federalism, by contrast, legislation, taxing and spending are shared competencies between the federal government and lower-tier levels alternatively called states, regions or provinces. All of these units benefit from their constitution and from the capacity to adopt their own legislation, at least in some policy areas. We consider federalism analytically as the most extreme case of decentralization, the one in which territorial governments have the largest degree of discretion and power vis-à-vis the central government. In such a case policy is co-determined and alternatively or jointly implemented by the two levels of government. A powerful constitutional court exerts judicial review to regulate the discrepancies and divergences in policy orientations likely to develop in such a system. For unitary decentralized systems, local and regional governments have some limited room for policy initiative and some discretionary power over public spending, within the limits set by national legislation. When the environment is considered, centralization ensures the unity of legislation and regulation across territories, and the consistency of environmental policy with international engagements. Normative consistency has some advantages, including clarity in policy design, a principle of equality in access to environmental goods, and the capacity for central government to implement policy without bargaining with sub-national units. At first sight it allows the government to escape the principal–agent relation coming with federalism or decentralization. In the theory of collective action (Olson, 1965), a centralized distribution of authority provides a solution to the problems of cooperation and coordination in public goods provision among multiple actors. Centralization therefore seems more adequate than federalism to provide global environmental goods, such as greenhouse gas (GHG) emission reductions. Nevertheless, centralization also has some corresponding limitations: little reactivity to local circumstances, a limited capacity for innovation through local experimentation, and a strict dependence on state bureaucracies and top-down processes for implementation. In a pure centralized system, the principal–agent problem at the origin of the implementation gap is in a way translated from the relations between different levels of government to the relation between the government and public administration. The bureaucracy in charge of environmental protection may be more immune than local governments to the pressure of local interests. However, it may not be as powerful as needed within the state apparatus to impose environmental policy to ministries such as construction, transportation, energy or agriculture, usually benefiting from strong networks and connections at the local level. Therefore, in the case of conflicting priorities, implementation of environmental policy is not necessarily more effective with centralization. Environmental policy development under a strictly centralized policy-design may be limited by four kinds of factors: (1) the hostility or lack of political will on environmental issues by the central government; (2) the reluctance or absence of proper incentives for local or regional governments in implementing

the policy; (3) a shortage in state capacities in the policy subsystem, e.g. regarding legislation, budgeting and staffing of environmental policy, and the lack of political clout of environmental bureaucracy with regard to other stakeholders such as firms, labour unions, local leaders and other ministries; and (4) a deficit of compliance mechanisms, including controlling, monitoring, reporting, information disclosure, evaluation, sanctioning and litigation. By contrast, in a federal system, elected territorial governments have the capacity to issue environmental legislations and regulations, and are directly in charge of their implementation. Territorial governments are in principle dependent on their local constituencies and are therefore more likely to be responsive to local environmental circumstances, such as relating to water quality, air quality or the preservation of natural areas. This, however, presupposes that citizens are indeed affected and sensitive to these issues. If they have ‘green preferences’, or if they are significantly exposed to environmental damages or risks, there is a case for decentralization as improving policy responsiveness. Obviously, place matters for the quality of environment. Local leaders are therefore probably in a better position than remote national legislators to marshal compromises among social interests vested in environmental policy-making. Similarly, local bureaucracies may be better skilled and motivated to develop policy innovations in cooperation with non-governmental organizations (NGOs) and civil society's organizations, and better able to contribute to the provision of local environmental goods. When costs are internalized within territorial jurisdictions, local institutions may therefore facilitate the bottom-up emergence of self-governing arrangements managing common resources (Ostrom, 1990).

State action is effectively combating climate change, but it’s vulnerable – federalism is keyArroyo 19 Vicki Arroyo, Professor from Practice, Georgetown Law School; Executive Director, Georgetown Climate Center10-31-2019, "Someone Left the Cake Out in the Rain: The Dissolution of Cooperative Federalism in the Trump Era," JD Supra, https://www.jdsupra.com/legalnews/someone-left-the-cake-out-in-the-rain-39747/Now we face an even greater planetary threat—climate change—and state action has been one of the few bright spots in an overall grim U.S. policy picture. Thirty years ago, when I represented Louisiana Governor Buddy Roemer on a bipartisan National Governors’ Association (NGA) task force on climate change, we recognized the importance of national and global action. We also saw major roles for states in areas like electric power and transportation, where they hold significant authority over planning, investment, and regulation. Where the federal government has largely dropped the ball on climate law and policy, states and cities from across the U.S. have stepped up to the plate. They sued EPA (successfully) to force regulation of carbon dioxide using Clean Air Act authority in Massachusetts v. EPA, and (unsuccessfully) to hold major polluters responsible for damage to their jurisdictions in Connecticut v. AEP. Meanwhile they moved forward in their own jurisdictions to promote clean energy, cut greenhouse gas emissions, and to respond to the impacts of climate change. State action has been impressive and bipartisan, exemplifying Supreme Court Justice Lewis Brandeis’s description of states as the “laboratories of democracy.” The Regional Greenhouse Initiative, embraced by nine states in the Northeast, many with Republican governors, has successfully cut emissions from power plants and strengthened the clean energy economy. In California, Republican Governor Arnold Schwarzenegger and the legislature created a cap-and-trade program to limit carbon emissions that has been extended and strengthened over time. Most U.S. states have mandated utilities to integrate clean renewable power into their resource mix, and many have taken on increasingly ambitious targets, through robust and enduring policies that have been widely supported. Meanwhile the federal government has utterly failed to do its part. Three decades ago when I first learned about global warming through that NGA task force, I never would have predicted that the lack of a strong national and international response would allow carbon dioxide levels to soar to 410 ppm from the preindustrial level of 280 ppm, bringing rapid and devastating consequences in a generation. Even harder to imagine would be an Administration like the current one taking a wrecking ball to crucial progress at the federal level—in particular, the Clean Power Plan and the national clean car standards. But now it gets even worse. The Trump Administration, not content to undermine U.S. leadership and the Paris Agreement, is hell bent on attacking any state that does not share its climate-denying, pro-fossil fuel agenda. The federal attacks on the California-led greenhouse-gas emissions standards for autos (embraced by 15 states representing nearly half the U.S. economy), and now on California’s cap- and-trade program are assaults on all of us, and make a mockery of the GOP’s espoused fealties to states’ rights and cooperative federalism. The Administration claims that California is unlawfully acting like a national government by working with Quebec on a linked trading system that crosses state and national boundaries. But the program is designed so that each jurisdiction operates independently yet recognizes the others’ allowances through the “Western Climate Initiative” as broader trading systems yield greater opportunities for cost savings. Subnational governments across the U.S. and beyond routinely collaborate and cooperate across areas of policy, trade, and commerce without harassment by our federal government: think of the ubiquitous trade missions by governors and their counterparts from around the world. Consider as well cross-border collaboration on important sectors like transportation – e.g., through joint efforts on electric vehicle charging networks and other infrastructure, including bridges and related tolling arrangements. I can only explain the Administration’s motivation to attack this arrangement that has been around since 2013 as a spiteful desire to quash any successful effort

to address climate change in the “marble cake” of government. This Administration’s actions bring to mind the lyrics to the song, MacArthur Park: “I don’t think that I can take it, ‘cause it took so long to bake it, and I’ll never have that recipe again, oh no!” Oh no, indeed.

Local action on climate change is effective – states are meeting and exceeding targetsBromley-Trujillo and Holman 19 Rebecca Bromley-Trujillo, Assistant Professor American politics, environmental policy, public policy and administration and state politics, M.A. and Ph.D. in political science from Michigan State University, Mirya R Holman, Associate Professor of Political Science at Tulane University, “Climate Change Policymaking in the States: A View at 2020”, Publius: The Journal of Federalism, https://doi.org/10.1093/publius/pjaa008Climate change policymaking has stalled at the federal level in the United States, especially since Donald Trump’s election as president. Concurrently, extreme weather, rising sea levels, and other climatic effects have increased the salience of climate change in the mass public and among elected officials. In response, legislators in state governments increasingly introduce and adopt policies associated with climate change. In this article, we evaluate the state of climate change policymaking in state legislatures, with a focus on overall trends in climate mitigation and adaptation innovation and cases of policy retrenchment. We document an increased level of climate legislation introduced in U.S. states since President Trump’s election, particularly in states under Democratic Party control. We evaluate patterns of introduced legislation across the states between 2011 and 2019 and consider the factors associated with bill sponsorship. Our results demonstrate the increased partisan nature of climate change policymaking in U.S. states. Issue Section: Special Issue Manuscript Climate change policymaking has stalled at the federal level in the United States, particularly during the Trump administration. As a result, conflicts over policy have shifted to subnational governments, accelerating the race to the top and the bottom that already exists in state environmental regulation. While the Obama administration made some concerted efforts to address climate change through the president’s powers as chief executive (see Konisky and Woods 2016; Cook 2018), the Trump administration has largely dismantled these actions (Konisky and Woods 2018). Since President Trump’s inauguration, he shifted the course of national climate change policy in the United States. Among these changes are President Trump’s announced withdrawal from the Paris Climate Agreement, a rescinding and revamping of President Obama’s signature Clean Power Plan, and rolling back planned reductions in fuel economy standards. In addition, the Trump administration has indicated opposition to certain state efforts to address climate change; for example, the federal government is seeking to curtail California’s ability to set stricter automobile emissions standards. While the federal government has often evaded or struggled to adopt meaningful climate change legislation, state and local governments have been quite active in the climate policy sphere (Rabe 2011; Bromley-Trujillo et al. 2016). Since the early 1990s, state and local governments moved to fill some of the climate policy void left by the federal government’s inaction (Rabe 2011; Gilmore and St. Clair 2017; Boussalis, Coan, and Holman 2018, 2019). The 2010s are no exception: U.S. policy activity on climate change has largely taken place via state and local governments. This article provides an overview of state climate policy during the last decade. We begin with a discussion of recent policy trends on climate change in U.S. states. We document increased efforts by some state governments to engage in proactive climate adaptation and mitigation policies, while other state governments have engaged in policy retrenchment, particularly on energy policy. In doing so, we discuss both the overall state of climate policy in the 2010s and how these legislative efforts have changed since the 2016 election. We evaluate when the states craft policy to address increasingly pressing climate demands and the types of policies they are pursuing. What factors are associated with efforts to address climate change by state legislatures in the 2010s? To evaluate this question, we move to an analysis of the agenda-setting stage in state legislatures using bill introductions in the 2011–19 legislative sessions as an indicator of the climate-related issues under consideration. Poisson-count models suggest that political variables are increasingly associated with agenda setting on climate change in state legislatures since Trump’s election. At the same time, key factors like the level of concern about climate change in the population, professionalism, and chamber ideology are all positively associated with climate change activism in state legislatures across the entire time period. Subnational Climate Change Policy Efforts Climate policy activity in the 2010s includes a continuation of earlier policy efforts, new policy innovations, and policy retrenchment or reversals. Several states previously set themselves up as leaders in the climate policy space (Matisoff 2008; Rabe 2008; Bromley-Trujillo et al. 2016) and simply continue that trend in recent years. These continued policies often reflect maintained or increased Democratic majorities in those states as well as a high degree of climate issue salience. State legislatures are also sites for climate policy innovation in the 2010s, as indicated by bill introductions and adoptions. These state efforts include policies aimed at limiting carbon output and promoting carbon capture, the regulation of energy sources within the state and state-owned utilities, and dictates to bureaucratic agencies and local governments to engage in climate adaptation and mitigation efforts. Several states have considered bills that financially incentivize renewable energy development, including the use of public funds or utilities to invest in renewable energy sources. States have also considered ways to adapt to climate change effects, including

coastal protection and fire prevention measures. Although there is a wide variety of policy options that states can pursue, a major focus of recent legislation revolves around greenhouse gas (GHG) reduction targets and monitoring, changes to renewable portfolio standards (RPS), net metering and climate adaptation. We consider each of these policy categories in turn. GHG Reduction Targets A central goal in climate mitigation policy is to reduce GHG emissions that contribute to global climate change. As such, states have set up GHG targets that call for reducing emissions to a specified percentage by a target date. These broad policies incentivize investment in renewable energy and energy efficiency and tend to include policy recommendations for achieving the goal. In the previous decade (2000–10), states adopted GHG reduction targets and emissions inventories, beginning with Maine in 2003. From 2011 to 2019, we see these early adopters increasing their reduction targets as well as new states signing on to emission standards. Most states already active in adopting climate policy by 2010 did not remain stagnant, but instead updated their standards to more aggressive targets. For example, Maryland first adopted a GHG target in 2009 aimed at reducing emissions to 25 percent below 2006 levels by 2020. In 2016, the state extended and increased its target to 40 percent below 2006 levels by 2030. California, long known for its aggressive efforts to mitigate climate change, passed SB100 in 2018 requiring the power grid to be carbon free by 2045. A number of other states created GHG emission targets for the first time during this period, particularly when the Democratic Party gained a majority or increased their majority in state legislatures. Prominent examples of new adopters in this area include Colorado and New York. Colorado enacted GHG emission targets and mandatory emissions reporting in 2019, when the state enacted the “Climate Action Plan to Reduce Pollution.” This legislation requires a statewide emissions reduction below 2005 levels of 90 percent by 2050, with gradual increases required in intermediate years. New York is one of the few states that passed legislation committing the state to achieve net-zero GHG emissions by 2050. To achieve this ambitious goal, the state requires the Department of Environmental Conservation to establish recommendations for achieving this target within two years. The state is also pursuing offshore wind turbines and is making efforts to provide the necessary infrastructure for vast rooftop solar programs.

No race to the bottom — state market incentives encourage pursuit of renewables.Burtraw 17 — Dallas Burtraw, Darius Gaskins Senior Fellow with the nonpartisan think tank Resources for the Future, served on the National Academy of Sciences Board on Environmental Studies and Toxicology and on the U.S. Environmental Protection Agency’s Advisory Council on Clean Air Compliance Analysis, served on California’s Economic and Allocation Advisory Committee advising the governor’s office and the Air Resources Board on implementation of the state’s climate law, earned a PhD in economics from the University of Michigan, an MPP in public policy from the University of Michigan, and a BS in community economic development from University of California at Davis, 2017 (“States Could Take Lead On Environmental Regulation Under Trump,” NPR, January 18th, Available Online at http://www.npr.org/2017/01/18/510472419/states-could-take-lead-on-environmental-regulation-under-trump, Accessed 07-10-2017)ROBERT SIEGEL, HOST: More now on federalism and the environment. States and cities have long taken the lead in pushing for clean energy and climate initiatives, and for a sense of what we might see from the states during a Trump administration, we're joined now by Dallas Burtraw. He's a senior fellow with the nonpartisan think tank Resources for the Future. Welcome to the program. DALLAS BURTRAW: Thank you, Robert. SIEGEL: And perhaps you can help us understand the landscape of state regulations and policies, where they're strongest and where they're weakest. BURTRAW: There are state policies that are strong throughout the nation, but especially in the northeast states, in California and a number of other states, we see leadership on climate and energy policies. There's 10 states nationally that have cap and trade programs in place. A number of other states have climate policy goals already articulated. And they take the shape mostly in the form of clean energy policies with over half the states in the country having funded energy efficiency standards. SIEGEL: But if the federal government were not to have an activist EPA, would you expect the states to continue behaving as they've been behaving? BURTRAW: I would expect to see these states really double down on their commitment to climate and energy policies partly because it's been so important for their economic development and job creation in those states. And even in the states that don't have in place these climate and energy policies that we refer to, we're seeing the breakout of market forces that are leading to the development of clean energy and industry that is very prominent even in so-called red states. SIEGEL: You're saying in many states, there is strong an economic interest in sustainable energy development as in traditional fossil fuels. BURTRAW: Well, that's right. We're seeing that across the solar and renewable industry, for example, there are more than twice as many jobs as there is in the coal electricity generation pathway. SIEGEL: And is it fair to say that those jobs would exist even if the federal government were not subsidizing them in any way? BURTRAW: Well, the federal subsidies have enabled those industries to develop and emerge now, but it's now the case that their costs have fallen that they're really competitive with coal and even natural gas. SIEGEL: Now, California has its own auto emissions standards that are more rigorous than federal standards. Could the federal government say to California, you longer have the authority to do that?

BURTRAW: Well, the way it works is California has a unique situation in that it can develop auto standards that exceed the federal standards. And then other states are given a choice about whether to jump onboard with California or to adhere to the federal standards. And time after time over the last four decades, California has taken the lead and sought a waiver to enact its standards, and the federal standards are then ultimately caught up with California. And that's where we are just now with standards going through 2025. SIEGEL: But what about California's waiver? Is that secure until 2025? BURTRAW: Well, that's an uncertain question - whether Pruitt would go after to try to revoke the waiver for California. But every waiver request previously has always been accepted, and for him to go in and try to revoke a waiver that's already been granted - a lot of chicken feathers would hit the fan if that were to happen. SIEGEL: From the sound of it, from the way you see it, it sounds like no matter what federal policy is at EPA, it's unlikely to have much effect on the environment. Is that being too rosy? BURTRAW: That is being a little bit too rosy. What I would say - it's as though the federal government is taking its foot off the accelerator, and now we're going to be coasting. Many of the states that are providing leadership and developing policies will continue to do their part of the work, and I think the state-level policies will propagate to other states. But the problems cannot ultimately be solved without some sort of federal involvement. The states can go so far, but they cannot really leverage the kind of actions that's necessary, especially on climate, at the international level. That requires a role for the federal government to coordinate and compel international partners to do their part.

Localism is key to climate actionCharles 2021 (Dan, NPR's food and agriculture correspondent. degree in economics and international affairs,” The White House Wants To Fight Climate Change And Help People. Cleveland Led The Way”, June 21 2021, https://www.npr.org/2021/06/21/1003227623/cleveland-wants-climate-justice-can-the-biden-administration-help // JK )The fight against climate change may be taking a striking new turn under the Biden administration. The White House is calling climate action a form of environmental justice, part of a campaign to address economic and racial inequity. It's bringing new attention and, potentially, a flood of cash to low-tech approaches to climate action that directly benefit low-income neighborhoods. They include aid for home renovations and upgrades to city transportation infrastructure, including buses. "The environmental justice community, and many of our Black and brown communities, have identified the connection between climate change and their own community infrastructure. They can't be disconnected," says Cecilia Martinez, senior

director for environmental justice at the White House Council on Environmental Quality. Yet this shift in focus has its roots far from Washington, says Matt Gray, formerly chief of sustainability in Cleveland. "What we're seeing now at a national level has bubbled up from the cities for a good six, seven years, " says Gray, now senior vice president of programs at the Student Conservation Association, which runs environmental volunteer programs. "A lot of cities have come to realize that climate action and climate justice are one and the same." Among those cities is Cleveland. A few years ago, it explicitly linked climate policy and social equity. The story of how it developed this new approach helps explain what "climate justice" means in practice. Gray says he thinks that it offers lessons to other cities — and to the Biden administration. For Cleveland, the White House's infrastructure proposals offer the biggest opportunity in years to advance its goals for both equity and climate change. "It's a sea change," says Mike Foley, director of sustainability for Cuyahoga County, which includes Cleveland. "There's actually resources now to do some of this stuff, which is a real game changer." Climate change in the "green city on a blue lake" Cleveland is tied with Detroit for the highest level of poverty among America's large cities. Its population has been declining for a half-century. Amid these challenges, it adopted a "climate action plan" with ambitious targets for cutting greenhouse gas emissions. The "green city on a blue lake," as the city's boosters like to describe it, recently set a goal of relying

completely on renewable energy by 2050. Cleveland adopted its first climate plan in 2013, and Gray says it was similar to those of most other cities at the time. These "version 1" plans were a kind of accounting exercise, calculating each city's greenhouse emissions and laying out technical paths toward reducing them. But in 2018, city officials scrapped the old plan and launched an effort to come up with a new one, this time with a focus on social and racial equity. It was, in part, a response to critics such as Kimberly Foreman, executive director of Environmental Health Watch. Foreman says that the discussions of climate policy have long been disconnected from low-income neighborhoods and communities of color. "It was a little elitist, right?" she says. "Or heavily focused on technology. Which is not getting down to the grassroots, or getting down to the people who are most impacted." For climate-focused officials such as Gray, there was another, more practical reason for the plan's revision. "It was hard to get climate to the top of the agenda because of all these other major challenges, which do deserve a lot of attention," he says. City officials began their climate policy reboot with a series of community meetings. According to Bianca Butts, then with the

nonprofit group Cleveland Neighborhood Progress, the meetings opened with questions seemingly unrelated to climate: "What are you concerned about in your neighborhood? Right here in West Park? Right here in Hough?" It was Butts' job to connect those neighborhood concerns to climate-relevant action. "Before we started these conversations, I was absolutely fearful that our message wasn't going to land," she recalls. Cindy Mumford, in the Hough neighborhood, liked it. "The way that they presented it, I thought, was brilliant," she says, "that we had a voice into climate control, bettering our community as a whole." Hough, like many neighborhoods in Cleveland, could use some help. A century ago, its streets were lined with four- or five-story brick apartment buildings and stately Victorians. Today, many of those buildings have disappeared, replaced by empty lots covered with grass. Many that remain are in disrepair. "It is a neighborhood that was devastated by what I can only call tenement housing," Mumford's neighbor Deborah Lewis says as the two women lead a walking tour of Hough in the rain. One destructive force was redlining, when lenders refused to finance home purchases in neighborhoods where Black people lived. A map of Cleveland that the federally backed Home Owners' Loan Corp. released in 1940, purporting to show mortgage lending risk, showed Hough in red, labeled a high-risk area. The accompanying description explains that Black people were moving into

the area.In the following decades, property owners stopped investing in Hough. Some stopped maintaining their buildings. "Left the buildings abandoned," Mumford says, walking down 73rd Street past newer homes that have replaced some of those apartments. "For years! For years, we were plagued by these eyesores." The disinvestment and decay happened in many parts of Cleveland. The city's population has fallen by more than half over the past 70 years, from 900,000 to just under 400,000.

Mumford attended the city's climate workshop looking for ways to revitalize her neighborhood, and she got excited about the potential of "community solar." Such projects allow people to buy a share in a larger solar project. Mumford and Lewis now are working with several organizations in Cleveland, gathering support and financing to get it off the ground. Dozens of their neighbors have signed up to participate. They see the project delivering clean energy, jobs during the construction phase, and ownership of a valuable asset. "It increases the interest in the neighborhood. And it increases the interest of people being in the neighborhood," Lewis says. At other neighborhood climate meetings, people talked about widespread health problems such as asthma and the challenges of big utility bills, about the need for more trees, green spaces and a better bus system. SeMia Bray, co-facilitator of a recently founded group in Cleveland called Black Environmental Leaders, attended

some meetings to make sure that it wasn't just experts talking to one another, with residents watching from the sidelines. "I was relieved," she

says. "I was encouraged that people did not feel hopeless. They came to the table, unfiltered, and said what they believed to be the needs within their community." Three things rose to the top of Cleveland's climate action priorities: housing, transit and trees. Nationwide, homes are responsible for about a fifth of the country's greenhouse emissions, because of fossil fuels burned to power home heating, cooling and cooking. Energy bills are a greater burden in Cleveland's poorest neighborhoods, in part because many homes lack energy-saving insulation or modern, efficient appliances. Renovating those homes can solve many problems at once: removing lead and fixing other health hazards while cutting fossil fuel use. "I feel like that's our lowest hanging fruit and also the way to have the largest impact in disinvested communities, communities that are struggling," says Tony Reames, director of the Urban Energy Justice Lab at the University of Michigan. Better public transportation, including more frequent bus service, shared bikes and neighborhood planning that makes places more walkable, can level life's playing field for people who lack cars or can't drive. "Transit is the crux of opportunity," Reames says. It offers access to jobs, health care and recreation. A dense and well-maintained tree canopy, meanwhile, can help provide cooling shade as well as cleaner air. That's increasingly helpful in a warmer climate, with more frequent heat waves, and it offers lifesaving benefits in low-income neighborhoods where many homes lack air conditioning.

Water federalism is directly connected to environmental federalism.Craig 13 — Robin Craig, Professor of Water, Energy, and Climate Change at the University of Southern California School of Law, PhD in Science from the University of California, Santa Barbara, J.D. from the Lewis & Clark School of Law, 2013 (“Adapting Water Federalism to Climate Change Impacts: Energy Policy, Food Security, and the Allocation of Water Resources,” Environment & Energy Law & Policy Journal, Volume 5, June 8th, Available Online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555944&download=yes, Accessed on 07-12-2021, Jackson Hightower)Climate change regulation has proven a fertile ground for debates on federalism . To date, however, these debates have concentrated on climate change mitigation and the “proper” roles of the states and the federal government in regulating to reduce greenhouse gas emissions.This Article posits that climate change adaptation also has federalism implications for environmental regulation and natural resources management. In particular, the federal and state governments have always asserted overlapping—and sometimes conflicting—interests in water, and, as a result, water regulation and management have always been subject to an uneasy federalism balancing . For example, water allocation and water rights are generally considered issues of state law—but if the water crosses state lines, or state regulation affects navigation, the federal government asserts a superior and preemptive role. In between these endpoints, the federal Clean Water Act adopted an intricately structured cooperative federalism that imposes certain minimum federal requirements for water quality but allows states to choose water quality goals, while aquatic species protection remains a largely unstructured mishmash of overlapping state and federal interests and authorities.In light of existing shortages of water and the imminent need to adapt to climate change impacts on water resources, reconsidering the proper federalism balance in water resources management is inevitable, as several congressional bills attest. Specifically, the traditional assumption of state superiority over matters of water allocation has come into question in light of the intimate connections between water availability and national energy policy , national food security , and interstate conflicts . This Article explores the potential for climate change and the increasing need to adapt to its impacts on water to alter traditional notions of water federalism, concluding that an increased federal role in water management is likely but could take many forms, some more attuned to the multiple interests in water than others.INTRODUCTIONAs a republic, the United States depends on the mutual workings of several layers of government—federal, state, local, and, in some circumstances, regional. “Federalism” describes the interactions of two of these layers: the federal government and the states.1 However, “federalism” does not describe a univalent relationship. Instead, the states can and do interact with the federal government in a variety of ways.2Nowhere is this fact more clear than in the management and regulation of water resources . This Article refers to the various relationships between the federal government and the states as water federalism, and water federalism is multifaceted and complex. Even without the complication of climate change, the regulation and management of water implicates the full spectrum of inter-governmental interactions, from fairly comprehensive assertions of federal supremacy (navigation), to fairly strong preservations of states’ rights (water allocation), to complex but unstructured workings of overlapping jurisdiction and dynamic federalism (species preservation and regulation), to a no less complex but far more structured cooperative federalism (water quality).3The interactions among these various regulatory foci are already the sources of numerous conflicts with respect to the overall management of water resources,4 but no one has (yet) seriously proposed a comprehensive shift of water management authority to one level of government or the other. Climate change, however, may well prompt a reconsideration of the “proper” federalism balancing surrounding the regulation and management of water, particularly with regard to freshwater allocation, management, and transportation.Indeed, climate change has proven a fertile ground for debates on federalism and the proper roles of the state and federal governments.5 To date, however, these debates have concentrated on the problem of climate change mitigation

—how to regulate, and who should regulate, relevant sources to reduce emissions and atmospheric concentrations of greenhouse gases.6

Water federalization deters climate initiatives.Craig 13 — Robin Craig, Professor of Water, Energy, and Climate Change at the University of Southern California School of Law, PhD in Science from the University of California, Santa Barbara, J.D. from the Lewis & Clark School of Law, 2013 (“Adapting Water Federalism to Climate Change Impacts: Energy Policy, Food Security, and the Allocation of Water Resources,” Environment & Energy Law & Policy Journal, Volume 5, June 8th, Available Online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555944&download=yes, Accessed on 07-12-2021, Jackson Hightower)Scholars have devoted much time and energy to the task of describing a first-best model of federalism in the United States. However, the multiplicity of issues and perspectives involved in water management make clear that the “proper” model of federalism is itself fluid and context-specific , contributing to the polyphonic complexity that is the state of the law governing water.In light of that complexity and the uncertainties that climate change is likely to bring to water management, this Article has sought not to prescribe the “proper” water federalism for the climate change adaptation era. Rather, it has engaged in an attempt to “read the tea leaves” regarding the direction water federalism appears to be trending and to suggest particular means through which the impetus for an increased federal role in water resource management and water allocation might manifest itself.That said, however, the prospect of whole scale nationalization and federalization of water resources should give pause. Water serves local ecological and economic needs that could easily be sacrificed to national interests, particularly if Congress pursues a few specific national priorities—national energy security, national food security—with tunnel vision.304 Moreover, at the extreme, large-scale water transportation on a national scale will be incredibly expensive, creating a cost-benefit issue that suggests that more efficient means of addressing national water priorities, such as national investment in upgraded water infrastructure and water conservation, probably exist and should be looked for.The overriding danger that climate change poses for water law and policy is that governments at all levels will avoid making the hard decisions that climate change demands until they are regulating in a panicked and reactive emergency mode, eliminating the opportunity to make those decisions in a proactive and reasoned disaster-avoidance planning mode. The former, panicked, mode is far more likely to result in last-minute nationalization and federalization of water to ensure the viability of a few priorities. The latter emergency planning mode, in contrast, would allow for longer-term identification and balancing of multiple priorities at multiple scales. Thus, where exactly the balance of authority in water management and allocation actually ends up in the climate change era will, I suspect, depend far more on how soon all levels of government choose to start planning for climate change’s impacts on water resources than any theoretical notions of “proper” governmental roles—and we are all more likely to end up with a more optimal balance of water federalism if they all start sooner rather than later.

Impact – Warming Terminal Extinction and outweighs everythingTorres 16 – affiliate scholar @ Institute for Ethics and Emerging Technologies (Phil, PhD candidate @ Rice University in tropical conservation biology, Op-ed: Climate Change Is the Most Urgent Existential Risk, http://ieet.org/index.php/IEET/more/Torres20160807) Humanity faces a number of formidable challenges this century. Threats to our collective survival stem from asteroids and comets, supervolcanoes, global pandemics, climate change, biodiversity loss, nuclear weapons, biotechnology, synthetic biology, nanotechnology, and artificial superintelligence. With such threats in mind, an informal survey conducted by the Future of Humanity Institute placed the probability of human extinction this century at 19%. To put this in perspective, it means that the average American is more than a thousand times more likely to die in a human extinction event than a plane crash.* So, given limited resources, which risks should we prioritize? Many intellectual leaders, including Elon Musk, Stephen Hawking, and Bill Gates, have suggested that artificial superintelligence constitutes one of the most significant risks to humanity. And this may be correct in the long-term. But I would argue that two other risks, namely climate change and biodiveristy loss, should take priority right now over every other known threat. Why? Because these ongoing catastrophes in slow-motion will frame our existential predicament on Earth not just for the rest of this century, but for literally thousands of years to come. As such, they have the capacity to raise or lower the probability of other risks scenarios unfolding. Multiplying Threats Ask yourself the following: are wars more or less likely in a world marked by extreme weather events, megadroughts, food supply disruptions, and sea-level rise? Are terrorist attacks more or less likely in a world beset by the collapse of global ecosystems, agricultural failures, economic uncertainty, and political instability? Both government officials and scientists agree that the answer is “more likely.” For example, the current Director of the CIA, John Brennan, recently identified “the impact of climate change” as one of the “deeper causes of this rising instability” in countries like Syria, Iraq, Yemen, Libya, and Ukraine. Similarly, the former Secretary of Defense, Chuck Hagel, has described climate change as a “threat multiplier” with “the potential to exacerbate many of the challenges we are dealing with today — from infectious disease to terrorism.” The Department of Defense has also affirmed a connection. In a 2015 report, it states, “Global climate change will aggravate problems such as poverty, social tensions, environmental degradation, ineffectual leadership and weak political institutions that threaten stability in a number of countries.” Scientific studies have further shown a connection between the environmental crisis and violent conflicts. For example, a 2015 paper in the Proceedings of the National Academy of Sciences argues that climate change was a causal factor behind the record-breaking 2007-2010 drought in Syria. This drought led to a mass migration of farmers into urban centers, which fueled the 2011 Syrian civil war. Some observers, including myself, have suggested that this struggle could be the beginning of World War III, given the complex tangle of international involvement and overlapping interests. The study’s conclusion is also significant because the Syrian civil war was the Petri dish in which the Islamic State consolidated its forces, later emerging as the largest and most powerful terrorist organization in human history. A Perfect Storm The point is that climate change and biodiversity loss could very easily push societies to the brink of collapse. This will exacerbate existing geopolitical tensions and introduce entirely new power struggles between state and nonstate actors. At the same time, advanced technologies will very likely become increasingly powerful and accessible. As I’ve written elsewhere, the malicious agents of the future will have bulldozers rather than shovels to dig mass graves for their enemies. The result is a perfect storm of more conflicts in the world along with unprecedentedly dangerous weapons. If the conversation were to end here, we’d have ample reason for placing climate change and biodiversity loss at the top of our priority lists. But there are other reasons they ought to be considered urgent threats. I would argue that they could make humanity more vulnerable to a catastrophe involving superintelligence and even asteroids. The basic reasoning is the same for both cases. Consider superintelligence first. Programming a superintelligence whose values align with ours is a formidable task even in stable circumstances. As Nick Bostrom argues in his 2014 book, we should recognize the “default outcome” of superintelligence to be “doom.” Now imagine trying to solve these problems amidst a rising tide of interstate wars, civil unrest, terrorist attacks, and other tragedies? The societal stress caused by climate change and biodiversity loss will almost certainly compromise important conditions for creating friendly AI, such as sufficient funding, academic programs to train new scientists, conferences on AI, peer-reviewed journal publications, and communication/collaboration between experts of different fields, such as computer science and ethics. It could even make an “AI arms race” more likely, thereby raising the probability of a malevolent superintelligence being created either on purpose or by mistake. Similarly, imagine that astronomers discover a behemoth asteroid barreling toward Earth. Will designing, building, and launching a spacecraft to divert the assassin past our planet be easier or more difficult in a world preoccupied with other survival issues? In a relatively peaceful world, one could imagine an asteroid actually bringing humanity together by directing our attention toward a common threat. But if the “conflict multipliers” of climate change and biodiversity loss have already catapulted

civilization into chaos and turmoil, I strongly suspect that humanity will become more, rather than less, susceptible to dangers of this sort. Context Risks We can describe the dual threats of climate change and biodiversity loss as “context risks.” Neither is likely to directly cause the extinction of our species. But both will define the context in which civilization confronts all the other threats before us. In this way, they could indirectly contribute to the overall danger of annihilation — and this worrisome effect could be significant. For example, according to the Intergovernmental Panel on Climate Change, the effects of climate change will be “severe,” “pervasive,” and “irreversible.” Or, as a 2016 study published in Nature and authored by over twenty scientists puts it, the consequences of climate change “will extend longer than the entire history of human civilization thus far.” Furthermore, a recent article in Science Advances confirms that humanity has already escorted the biosphere into the sixth mass extinction event in life’s 3.8 billion year history on Earth. Yet another study suggests that we could be approaching a sudden, irreversible, catastrophic collapse of the global ecosystem. If this were to occur, it could result in “widespread social unrest, economic instability and loss of human life.” Given the potential for environmental degradation to elevate the likelihood of nuclear wars, nuclear terrorism, engineered pandemics, a superintelligence takeover, and perhaps even an impact winter, it ought to take precedence over all other risk concerns — at least in the near-term. Let’s make sure we get our priorities straight.

Turns Case – Fed Management Fails The federal government has a history of environmental harm issues in Lake Erie arose from federal action Adler 2005 (Jonathan H, inaugural Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, where he teaches courses in environmental, administrative and constitutional law, “Judicial Federalism and the Future of Federal Environmental Regulation”, Faculty Publications, https://scholarlycommons.law.case.edu/faculty_publications/175 // JK ) Most discussions of the environmental impact of the Supreme Court's federalism jurisprudence focus on the extent to which judicially enforced constraints on federal regulatory power will limit the federal government's ability to address environmental concerns. This is a valid concern. At the same time, it must be remembered that expansive federal authority is not inherently protective of the environment . Rather it is a double-edged sword. Just as broad federal authority can be used to protect environmental concerns, a powerful federal government has the ability to cause substantial amounts of environmental harm. The nation's history is littered with examples of environmental degradation directed, funded, or otherwise encouraged by the federal government. Many of our country's present environmental struggles are the legacy, at least in part, of ill-conceived (albeit sometimes well-intentioned) federal programs. Environmental harm brought about by federal environmental programs span the

spectrum from pollution at federal facilities and the mismanagement of federal lands to ecologically destructive public works projects and wasteful subsidies to farmers and businesses.528 Subsidies to farmers have encouraged the draining of wetlands and waste of water resources;529 subsidies to ranchers have depleted populations of wild species;530 subsidies to corporations lower the costs of polluting fuel sources and subsidies to fishermen contribute to overfishing. The federal government's environmental record on federally owned properties is equally poor. The federal government chronically underfunds national park maintenance and restoration, while spending more money on land acquisition. 533 The result is substantial pollution and ecological degradation. The sewer system in Yellowstone National Park, for example, is "3-! so degraded that it pollutes local trout streams and groundwater." The federal government loses money on timber sales in the national forests, and chronic mismanagement has led to ecosystem decline and a literally explosive threat of catastrophic wildfire. 535 The approximately 50,000 sites contaminated by the federal government will cost an estimated $235-389 billion to clean up, according to the General Accounting Office.536 The U.S. Department of Energy alone is responsible for environmental contamination at over 100 sites in thirty states, covering approximately two million acres. 537 Solid Waste AgenC)' undoubtedly restricted the federal government's ability to regulate activities that harm isolated wetlands. Ironically, the federal government maintained an active policy of draining or otherwise destroying wetlands for well over a century. 538 The Swamp Land Act of 1849, for example, provided for the transfer of government-owned "swamp" into private hands on the condition that they were drained. 539 In 1900, the Supreme Court characterized wetlands as "the cause of malarial and malignant fevers" and declared that "[t]he police power is never more legitimately exercised than in removing such nuisances."5 .J 0 At the time, tl1e country "was draining everything in sight to make communities healthful."541 Other government policies, ranging from subsidized irrigation projects and farm subsidies to flood control projects and subsidized disaster insurance, further contributed to wetland loss. 542 For example, it is estimated that as much as thirty percent of tl1e forested wetland loss in the lower Mississippi Valley was due to incentives created by federal flood-control projects.543 Flood control projects and otl1er policies continued to

encourage wetland loss well into tl1e 1970s. 544 In addition to subsidizing the filling of wetlands and building ecologically disruptive water projects, the Army Corps of Engineers helped despoil the waters it was entrusted to protect. For instance, the Corps contributed substantially to the pollution that rendered Lake Erie a "dead" water body , regularly depositing contaminated dredge from the bottom of the Cuyahoga River into the lake. 545 This activity continued through the 1960s, even after Congress adopted legislation to force the Corps to clean up its act. To the Corps, defiling Lake Erie in this fashion was cost justified . 546 Today the Corps has a lead role in helping to restore the Florida Everglades, yet it was the Corps's water projects in southern Florida that helped disrupt the Everglades ecosystem in the first place. 547 Given its record of environmental harm, it is ironic that the Corps of Engineers, of all federal agencies, now has such a prominent role in environmental protection. 548 Most of the environmental harm to be laid at the federal government's feet is the result of various spending programs, yet it is the federal government's 1·egulat01y authority that is most threatened by the Court's federalism jurisprudence, particularly in the Commerce Clause context. Therefore, it is possible that limits on the scope of federal authority will affect the federal government's ability to do environmental good far more than it will curtail the federal government's

penchant for encouraging environmental harm. Yet it would be a mistake to assume that federal regulations, including federal envimnmental regulations, are not themselves responsible for some degree of environmental harm. Examples of federal regulations that have the potential to cause negative environmental effects are more common than one might expect. Technology-based emissions standards, such as those embodied in the CAA and CWA, "play a key role in discouraging innovation" that can lead to environmental improvements. 549 The federal Superfund program has discouraged the rapid and cost-effective cleanup of many unused or abandoned hazardous waste sites.550 The complexity and rigidity of federal hazardous waste regulations can discourage hazardous waste recycling, even though such recyclingjs officially considered environmentally preferable to the alternatives of incineration or land disposal.551 The claim here is not that environmental regulations necessarily do more good than harm, but that at least some environmental regulations have negative environmental consequences and that in at least some instances environmental regulations are the source of net environmental harm. 55

Turns Case – Cyber Uncooperative federalism ensures cybersecurity innovation and is preferable to protect critical infrastructure – key to addressing cyberattacksCohen & Nussbaum 18 (Natasha, fellow in New America’s Cybersecurity Initiative, where she focused on State, Local, Tribal, and Territorial (SLTT) cybersecurity policy issues. Brian, fellow in New America’s Cybersecurity Initiative, assistant professor of homeland security and cybersecurity in the College of Emergency Preparedness, Homeland Security and Cybersecurity at the University at Albany. 5-31-18 “Cybersecurity for the States: Lessons from Across America” https://www.newamerica.org/cybersecurity-initiative/reports/cybersecurity-states-lessons-across-america/ JO)This report focuses on state-level cybersecurity because of its critical place in the cybersecurity ecosystem within the United States, particularly in three key areas: responding to cyber incidents, protecting critical infrastructure, and supporting the development of a cyber workforce. Today’s cyber threat environment features a proliferation of cybercrime and attacks from nation-state, nonstate, and nation-state-sponsored actors on both public and private sector systems, along with global “contagions” that can affect large swaths of digital infrastructure simultaneously.1 To address these challenges to America’s security, we need to have a national cybersecurity program that is effective at all levels: national, state, local, and across various private sector industries. The federal nature of our government, and the resultant division in its structure and authorities, demand that state governments take an active and proactive role in responding to threats to their citizens and the organizations located in their jurisdiction. States maintain citizen databases and provide a range of services to their residents. Protecting the integrity and confidentiality of that data and ensuring the availability of those critical services is essential to

offering efficient and effective government to the citizenry. Furthermore, state agencies are on the front lines of communication and response whenever there is an incident. While historically this role has sometimes expanded to federal agencies for cybersecurity, with the

prevalence of threats and their widespread impact, this primary role shifts back towards state action in most cases. States also play a role that the federal government typically does not, (except in unique circumstances or when state resources are exhausted) which is supporting localities and municipalities as they deal with crises and manage the consequences of such events. In this sense, even when states are not on the front lines of cyber incidents, they often are expected to support other jurisdictions; all this despite the fact that many states are in nascent or flux states in terms of their own cybersecurity. Mapping and defending critical infrastructure is highly connected to state governance , due to the close relationship between regulatory agencies and their geographic

sectors, as well as areas of responsibility that are under the direction of state officials, such as election security. Sectors or industries that are often regulated at the state level—like electricity, water and wastewater, and telecommunications—are areas in which states have serious cyber equities , because they are expected to manage the consequences of failures or incidents. In a similar

vein, educational institutions and curricula are also shaped or controlled at the state and local level. To address the shortage of a trained cybersecurity workforce in the United States, curricula needs to be laser-focused on information technology and cybersecurity. That change will only happen with

concerted SLTT action. From elementary STEM education, to community colleges and vocational training, to universities and research institutions, to workforce development and retraining initiatives—these are programs and challenges that a re overwhelmingly built and run by states and localities. States also have the advantage of local relationships informing the provision of services effectively targeted and marketed toward their citizens. Public-private partnerships can flourish in these environments . For example, cyber ranges in Michigan and Arizona are run through partnerships between universities, the private sector, and the public sector. In Indiana, the state runs CritEx, an annual exercise exploring the ramifications and consequences of a cyber incident that affects one sector or one critical infrastructure organization.2 Missouri’s Office of Cybersecurity runs a program to identify “vulnerable internet-connected systems belonging to organizations from various industries. The program identifies high-risk systems that, if left insecure, could lead to disruptions within critical infrastructure or significant data loss, and contacts the owners of the impacted systems to mitigate risks.”3 Programs like this that embrace and rely on constellations of local and regional partners are not likely to result from one-size-fits-all federal programs, but from the efforts of the states—what justice Louis Brandeis termed “the laboratory of democracy.”4 The answers to technical questions about how to secure networks are largely public knowledge; the challenges we face in cybersecurity often result from questions of process and people. The difficulty, as described by policy advisors from the National Governors Association in their 2017 report Beyond the Network: A Holistic Perspective on State Cybersecurity Governance,5 lies in organizational structure and governance. Our own report focuses on three case studies in which states have shown success in addressing these challenges, and from which we can form conclusions that can be beneficially applied across various state structures. While the breadth, scope, and scale of state cyber efforts varies widely, several states have effective, mature cybersecurity programs. The most commented on include programs in California, Michigan, New Jersey, New York, Texas, Virginia, and the state of Washington, to name a few. For the purpose of demonstrating different stylistic and fundamental approaches toward achieving a common goal, this report will examine state cybersecurity programs with substantive success in specific key areas. No state has all the answers yet, but this report highlights three that have made particular progress: (1) Arizona, (2) New Jersey, and (3) Washington. Each of these states has demonstrated certain capabilities or approaches that have the potential to inform other states’ efforts. The lessons learned from this study form a guide for state and local policymakers, strengthening their ability to ensure that their own cybersecurity program is as comprehensive and effective as possible. It is important to note that the approaches of these states are not mutually exclusive. In fact, elements of each model have already been adopted by the other states highlighted in this report, and their programs are the better for it. Every state faces a unique set of challenges,

draws on its own comparative advantages, and has its own political, organizational, or legacy IT environments that shape their cyber efforts. So while no model will be ideal in all contexts, individual successful programs and approaches can collectively constitute a menu of options from which states can pick and choose those methods and techniques that fit their needs.

Turns Case – Democracy Federalism is strong, but state-led solutions to issues are key to prevent democratic slippage. Benjamin and Minkoff 21 — Gerald Benjamin, Professor Emeritus at the State University of New York, founding director of the Benjamin Center for Public Policy Initiatives, former director of the Center for New York State and Local Government Studies, and Scott Minkoff, Associate Professor of Political Science at the State University of New York, 2021 (“Why We Need to Strengthen Federalism from the Bottom Up,” Governing, January 19th, Available Online at https://www.governing.com/now/why-we-need-to-strengthen-federalism-from-the-bottom-up.html, Accessed on 07-14-2021, Jackson Hightower)Before you join those who are loudly condemning our American federal system as undemocratic, consider what the last few months would have looked like if the president appointed governors, or a national agency under the auspices of the president was responsible for running American elections, or if states did not control their own budgets.The regional autonomy assured by the federal system is among the key reasons that the country has thus far been able to weather an extraordinary national governance crisis — a crisis that was decades in the making but accelerated by Donald Trump's assault on liberal democracy and the predations of the COVID-19 pandemic. The ability of state leaders to challenge the practices and policies of the Trump administration and proceed with a degree of autonomy showed again and again that distributed power remains critical for maintaining American democracy. But all is not well in the states. Many, often the most populous, lack the capacity to properly address challenges across a range of policy areas, including infrastructure, education and public health. Needed aid has not been forthcoming from the federal government, whose politics are dominated by less-populous states. Simultaneously, state politics have become deeply polarized and nationalized, too often with leaders prioritizing partisan affiliations and ties to national political actors over the actual needs of their states' residents.In a recent Governing column, Donald F. Kettl made some important suggestions for how the Biden administration can effectively work with states and local governments to improve the functioning of federalism. These suggestions are top-down; they are about what Washington can and should do. A more healthy federalism for America will also require bottom-up reform , with two objectives: improving policy outcomes for states and reinforcing the capacity of states and local governments to serve as a bulwark against future attacks on American democracy.Bottom-up improvements must start with state and local governments doubling down on democratic reform. Election laws and systems must be upgraded to further ease and expand participation, provide for timely vote counting, and allow for secure voting under a variety of crisis conditions. There must be fair redistricting systems both to more fully realize democracy and to build the public's confidence in their representatives. Alternative voting systems, especially ones that might moderate polarization such as ranked-choice/instant-runoff voting, also ought to be considered.Second, states and localities should find ways to build more nonpartisan structures into governing institutions. Especially in states where a single party controls government and is likely to continue to do so, minority party adherents must not become disaffected from their government. Regulatory processes, performance oversight, fiscal management, state constitutional reform (with renewed attention to local home rule to further empower local majorities) and fair redistricting (again) are key potential targets for inclusive reform.Third, state and local governments should be more careful about protecting their resource bases and take a hard look at the fairness of the demographic and geographic distribution of their spending. Too often, competition for economic development within metropolitan regions and states results in diminished tax bases while yielding little or no net benefit in jobs or economic activity. Likewise, many states suffer from inequities in their distribution of tax revenues and other resources to their own urban and rural areas — inequities that are similar to those between and among states arising as a result of skewed national representation.Fourth, states should seek to form regional compacts on national policy issues that are core to their economic futures . Shared defining geographic features — the Great Lakes, the Rocky Mountains — provide potential organizing principles. The Northeast-Midwest Institute provides one model for structuring regional collaboration in policy development. The Regional Greenhouse Gas Initiative, a nine-state carbon-emissions cap-and-trade program in the east, provides another.By working together in this way, states that are less well-represented as a consequence of the national government's federal design can develop greater clout toward achieving shared policy goals . Transportation networks and pandemic preparedness both stand to be improved through this kind of cooperation. And it may even help states in some parts of the country form bipartisan alliances that mitigate the hyperpolarized national political climate.

Finally, states must reinforce and refocus civic education. One hard lesson of recent events is that our intricate, complex political system's design is neither understood nor valued by too many Americans. This complexity, informed by not one but several core values, is crucial for the protection of liberty and continuance of democracy. In particular, the critical role that legislative bodies at all levels of government play in allowing diverse voices to be heard and compromise to be achieved has been consistently undermined, possibly to the point where some members of these bodies themselves have come to doubt their importance.A key aspect of public education must be to offer civic education that builds participatory skills and entrenches in the citizenry an appreciation of how our system of governmental institutions operates. An important reform agenda toward these ends is offered in a just-released report prepared by an American Academy of Arts and Sciences commission: Our Common Purpose: Reinventing American Democracy for the 21st Century.Federalism's record over the course of American history is decidedly mixed. State governments have unquestionably been instruments of repression and exclusion. But states and their localities have also been the places where institutional changes to further democracy have been tested and embraced. Federalism's dispersal of power among multiple sovereigns, each with a direct relationship to the people, has provided a sturdy popular base for resisting excessive concentration of power in Washington and for modeling democratic values when they are not present or politically viable everywhere. We must reform the federal system not only from the top down but from the bottom up to assure its continued ability to perform this vital function.

Unco Federalism is best for democracy – states are more accountable and equitable than the FGSchapiro 20 (Robert, internationally recognized scholar of federalism. A graduate of Yale Law School. 11-3-2020 “States of Inequality” California Law Review https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3724405 pp. 1551-1553 JO)The second value emphasizes the importance of political participation.69Even aside from the efficiency of registering preferences, citizen participation in decision-making stands as an independent good. Citizens should feel in control of their collective lives. Voting is part of political participation, but only a part. From this perspective, citizens should have an opportunity for active engagement outside of the voting booth. They can learn about important issues and promote their views through lobbying, activism, and other forms of civic engagement. Such active political participation may occur more readily at the local level. Citizens can more easily become experts in local issues and enjoy greater access to local officials. One strain of political theory, building on the civic republican tradition, emphasizes the importance of deliberation.70On this view, citizens must have opportunities for meaningful discussion of public policy. Mere voting, as opposed to engaged dialogue and deliberation, does not allow citizens to enjoy the full benefits of self-governance and denies to society the insights that arise from real deliberative democracy. Such true participation in self-governance may remain difficult to realize at the national level. Geographic distance and jurisdictional scale may pose substantial barriers to full participation.

Federalism, with its potential for meaningful local control, can create greater opportunities for citizen involvement in issues of importance.71Through decentralization of decision-making, federalism may advance the goal of civic engagement. The values of republicanism may flourish more easily in a smaller republic.72Budgetary control constitutes a central aspect of self-government. For citizens to exercise meaningful political authority, they must participate in decisions about taxing and spending. Fiscal federalism thus figures importantly in promoting the value of self-governance. To the extent that more local levels of government make budgetary decisions, citizens may enjoy greater involvement. Similarly, citizen participation in dialogue and deliberation about budgetary priorities may more readily occur at the local level. Decentralized decision-making may enhance both citizen control and citizen perception of empowerment.73That sense of control may be especially significant with regard to budgetary matters, as citizens decide how much to tax themselves to fund public expenditures. Citizens may more willingly impose taxes on themselves if they feel greater control over the choices of tax policy and spending priorities. Local control of taxing and spending may facilitate citizen appreciation of the connection between the two. The importance of this local control and investment may be especially significant with respect to particular issues. For example, both in the United States and among other Organisation for Economic Co-operation and Development(OECD)countries, education spending tends to be relatively decentralized.74Parents value control over their children’s education, and that control may translate into a willingness to pay higher educational taxes, which the parents view as an investment in their children. It may also be the case that citizens want to invest more in social services for their neighbors than for unknown individuals in farther reaches of the country.75In this way, local control may increase the overall tax burden that citizens are willing to assume. Local control may raise the level of taxes—and concomitant services—preferred by the citizens. Thus, local control may allow citizens to increase their satisfaction by paying higher taxes and funding additional services. Decentralized budgeting, however, may limit citizens’ actual and perceived political power. Various policies may simply lie beyond the budgetary capability of some state and local governments. Engagement in politics may more easily occur at the state or local level, but without the necessary resources, meaningful deliberation may be impossible. At the very least, the fiscal disparity among states means that the domain for effective political participation may be more limited in some states than in others.

AFF Answers

2AC – AT: Link – Jurisdiction Large waterways, navigation, and commerce are federal jurisdiction and don’t trigger federalism concerns.Craig 13 — Robin Craig, Professor of Water, Energy, and Climate Change at the University of Southern California School of Law, PhD in Science from the University of California, Santa Barbara, J.D. from the Lewis & Clark School of Law, 2013 (“Adapting Water Federalism to Climate Change Impacts: Energy Policy, Food Security, and the Allocation of Water Resources,” Environment & Energy Law & Policy Journal, Volume 5, June 8th, Available Online at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555944&download=yes, Accessed on 07-12-2021, Jackson Hightower)Large waterways in the United States have long been important to navigation and commerce, and protection of these uses has equally long been deemed the province of the federal government .17 Thus, navigation regulation represents an instance of supremacy federalism in water federalism: an area of water-related law where the federal government’s interests are deemed so superior that there is very little room for state action. 18This supremacy federalism is perhaps most obvious in the federal navigation servitude. The federal navigation servitude describes the federal government’s long-recognized paramount interest in maintaining the navigability of navigable waters.19 This power derives from the federal government’s constitutional authority over commerce,20 and it limits both the states’21 and private rights22 in navigable waters.In addition, the interstate commerce aspects of navigation have been incorporated into several statutory regulatory regimes that solidify the federal government’s supremacy in this arena . For example, relying on the federal government’s interstate commerce authority,23 the U.S. Supreme Court lodged final authority over navigation upon the navigable-in-fact waters in Congress.24 Congress exercises this authority primarily through the various Rivers and Harbors Acts, culminating in the Rivers and Harbors Act of 1899 (“RHA”).25The RHA prohibits the construction of actual obstructions in the navigable waters without Congress’s explicit consent.26 The building of lesser structures in the navigable waters requires a permit from the U.S. Army Corps of Engineers,27 as does excavation in and filling of these waters.28 Finally, the RHA also prohibits the disposal of refuse in the navigable waters and their tributaries.29The federal government’s supremacy over navigation and interstate commerce in water is quite broad and occasionally reaches out to override areas of water regulation deemed to be the states’ . For example, the federal paramount interest in navigation may, in extreme cases, limit the ability of water appropriators—and the state agencies assigning water rights—to destroy downstream navigability, even if the waters being appropriated are not navigable at the point of diversion. Thus, when the U.S. Supreme Court addressed the propriety of the complete diversion of the Rio Grande River in New Mexico, where it is not navigable, it concluded that such upstream diversions could not interfere with the federal government’s downstream interest in maintaining navigability.30 According to the Court, “the jurisdiction of the general [federal] government over interstate commerce and its natural highways vests in that government the right to take all needed measures to preserve the navigability of the navigable water courses of the country, even against any state action.”31 The Court has reaffirmed these potential limitations on state regulation of water in subsequent cases.32The federal navigation servitude also telegraphs the absolute national import of aquatic navigability by exempting the federal government from the normal operations of the Fifth Amendment’s “takings” clause33: federal actions to maintain navigation do not require the government to compensate private persons and entities for injuries to their (state-based) private property rights.34 For example, as early as 1829 the U.S. Supreme Court noted:Laws in relation to roads, bridges, rivers and other public highways, which do not take away private rights to property, may be passed at the discretion of the legislature, however much they may affect common rights; even private rights, if they are not those of property, may be taken away, if it be deemed necessary consequence of their construction, without making compensation.35 The Court has affirmed this aspect of the navigation servitude on several occasions .36Thus, the federal government’s supremacy in the realm of navigation is pervasive, raising the issue of why: Why is it that, with respect to navigation, nearly absolute federal control and dominance was early established and remains the norm? Benjamin Sovacool has created a typology of environmental federalism that suggests some answers. With respect to supremacy (or centralized) federalism, Sovacool notes that:Those in favor of centralizing environmental decision making note that federal intervention brings with it a number of important benefits: (i) it is the most efficient way to address spillovers or transboundary pollution; (ii) it provides a degree of uniformity for manufacturers and investors; (iii) it produces economies of scale; and (iv) it promotes distributive justice and a minimum standard of environmental quality, thus preventing a race to the bottom among the states.37

2AC – AT: Link – Fed Involvement Fine Federal involvement in water occurs without broader federalism disruptions. Gerlak 06 — Andrea Gerlak, Professor in the School of Geography, Development and Environment at the University of Arizona, co-editor for the Journal of Environmental Policy and Planning, PhD in political science from the University of Arizona, 2006 (“Federalism and U.S. Water Policy: Lessons for the Twenty-First Century,” Publius, Spring, Volume 36, Available Online at https://www.jstor.org/stable/4624743?seq=2#metadata_info_tab_contents, Accessed on 07-15-2021, Jackson Hightower)Federalism and Streams of U.S. Water Policy Federal-state relations have evolved dramatically over U.S. history. There has been a movement from a layered cake to marble cake to a spider web.3 Notable federalism scholars such as Elazar and Kincaid have well described the eras and patterns of federalism in the United States.4 Today, there is a broad recognition that the late twentieth century became increasingly intergovernmental.5 It also became increasingly ambiguous. The 1990s have been described as a period of incoherence and ambiguity on questions of federalism.6 David Walker argues today's federalism is "overloaded, unbalanced, ambivalent, and conflicted."7 Some question whether the modern federal system is beginning to exact too high a price for state and localities.Many environmental policy scholars have traced the development of environmental policy in the United States, describing different epochs or eras in policy history.9 Rosenbaum has documented the rising discontent with regulatory federalism that has come to characterize environmental and natural resource policy and the "uneasy collaboration" occurring today between levels of government.10 McKinney and Harmon well describe the conflict over natural resources today, with particular attention to western resources and collaborative efforts to resolve such conflicts." Others tell of the new pragmatic, third-way approach to environmental governance:A sometimes inchoate, always evolving, and decidedly pragmatic "third way" approach to environmental governance, one that focuses on building a results- based (or outcomes-based) sense of common purpose as an antidote to the shortcomings of conventional bureaucratic, command-and-control, procedure- based, and adversarial approaches to ENR [environmental and natural resources] protection.Scheberle calls particular attention to policy implementation and intergovernmental relationships in the environmental policy arena. The analysis provided here builds on the work of both federalism and environmental policy scholars in an attempt to better understand the development of U.S. water policy. It traces federal-state relations and finds that intergovernmental relations related to water policy have evolved into a pragmatic federalism. It argues that streams of water policy closely follow eras of federalism: from state-based federalism to centralized federalism to cooperative federalism to pragmatic federalism. Glendening and Reeves's (1984) pragmatic federalism is our launching point. They point to "a constantly evolving, problem-solving attempt to work out solutions to major problems on an issue-by-issue basis , resulting in modifications of the federal and intergovernmental systems. No one event or piece of legislation captures the pragmatic federalism of today's water policy . It does not have an overarching framework or philosophical bent. It is not a one-size-fits-all approach. Rather, it is place based, collaborative, and experimental. Process , as opposed to division of authority, reigns supreme . Relying on a diverse set of approaches and tools, it strives to be more accessible with improved processes and greater coordination. Today's water policy is highlighted by pragmatic federalism that (1) emphasizes collaborative partnerships , (2) relies on adaptable management strategies, and (3) is problem and process oriented. Given the perceived crisis in water management and the general lack of a national policy today, it is important to examine intergovernmental relations pertaining to water policy. Such an exploration will contribute to our understanding of water policy and may serve to inform future water resources decision making. The history of the federal government's relationship to the individual states with regard to water policy can be divided into five streams. The first stream, which encompasses the birth of the United States in 1776 to Theodore Roosevelt's presidency in the early twentieth century, is characterized by state-based federalism, where the issues of the day, mainly canal building and flood control, were dealt with by the states with the federal government playing a minor role. The Reclamation Act of 1902 begins the second stream. During this era of centralized federalism, the federal government increased its role in water management. The third stream occurred between 1960 and 1980. During this time cooperative federalism, or shared federal-state authority, characterized water policy in the United States. The new federalism of the Reagan era ushered in the fourth stream, which is characterized by an emphasis on increasing state responsibilities, such as cost sharing in water projects, and which marked a reduction in federal funding. This devolution, with an increased focus on collaboration and restoration,

continued through the Clinton years, with a greater emphasis on restoration and collaboration, and has evolved into the more pragmatic federalism of today.

2AC – AT: Link – Procedural favoritism Procedural favoritism is normal means – shields the link.Fischman 5 [Robert L. Fischman; 2005; Distinguished Professor of Law at the University of Indiana-Bloomington, Adjunct professor at the Indiana University School of Public and Environmental Affairs; "Cooperative Federalism and Natural Resources Law," New York University Environmental Law Journal, Vol. 14, No. 1, p. 200] |Trip|Another approach found in a broad conception of cooperative federalism is state favoritism in the federal process (" procedural favoritism ") , which is well entrenched in natural resources law . This coordinating tool reserves a special role for states in the process by which the federal government makes environmental decisions. Though it does not guarantee that the state view will prevail, 83 federal agency decision-makers have a responsibility at least to document their consideration of the state's view and to explain why it did not prevail. The state's direct avenue to assert its interests often is not open to other stakeholders in the federal decision.

2AC – AT: Link – General The plan is soundly constitutional Baumgartner 5 [Matthew B Baumgartner, MA, JD University of Michigan. Law Clerk for the United States District Court for the Eastern District of Texas. SWANCC's Clear Statement: A Delimitation of Congress's Commerce Clause Authority to Regulate Water Pollution. Michigan Law Review , Aug., 2005, Vol. 103, No. 8, 2005. https://www.jstor.org/stable/pdf/30044491.pdf?refreqid=excelsior%3A21d3c13c307a8554d50077eadc29bad0]Although some may prefer no federal regulation over isolated wetlands as a matter of policy, the Constitution is more permissive , especially in light of the lack of a competing traditional state function.' Water pollution control has developed into an important national concern , and it will only become more critical to the nation's welfare as time passes and water resources become ever scarcer. A federal water protection regime can , on a sound constitutional basis , seek to protect the nation's waters from commercial pollution .

2AC – AT: Link – Proper Authority Federal water pollution regulation is proper use of Commerce Clause authority and distinct from land use federalism issuesBaumgartner 5 [Matthew B Baumgartner, MA, JD University of Michigan. Law Clerk for the United States District Court for the Eastern District of Texas. SWANCC's Clear Statement: A Delimitation of Congress's Commerce Clause Authority to Regulate Water Pollution. Michigan Law Review , Aug., 2005, Vol. 103, No. 8, 2005. https://www.jstor.org/stable/pdf/30044491.pdf?refreqid=excelsior%3A21d3c13c307a8554d50077eadc29bad0]Two considerations are paramount to the structural federalism analysis . First , the most prevalent concern in the modern jurisprudence is that some areas of regulation must be left solely up to the states to regulate.' The second consideration is whether water pollution is an aspect of interstate commerce that states cannot effectively manage without federal policy. Section III.A argues that water pollution regulations are an essential part of national environmental policy, which the Supreme Court has deemed distinct from the traditional state power over land use . Section III.B argues that states cannot regulate pollution of navigable waters without disturbing the policies of neighboring states, thus making it a proper use of Congress's Commerce Clause authority to impose national water pollution control standards.

2AC – AT: Link – First Principles Limiting federal authority to only navigable waters undermines the first principles of the Commerce ClauseBaumgartner 5 [Matthew B Baumgartner, MA, JD University of Michigan. Law Clerk for the United States District Court for the Eastern District of Texas. SWANCC's Clear Statement: A Delimitation of Congress's Commerce Clause Authority to Regulate Water Pollution. Michigan Law Review , Aug., 2005, Vol. 103, No. 8, 2005. https://www.jstor.org/stable/pdf/30044491.pdf?refreqid=excelsior%3A21d3c13c307a8554d50077eadc29bad0]Limiting federal authority to navigable-in-fact waters and their directly adjacent wetlands would undermine the rationale behind the Interstate Commerce Clause itself . The " first principles " of federal regulation of interstate commerce endorse the notion that federal control should extend to areas where the states may interfere with each other's efforts .' Indeed, Lopez cited language in Gibbons indicating that only internal commerce which "does not extend to or affect other States" is beyond the reach of federal powers over commerce.' The long standing rationale for federal water pollution control is based on this very principle of "subsidiarity," which dictates that federal control is necessary where the states cannot effectively regulate themselves.' In fact, the transboundary nature of water pollution poses the identical problem that gave rise to the need for an exclusive federal power over interstate commerce in the first place . Water pollution can be transferred from one state to another , because states often share the same river, lake or other hydrological connection with other states' waters.' Thus, even states with strong water pollution control standards would suffer from water pollution because of weak standards in neighboring states.

2AC – AT: IL – Federalism Fails Federalism fails -it’s too rigid and limiting leads to disputes and a lack of adaptionBabie et al 2020 (Paul T, Personal Chair of Law in the Adelaide Law School of The University of Adelaide, Paul Leadbeter, Senior Lecturer, Prior to that he had been a partner in the Adelaide law firm, Norman Waterhouse where as a member of that firm's Environment and Planning team Graduate Diploma in Legal Practice, Kyriaco Nikias, University of Adelaide, Adelaide Law School, Department Member, “Federalism Fails Water: A Tale of Two Nations, Two States, and Two Rivers”, 29 Apr 2020. ENVTL. LAW AND LITIGATION, Vol. 35, Issue , https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3587149 // JK ) As a result of the federal division of powers over water, the potential for “any unilateral legislative action” by the federal government is “necessarily . . . partial.”136 Therefore, “[o]ver the years, a high degree of cooperation has evolved between various agencies of the federal government and the states in the formulation and administration of water plans.”137 This is a fundamental, indeed, necessary adjunct of federalism, which is “consistent with any degree of common or cooperative or parallel action between the unit governments, provided it is in a substantial degree voluntary.”138 Cooperation is not limited to water resources; instead, it happens, and happens frequently in many spheres of intergovernmental activity in the American and Australian federal systems. In Australia, for instance, “the increase in such [cooperative] activities . . . since 1928 has been as marked as the increase in direct Commonwealth power.”139 A “Byzantine complexity”140 characterizes the nature of the cooperative, flexible, or marble cake federalism with respect to water law in California and South Australia—and, indeed, in the water law of the whole of Australia and the southwestern United States. It is not our objective here to assess the whole of this law.141 Rather, we want, first, to

provide an overview of a representative example of the nature of cooperative federalism drawn from each jurisdiction concerning their major water supply rivers—the Colorado and the Murray Rivers (watercourses not contained entirely within the relevant state’s boundaries). As we will see in the next two sections, a unique body of law in each jurisdiction seeks to achieve cooperative federalism for the provision of water supply. Having presented these representative examples, Part III provides an example of the sort of dispute to which this cooperative federalism can give rise—in the case of California, over the U.S.-California Central Valley Agreement, and in South Australia, over the National Water Initiative 2004 and the Water Act

2007 (Cth). We argue that both the California and the South Australian e fforts at cooperative federalism fail, not through a lack of will to cooperate, but because they are doomed from the start. Both efforts are founded upon federalism, which, no matter the extent of cooperation engendered, cannot ever allow for the effective, comprehensive management of the entirety of the integrated whole of the water resource. We turn, then, to the attempts at cooperative federalism found in California and South Australia. The “Law of the River” represents a primary example of the Byzantine complexity that characterizes the cooperative water law flowing from federalism in the southwestern United States.142 It comprises the prior- appropriation doctrine143 and [t]he treaties, compacts, decrees, statutes, regulations, contracts and other legal documents and agreements applicable to the allocation, appropriation, development, exportation and management of the waters of the Colorado River Basin . . . . There is no single, universally agreed upon definition of the Law of the River, but it is useful as a shorthand reference to describe

this longstanding and complex body of legal agreements governing the Colorado River.144 David Owen provides a more colorful account: Grady Gammage, Jr., a lawyer . . . once told an interviewer that, when he first became involved in water issues, he felt that every time he made a comment about the Colorado another lawyer would inform him that whatever he had just suggested was “prohibited by the Law of the River.” Gammage had been in practice for some time, but didn’t recognize the reference. “So I go to the Arizona Revised Statutes book and pull it down, and I look up ‘River, comma, Law of,’ and it’s not there.” He did the same with the United States Code, also without success. “It turns out that the Law of the River is kind of like the British Constitution,” he continued. “It’s whatever the people who have really been hanging around it a long time think it is.” Invoking it, furthermore, is a privilege reserved for those who have undergone what Gammage called “the Water Buffalo ceremonial admittance rites.” Water Buffaloes are old-school western-water experts:

managers, engineers, diverters, legislators, and lawyers, almost all of them men, whose long immersion in riverrelated discussion, arguments, negotiations, and lawsuits has made them deeply suspicious of non-Water Buffaloes and has convinced them that wet water [actual flow of the Colorado River] is, in many ways, less significant than paper water [theoretical rights to the Colorado River’s

flow].145 This account demonstrates the difficulties involved in managing a resource that is an integrated whole when those attempting to do so each enjoy a fragmented portion of the necessary power—in other words, the difficulty of applying federalism to water resources. For our purposes, then, we outline the Law of the River only as it applies to California’s water supply. That is enough to demonstrate the difficulties created by federalism. The principle components of that story involve Los Angeles’ thirst for more water, the Colorado River Compact of 1922, and the subsequent Arizona v. California litigation in the United States Supreme Court For as long as First Nations peoples gathered to live in the area around Los Angeles, the arroyo that came to be known as the Los Angeles River supplied the communities’ water needs. The small populations there attracted the first European colonizers from Spain in 1769, who established a pueblo and imposed Spanish water law. Europeans were followed by Americans—the California Republic was formed in 1848 and entered the Union in 1850—especially those moving west to find their fortunes in gold. The Los Angeles River, as erratic as the course of its flow was, continued to water the growing community, although flash floods would periodically wipe out parts of the settlement. The government of the city of Los Angeles, as the settlement was called, took increasingly interventionist measures to control the location and flow of the watercourse, with the U.S. Army Corps of Engineers ultimately lining the entire length of the channel with concrete. It became apparent by the turn of the 19th century, though, that the Los Angeles River, even in a good year, would never be enough to supply the water demands of the growing city. The town fathers, led by William Mulholland, looked north, to the Owens Valley.146 The Owens River, northeast of Los Angeles, seemed to be the answer to Los Angeles’s water supply problems. Led by Mulholland, the city of Los Angeles began to buy up the existing water rights of landholders in the Owens Valley. Between 1908 and 1913, the Los Angeles Aqueduct was constructed, hoisting Owens water over the Sierra Nevada, bringing it south to Los Angeles. But demand soon outstripped this supply, too. And so, the city cast its eyes further afield. But where? California, and especially Southern California, largely semiarid and arid, had little additional supply.147 But further east, a seemingly wild and untamed river carried with it an entirely untapped flow—perhaps this would be the answer to Los Angeles’s water prayers. The river? The Colorado.148 The Colorado River Basin takes in two nations—Mexico and the United States—and seven states—Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming.149 Putting the international dimension to one side,

given the federal structure of the United States, it goes without saying that no one unit of government, federal or state, is capable of dealing with the entirety of the Colorado River. Unsurprisingly, this fragmentation of power over the river among so many competing demands and priorities has rendered this “iconic yet diminished . . . river . . . more an ‘industrial project’ than a natural waterway, a river long stripped of its wildness and freedom.” How, then, given the overlapping and conflicting jurisdictions of two nations and nine different governmental units, could the flow of the Colorado River be harnessed in slaking Los Angeles’s thirst? The convergence of the interstate compacts power of the United States Congress, coupled with the equitable apportionment original jurisdiction of the United States Supreme Court, gave birth to the Colorado River Compact of 1922 (the 1922 Compact)151 and the ongoing Arizona v. California litigation152 which, to date, has resulted in nine Supreme Court orders apportioning the flow of the Colorado River among the seven party states.153 The 1922 Compact seemed the answer to Los Angeles’s water needs.The 1922 Compact, a treaty among the United States (through the U.S. Department of the Interior, Federal Bureau of Reclamation) (Reclamation)154 and the seven states that fall within the Colorado Basin [d]ivide[d] the available water [of the Colorado] between an “Upper” and “Lower” Basin with the geographic division at Lee Ferry in northern Arizona. This agreement . . . allocates 15 million acre-feet (“maf”) of annual “exclusive beneficial consumptive use,” 7.5 maf each to the Upper and Lower Basins, with an additional maf to the Lower Basin. The [1922] Compact also anticipated additional water being committed to Mexico and future allocation to the two Basins of “surplus” water.155 The cooperation embodied in the 1922 Compact—to which Arizona would not accede until 1944—was an attempt to provide a share of the Colorado River water to each of the seven signatory states for “agricultural, residential, and industrial use and to compete for the

hydroelectric power” produced at the largest dam then known to human history: the Hoover.156 It also contained provisions to meet the federal government’s obligations to the “Indian tribes.”157 Soon, though, two things became apparent: first, that 1922 had been a particularly wet year, which meant that allocations based on what seemed an abundance of water could in fact never be satisfied in those years that were nowhere near as wet as 1922. There was scarcely enough water to meet the state obligations, let alone provide for any surplus.158 Second, with respect to an

already scarce supply of water, “Los Angeles emerged as the leading force in the West to bring the [Hoover Dam] project to fruition and obtain much of the water and resulting hydroelectricity for itself.”159 The 1922 Compact is the first of thirteen primary elements that together constitute the Law of the River.160 As we noted above, we do not propose an exhaustive review of each of those elements. Instead, we provide here a brief overview of eleven of the elements other than the 1922 Compact, as well as the twelfth, the Arizona v. California litigation.161 The other eleven elements of the Law of the River are as follows: 1. Boulder Canyon Project Act of 1928—ratified the 1922 Compact, authorized the construction of the Hoover Dam, and apportioned flow among the lower basin states of Arizona, California, and Nevada.162 2. California Seven Party Agreement of 1931—helped settle a dispute among seven intra-California municipal and agricultural interests over California’s share of Colorado River water.163 3. Mexican Water Treaty of 1944—committed 1.5 maf of the Colorado River’s annual flow to Mexico. 164 Upper Colorado River Basin Compact of 1948—created the Upper Colorado River Commission and apportioned the Upper Basin’s flow among Colorado, New Mexico, Utah, and Wyoming, as well as the part of Arizona that lies within the Upper Basin.165 5. Colorado River Storage Project of 1956—provided a comprehensive Upper Basin-wide water resource development plan and authorized the construction of a number of dams for river regulation and power production.166 6. Colorado River Basin Project Act of 1968—authorized a number of projects in both the Upper and Lower Basins, including the Central Arizona Project (CAP). Most significantly, it made the CAP water supply subordinate to California’s apportionment in times of shortage.167 7. Criteria for Coordinated Long-Range Operation of Colorado River Reservoirs of 1970—coordinated the operation of reservoirs in the Upper and Lower Basins.168 8. Minute 242 of the U.S.-Mexico International Boundary and Water Commission of 1973—required the United States to take actions to reduce the salinity of water being delivered to Mexico.169 9. Colorado River Basin Salinity Control Act of 1974—authorized desalting and salinity control projects to improve Colorado River quality.170 10. Endangered Species Act of 1973—provided for the conservation of endangered and threatened species of fish, wildlife, and plants throughout the United States.171 11. Native American Water Claim Settlements—involved litigated and negotiated “settlements . . . between tribes, the federal government, states, water districts, and private water users” and which, “[a]fter being negotiated, approv[ed] and implement[ed] . . . require federal action.”172 In the case of the Colorado River, this federal action is authorized by article VII of the 1922 Compact.173 With this background to the Law of the River effected through the interstate compacts power in place, we

turn now to an assessment of the role played in the development of that law through the Supreme Court’s original jurisdiction contained in the equitable apportionment power. 2. Equitable Apportionment: Arizona v. California The entirety of the Law of the River requires adjudication of disputes relating to the allocation of flow effected by the 1922 Compact. As we saw in Part I, the Supreme Court may exercise its original jurisdiction pursuant to the equitable apportionment power under the Constitution as an adjunct to Congress’ interstate compacts power to allocate water supply of rivers under federal jurisdiction among states subject to an interstate compact. This has allowed the Supreme Court to become involved in the allocation of Colorado River water in one of the longest-running litigations in the history of the republic. The dispute, Arizona v. California, is still ongoing and has to date produced ten orders adjusting the allocation of Colorado River water pursuant to the 1922 Compact in each of the following years: 1931, 1934, 1936, 1963, 1964, 1966, 1979, 1983, 1984, and 2000.174 The first order specified the amount of water to which Arizona was entitled under the 1922 Compact. Each subsequent order was the outcome of new claims made by Arizona that California was using more than its share of water pursuant to the 1922 Compact and its application by the Court in the earlier orders.175 The Supreme Court issued the most significant orders affecting the Law of the River

in 1963, 1964, and 1979.176 In 1963, the Court sought to resolve what was then a twenty-five-year-old dispute between Arizona and California stemming from Arizona’s desire to build the Central Arizona Project, which would allow Arizona to use its full water apportionment.177 California objected on the basis that Arizona’s use of water from a Colorado tributary constituted use of its Colorado River apportionment and that California had over time acquired a right to some of Arizona’s apportionment through the doctrine of prior appropriation.178 The Court found that lower basin states have a right to appropriate and use Colorado tributary flows and that the doctrine of prior appropriation did not apply to apportionments in the lower basin.179 In 1964, the Court enjoined the U.S. Secretary of the Interior from delivering water outside the framework of apportionments defined by the law and mandated the preparation of annual reports documenting water use in the lower basin states. 180 And in 1979, the Court interpreted the meaning of “present perfected rights” pursuant to article VIII of the 1922 Compact, which, it held, took priority over later contract entitlements established under state law.181

2AC – AT: IL – No Spillover No spillover – Courts inevitably apply Lopez doctrine to restrain federal water authoritySutton 21 (Victoria, MPA, PhD, JD is the Paul Whitfield Horn Professor, Texas Tech University School of Law. 4-19-21 “Unintended Consequences of Water Policy and Law” Texas Tech University School of Law https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3830042 pp. 12-14 JO)Congress had another opportunity to clarify the wetlands issue and scope of the “navigable waters” term. Instead, in 1977, Congress referred to wetlands and navigable waters as separate items in a series in a Senate Report. They wrote, “there should be a degree of discipline over the extent to which these activities destroy wetlands or pollute navigable waters.”31In another part of the Report, the Congressional language reads, “It may be that the States will be reluctant to develop the control measures and management practices which protect upland wetlands and navigable waters.”32From this language it appears Congress did not intend to include wetlands in the definition of navigable waters because the Report repeatedly refers to wetlands and navigable waters separately rather than under the single term navigable waters. The 1977 Report specifically states that “The committee amendment does not redefine navigable waters. Instead, the committee amendment intends to assure continued protection of all the nations waters ....”33Further, the Senate Committee wrote they would refrain from redefining the term navigable waters until the controversy between the House and Senate over the extent of USACE’s jurisdiction ended. Eventually, the Senate proposed exemptions for farming and forestry, and Congress agreed that the USACE should have jurisdiction over traditional navigable waters of the United States as well as adjacent wetlands .34Then the USACE sought to extend its jurisdiction to non-adjacent wetlands, or isolated wetlands and they were sued. The court in that case, Avoyelles Sportsmen’s League v. Alexander35held that Congress’s intent was clear that they intended to protect isolated wetlands, thus they were within the reach of § 404 of the Clean Water Act. It was not until 1995, that the U.S. Supreme Court agreed to hear a case that would consider at what point could Commerce Clause power could be limited. After decades of jurisprudence that demonstrated a broad and unconstrained federal power based on the Commerce Clause, this case proved to be a landmark in Commerce Clause jurisprudence, the court holding a federal law to regulate possession of guns near schools, and a school district clearly went too far, and into an area of state regulation, the regulation of schools. So in United States v. Lopez36, the U.S. Supreme Court struck down the Gun-Free School Zones Act of 1990 because Congress exceeded their power under the Constitution. The test for such power was that the activity had to be economic in nature, as well as the test that the activity “substantially affect interstate commerce.”37After this landmark opinion, many believed that federal environmental statutes might now be challenged and struck down, since the argument could be made that environmental protection may not meet the “economic”38criteria. Wetlands was the first environmental law case to challenge a statute based on the landmark, United States v. Lopez opinion, and it went right to the definition of the term “navigable waters.” In 2001, Solid Waste Agency of Northern Cook County (SWANCC),39a case involving wetlands that were isolated from navigable waters, was heard by the U.S. Supreme Court. Here, the U.S. Supreme Court held that “non navigable, isolated, intrastate waters ---which , unlike the wetlands at issue in Riverside Bayview, was not “actually. . .on a navigable water” and so not included as “waters of the United States.” A startling decision for environmentalists who had hoped that sound scientific logic would prevail over constitutional jurisdictional parsing. But the court did not allow federal jurisdiction to extend to “isolated wetlands” through the application of the Section 404 of the Clean Water Act. In 2006, another case was back before the highest court in the land, about wetlands but this time it was a criminal conviction of an individual filling an “isolated” wetlands. In Rapanos v. United States,40the U.S. Supreme Court’s divided opinion 5-4, with a plurality opinion written by Justice Scalia, confirms the conundrum of meeting the goal of the Clean Water Act within Constitutional federalism constraints. Justice Scalia was the Associate Justice most known for first, asking the plain meaning of a term in a statute for interpretation. However, here, he opined, “navigable waters is not completely devoid of meaning”, but a hydrological connection is too vague.

Federalism issues are too complex to be disrupted by one policy.Beech and Rivas 19 — Jason Beech, Professor at the University of San Andres, and Axel Rivas, Professor in Social Sciences at the University of San Andres, 2019 (“Multiple federalisms,” University of San Andres, Available Online at http://www.aareconference.com.au/public/assets/e5c7aaf7f9/Session-book-with-full-abstracts-v6.pdf, Accessed on 07-15-2021, Jackson Hightower)In the case of federal systems, extra layers of complexity are added to the challenge of examining education policies and power relations in education. Federal systems challenge the use of the nation state as the taken for granted unit of analysis, since sub-national units can reinterpret national and global mandates differently , and can even produce their own initiatives independently from the federal level. Moreover, empirical evidence shows that federalism cannot simply be opposed to unitary systems. There are diverse institutional designs of federal systems that require detailed analyses of the effects that federalism might have on processes of educational governance. Thus, we argue that there are multiple federalisms , and that there is much work to be done in terms of mapping, interpreting and comparing the different ways in which federations govern education.

2AC – UQ – Overreach Now EPA overreach is non-unique – multiple instancesBosworth ’20 (Matthew, professor of political science at Winona State University, “The EPA and Federalism: A Pracademic Perspective” 7-2020, Political Science and Politics Vol 53 Issue 3, https://www.cambridge.org/core/journals/ps-political-science-and-politics/article/epa-and-federalism-a-pracademic-perspective/70FB3C144763A0652CE60DFCC6F7AB12//AF)In the relationship between state/local governments and the EPA, both sides need to maintain trust. I saw some challenges to this.

Regarding Section 401 of the Clean Water Act discussed above, under the administration’s proposal, states’ permitting authority would be effectively reduced, and the agency could override a state if necessary. In the public proposal on Regulations.gov (Docket EPA-HQOW-2019-0405-0025), though, the Agency claimed that

the proposal “may not have federalism implications.” The agency pointed to a pre-proposal, in-person consultation that it had done with Big Ten groups, and a later webinar, as signs that state and local interests were not being ignored—but the EPA was claiming in principle that the consultation was not required . This reading might change in the final rule; if it stands, though, most states would interpret it as belying reality and demonstrating bad faith. A much larger challenge to federalism consultation arose in September 2019, when acting administrator Andrew Wheeler, apparently with presidential approval, revoked California’s waiver under the Clean Air Act that allowed the state to set higher auto emissions standards to combat climate change (Davenport 2019). Thirteen states had followed California’s lead in the stricter emissions limits. This decision was effectively preemptive of those states. There was no prior federalism consultation, as EO 13132 would seem to

require, certainly in spirit if not in form, blindsiding states. A telling reaction came from the ECOS, the organization of state environmental agency officials. ECOS wrote Wheeler a letter stating in part “[We are] seriously concerned about a number of unilateral actions by US EPA that run counter to the spirit of cooperative federalism and to the appropriate relationship between the federal government and the states...” ECOS “respectfully demanded” a meeting with Wheeler to discuss its concerns—strong language from a group representing a wide

range of states (Lee 2019). Seifter (2014b) says that states generally are effective in representing their interests as states per se, and ECOS was doing its part. The administrator, though, declined the requested meeting, stating that EPA officials were already consulting with ECOS on multiple issues; an additional meeting was not necessary. The dispute over California auto emissions might have long-lasting impacts on EPA federalism consultation. States in particular, along with intergovernmental association representatives, will likely have long memories about EPA’s ignorance of consultation on a very significant policy issue. From interacting with association representatives, I gathered that many had been in Washington for 20 or 30 years. Perhaps emblematic of the challenge to the consultation was a message from Wheeler containing updates to the agency’s Strategic Plan for 2018–2022 (EPA Press Release 9/9/2019). Strategic Goal 2 had been: “Cooperative Federalism: Rebalance the power between Washington and the states to create tangible environmental results for the American people.” The updated language was: “More Effective Partnerships: Provide certainty to states, localities, tribal nations, and the regulated community in carrying out shared responsibilities and communicating results to all Americans.” So “cooperative federalism” was being downplayed in favor of “certainty.” Immediately related to the California conflicts, but with wider implications, one of my EPA colleagues referred to “vindictive federalism.”

2AC – UQ – COVID COVID thumps — federalism is already broken. Kettl 20 — Donald F. Kettl, Sid Richardson Professor at the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin, nonresident senior fellow at the Volcker Alliance, the Brookings Institution and the Partnership for Public Service, former dean in the School of Public Policy at the University of Maryland, recipient of the American Political Science Association’s John Gaus Award, the Warner W. Stockberger Achievement Award of the International Public Management Association for Human Resources, and the Donald C. Stone Award of the American Society for Public Administration, holds a Ph.D., M.Phil., and M.A. in Political Science from Yale University, 2020 (“States Divided: The Implications of American Federalism for Covid-19,” University of Texas at Austin, No Date, Available Online at https://onlinelibrary.wiley.com/doi/pdf/10.1111/puar.13243, Accessed 07-15-2021, Jackson Hightower)The COVID-19 outbreak was, by any measure, one of the most challenging public policy problems in American history—and indeed one of the most complex that modern governments anywhere have faced. But amid the global challenges, the United States stands apart because of the highly devolved nature of its response. Although COVID-19 became a clearly national problem, the country did not meet it with a national response. Indeed, the Washington Post’s editorial board argued that creating a robust national testing system was “a uniquely federal responsibility,” a strategy that should have been “a Manhattan Project for the pandemic age.” Instead, President Trump “left the job to governors, and the nation is staggering under the consequences” (Washington Post 2020). For the success that the governors did have, the president took credit. He tweeted, “Remember this, every Governor who has sky high approval on their handling of the Coronavirus, and I am happy for them all, could in no way have gotten those numbers, or had that success, without me and the Federal Governments help. From Ventilators to Testing, we made it happen!” (Trump 2020b).The nation’s strategy was built on a wobbly foundation, riven by great tensions of federal versus state power, and then with the states pulling in different directions. The state reactions, in turn, matched the different policy strategies of the states in many other policy areas as well. It is one thing to rely on “laboratories of democracy” to experiment with policy initiatives and determine which ones deserve wider adoption. But it is quite another for the nation’s response to a truly national problem to vary so greatly. The American response to COVID-19 underlines a growing truth about American public policy: The United States is a country with states moving in different directions, and these different directions have grave consequences for the wellbeing of Americans. The nation faced fundamental choices at the start of the pandemic: first, whether the federal government would lead on issues that were truly national in scope, but instead it pushed responsibility to the states; and then whether the states would seize the punctuation of the equilibrium to create a new governance regime, but instead they slid back into long-established and increasingly disparate patterns. At the core, this is the price of American federalism . The virus frames the question of whether that price is simply too high to pay when faced with the biggest policy challenges of the 21st century.Is this price the inevitable result of James Madison’s strategy in 1787 to balance federal and state power, to nudge the Constitution toward ratification? The long history of American democracy is, in fact, one where the original compromise has fed division as well as experimentation in the laboratories of democracy. But in COVID-19, that grand compromise exacted a big price, with a federal government unwilling to act to frame a genuine national policy, with states going down different roads, and where the entire creaky system was too slow to act on a problem that paid no attention to state boundaries and that moved faster than government’s ability to keep up. Alexander Hamilton had framed an alternative vision, of a robust federal government powerful enough to push forward national policies to attack national problems. That, indeed, was the approach advanced with great success in the first weeks by Germany’s Angela Merkel, who took on her own state governments (Kupferschmidt and Vogel 2020). Even in Germany, tensions between the central government and the states began rising, although the national government was not shy about forcefully crafting a robust national policy, calling out the states for reopening too quickly, and for protecting the strong results that the country won in the important early weeks of the very long campaign against the virus.The insidious complexity of the virus quickly demonstrated that the first decisions made by government officials were only the initial salvos in a far longer war that was to test the systems of government around the world. But it is impossible to escape the conclusion that the United States faced the virus with a system of governance that was not up to the job , in part because the initial outcomes were less positive than in other federal systems and because the treatment of citizens varied so greatly across the country. And the widely—sometimes wildly— varying responses of its governance meant that citizens suffered more than they needed to—and that they suffered more in some places than others.Decisions about COVID-19 followed the broader strategies already in place: for the federal government to pass the buck to the states, and for the states to go their own ways, often in different directions. The result was a system of states

divided , with deep and enduring implications for Americans and the pursuit of “equal protection of the laws,” as the Fourteenth Amendment to the Constitution so elegantly puts it.

At best, federalism is already weakening — COVID proves Hodge 20 — James G. Hodge, Jr., Peter Kiewit Foundation Professor of Law, Director of the nationally-ranked Center for Public Health Law and Policy at the Sandra Day O’Connor College of Law, Arizona State University, Director, Western Region Office, Network for Public Health Law, recipient of the 2006 Henrik L. Blum Award for Excellence in Health Policy from the American Public Health Association, 2020 (“Federal vs. State Powers in Rush to Reopen Amid Coronavirus Pandemic,” Just Security, April 27th, Available Online at https://www.justsecurity.org/69880/federal-vs-state-powers-in-rush-to-reopen-amid-coronavirus-pandemic/, Accessed 07-15-2021, Jackson Hightower)Even less defined are the legal ramifications behind the political grandstanding about reopening or maintaining stay home and other mitigation orders. National and state responses to COVID-19 are severely testing constitutional structural principles of federalism at the heart of public health responses.Following multiple federal missteps early in the pandemic around testing, coordination, and messaging, substantial constitutional challenges have surfaced. On April 13, the president claimed all-inclusive federal power to require state action, specifically to open up the economy and override New York and other states’ mitigation efforts. Two days later he pushed responsibilities back to the states to follow forthcoming White House reopening guidelines. When some states balked, Attorney General William Barr threatened to sue states and localities whose infection control measures counter federal objectives. After Georgia laid out aggressive reopening measures, Trump criticized a political ally, Kemp, for proceeding too quickly (after initially supporting the governor).Americans are left wondering, “which level of government is actually in charge here?” In the face of a pandemic like COVID-19, the answer under principles of federalism is increasingly clear: neither . Constitutional federalism is designed to assure political accountability at each level of government not so much through clear demarcations of power, but rather through incentives to engage in collaborative responses.Assessing State and Federal PowersThe 10th Amendment reserves police powers, including inherent sovereign powers to protect the health, safety, and general welfare, to the states. This suggests states are primarily responsible to quell substantial threats like COVID-19. States like California, Illinois, New York, and Washington are calling their own shots, invoking strong emergency public health powers coupled with local government support. They and more than a dozen other states have banded together in regional alliances to generate their own roadmap to reopening. Their successes are winning political points for their governors among many, but not all, residents.Trump has his own constitutional levers to pull. By declaring or endorsing multiple national states of emergency authorized by Congress, the president unleashed a bevy of emergency options, many of which have been used. Federal agencies like the Department of Health and Human Services, Centers for Medicare and Medicaid Services, and Centers for Disease Control and Prevention have issued influential guidance. Specific federal statutes or regulations have been temporarily waived. Liability protections for health care workers and others have been extended to insulate them from negligence claims related to their pandemic response efforts. Manufacturers have been cajoled into ventilator and PPE production via the invocation of the Defense Production Act.None of these efforts require states to follow federal leads, but additional powers are even stronger. Exclusive federal authority to regulate interstate commerce is expansive. The attorney general’s threat of litigation against states is purportedly staked on grounds that social distancing has gone too far, inhibiting national commerce powers statutorily entrusted to federal agencies.Under 42 U.S.C. 246, for example, the U.S. Surgeon General and Health and Human Services are authorized to take actions “necessary to prevent the introduction, transmission, or spread of communicable diseases … from one State or possession into any other State or possession.” State actions deemed in conflict with federal regulatory authorities may be preempted given the supremacy of federal laws. The Department of Justice may also raise additional arguments pertaining to blatant infringements of constitutional rights, including rights to travel, privacy, and due process, from overly-aggressive state actions. The Department has already intervened on behalf of a Mississippi church in a suit raising First Amendment objections to a municipal restriction on public gatherings.In addition, federal spending powers allow Congress and the president to tie infusions of state assistance or relief funds to specific conditions, such as rescission of state business closures. While the federal government has not been so brazen yet to set such conditions, few states can afford to give up access to deep pools of resources.In his invocation of the Defense Production Act, Trump has already intimated that COVID-19 implicates national security. Taken a step further, he could more formally classify the pandemic as a national security threat, providing even greater impetus for the exercise of existing federal powers to the possible exclusion of states. If tested in court, exclusive federal interests in protecting national security may prevail.

Federalism’s Bottom LineThe driving premise of federalism is that the division of powers across the federal-state divide enhances political accountability and assures American freedoms. Many see profound weaknesses in this constitutional infrastructure. Divergent responses among neighboring states and feckless federal interventions are sure to lead to disarray and litigation .

2AC – UQ – Trump Trump provesCooper 19 — Ryan Cooper, National Correspondent at The Week, 2020 (“America's fake federalism,” The Week, April 19th, Available Online at https://theweek.com/articles/909388/americas-fake-federalism, Accessed on 07-15-2021, Jackson Hightower)But in fact, the U.S. version of federalism is largely disintegrating or fake . On the one hand, President Trump's abject failure to coordinate a national response to the novel coronavirus pandemic has forced states to jury-rig new federal structures themselves. On the other, the rump federal government is not actually constructed according to federalist principles — it is a minoritarian system which grants certain states enormous leverage over national policy. To begin, the Trump administration has refused to set up a rational system to allocate medical supplies like protective gear and ventilators across the country. The Defense Production Act allows the president to nationalize factories during an emergency, or instruct them to produce important materials, which any sane person would have done months ago. Trump still refuses to do this on a systematic basis, so states have been desperately bidding against each other and the federal government and foreign governments for supplies. Indeed, Trump's FEMA has routinely been seizing shipments of protective equipment en route to hospitals or state governments, for unclear reasons or purposes. Meanwhile, even after he stopped relentlessly downplaying the threat of the virus, Trump has continually undermined Democratic governors by blaming them for equipment shortages and testing delays. Now Trump and the right-wing agitprop machine are beginning to demand that the economy be reopened long before the virus is under control. He recently falsely claimed that he has "total" power to decide when states should reopen, and while he characteristically backed off that statement later, on Friday he recklessly encouraged the tiny groups of right-wing nuts who have been protesting state-level restrictions (after watching Fox News, of course). All this is why three groups of states have created ad-hoc coalitions to manage their fight against the epidemic. At time of writing, California, Oregon, and Washington have created a Western States Pact; Minnesota, Wisconsin, Michigan, Illinois, Ohio, and Kentucky have created another pact in the Midwest; and New York, New Jersey, Connecticut, Massachusetts, Pennsylvania, Rhode Island, and Delaware have created a third in the Northeast. More states are likely to join, or create their own pacts.The basic point is to rationally deploy medical supplies and hospital capacity, coordinate relief efforts to the hardest-hit communities, and carefully manage the easing of lockdown measures across states to prevent new infection surges from crossing state borders. In other words, they are doing what Trump should have done this entire time — except incompletely, and without nearly the resources available to the federal government.A federal system has some advantages, but the lesson is that individual regions simply cannot go it alone when faced with a nationwide emergency. There must be an overarching authority to manage the overall response — because if there isn't, states will be forced to create one on the fly. What we're seeing today is precisely why the Articles of Confederation was abandoned as an unworkable mess. That brings me to the anti-federalism of the American Constitution. If we had a true federal system then Donald Trump would not be president today. Again, the point of federalism is local control over local politics. But our goofy, anachronistic Electoral College gives small states enormously greater weight over national politics — in 2016, a vote in Wyoming counted 3.5 times as much as one in Florida, while one in Vermont counted 2.9 times as much as one in North Carolina. It is theoretically possible to win the Electoral College while losing the popular vote 4-1 — and while that is an unlikely scenario, Trump indeed won in 2016 despite receiving fewer votes. Moreover, because Electoral College votes are allocated on a winner-take-all basis, in practice only those states which randomly happen to have a close partisan balance get any campaign attention. Fully 96 percent of all presidential campaign events in 2016 happened in the 12 swing states; both the largest and smallest ones were almost totally ignored.The Senate is even more unfair. All states get two senators regardless of population — meaning Wyoming (population 579,000) and California (population 39,500,000) get the same number of seats. More people live in the largest three states (California, Texas, and Florida) than do in the 32 smallest ones. States representing just 16 percent of the national population can assemble a Senate majority, and ones representing just 10 percent can mount a filibuster — yet another ridiculous anti-democratic anachronism. This is not federalism, it is tyranny of the minority . It is a system in which smaller states and randomly evolving swing states get to dominate the national community — and while some red states like Texas are disenfranchised as a result, as we see today the overall result is heavily biased towards conservatives. If the Constitution ever does collapse as the Articles of Confederation did, what replaces it should begin with the principle of one person, one vote.

Our broken Constitution has given America the most inept and corrupt president of all time. If we could instead pick a president by whoever gets the most votes, we might reduce the chance that the next one will horrifically bungle any crisis that strikes.

2AC – AT: DA Solves Case Federalism fails as an approach to improve water quality Secchi and McDonald 19 [(Silvia Secchi, Associate Professor in the Department of Geographical and Sustainability Sciences at the University of Iowa, holds Ph.D. in Economics from Iowa State University. Moira McDonald, director of the Environment Program at the Walton Family Foundation, undergraduate degree in environmental science from Brown University, master’s and Ph.D. in geography from the University of Minnesota.)”The state of water quality strategies in the Mississippi River Basin: Is cooperative federalism working?”, Science of the Total Environment, V. 677, pg. 241-249, 8/10/19, https://www.sciencedirect.com/science/article/pii/S0048969719319266] NY

In this study we assess for the first time the effectiveness of the policies used to address nutrient pollution in the Mississippi Atchafalaya River Basin (MARB) with a NPS focus. These polices are based on cooperative federalism and thus give large autonomy and power to the states. This analysis provides a case study relevant to the management of water pollution in agriculturally-dominated watersheds worldwide. In most OECD countries, which are comparable to the US in terms of technology and institutional development, a mix of regulatory requirements and subsidies are used to reduce NPS pollution (Parris, 2011). Australia is the exception in that it uses mostly regulatory requirements. The US is at the other end of the spectrum, heavily depending on subsidies to reduce NPS pollution (OECD, 2015). The results presented here are particularly relevant to places such as the European Union, since its policies

are based on the subsidiarity principle, and its member states rely in part on voluntary financial incentive programs (OECD, 2015). This analysis can also inform broader discussions on the effectiveness of decentralized approaches to   water quality management. At the federal level, there are two main source of funding broadly related to improving NPS pollution: 319 funds from the Clean Water Act ( U.S. Environmental Protection Agency, 2016a ), and funding from the conservation title of the Farm bill. These funds are supplemented by local and State efforts, which have different temporal and spatial scales. There is no consistency in the reporting approaches, and this drastically reduces the capacity to observe whether there has been an alignment of funding with NRS priorities across the watershed. Only half the states provide in one way or another information on funding levels, sources and uses. Among these six states, there are substantial differences on the degree of granularity and on what is included in the reporting (Fig. 3. See Supplementary Material 3 for details).

The lack of consistency creates further problems because all states included in the analysis, with the exception of Louisiana, do not report additional funding to address the NRS in priority watersheds, but include all funding for the whole state. This is problematic from an additionality standpoint, as counting funding from predating programs likely causes the inclusion of activities that have different priorities than water quality, or of preexisting programs which are not targeting the specific problems and watersheds delineated in the NRS. Most importantly, these programs' activities and their impacts on water quality are already implicitly included in the baseline from which the reductions need to take place. This is the case for the Conservation Reserve Program and the Wetland Reserve Program (now subsumed into the Agricultural Conservation Easement Program), which have long-term contracts. Iowa and Indiana both report CRP rental payments, but many of these payments are for fields that were enrolled in the programs well before the NRS process, and so their benefits are already included in the baseline.Broadly speaking, the lackluster progress of the NRS-state led approach outlined here, and the loose oversight that EPA is exercising in meeting the Stoner memo criteria are significant indicators of the lack of ex post program evaluation in

environmental policy (Harrington et al., 2004), which today seems to be largely left to the courts. Further, the lack of coordination in initiatives across the watershed (with the exception of the MRBI) shows the continued abandonment of a holistic watershed approach (Cooter, 2004).

Overall, due to lack of targeting and scientific basis for the watershed prioritization, omission of CAFOs in the strategies, lack of understanding of the spatio-temporal patterns of benefits, poor implementation, and insufficient additional resources, it is apparent that the current crop of strategies is not being effective at improving water quality in the watershed and in the Gulf of Mexico. In some states such as Minnesota, the strategies and the process preceding their development have created

or added impetus to state-level activities to address NPS pollution, but in others, such as Kentucky, they have not spurred any meaningful efforts. Thus, for the basin as a whole, the current approach is not working. A recent development illustrates how the states are largely stalling, and ignoring science in the process. In early 2019, the Iowa Environmental Protection Commission (EPC) denied the petition brought forth by environmental organizations to implement Numeric Nutrient Criteria for recreational lakes, on the basis that the proposed criteria lack a scientific rationale, though the criteria were based on a 2008 recommendation from a well-known and respected group of experts from all state universities and the Department of Natural Resources. If NNCs have become so contentious they are being ignored, more fundamental reconsideration of the current approach may be necessary.

2AC – Warming Defense Warming doesn’t trigger extinctionIBD 18 [Investors Business Daily, Citing Study from Peer reviewed journal by Lewis and Curry, “Here's One Global Warming Study Nobody Wants You To See”, 4/25/18, https://www.investors.com/politics/editorials/global-warming-computer-models-co2-emissions/]Settled Science: A new study published in a peer-reviewed journal finds that climate models exaggerate the global warming from CO2 emissions by as much as 45% . If these findings hold true, it's huge news. No wonder the mainstream press is ignoring it.In the study, authors Nic Lewis and Judith Curry looked at actual temperature records and compared them with climate change computer models . What they found is that the planet has shown itself to be far less sensitive to increases in CO2 than the climate models say. As a result, they say, the planet will warm less than the models predict , even if we continue pumping CO2 into the atmosphere.

As Lewis explains: "Our results imply that, for any future emissions scenario, future warming is likely to be substantially lower than the central computer model-simulated level projected by the (United Nations I ntergovernmental P anel on C limate C hange), and highly unlikely to exceed that level. How much lower? Lewis and Curry say that their findings show temperature increases will be 30%-45% lower than the climate models say. If they are right, then there's little to worry about , even if we don't drastically reduce CO2 emissions .The planet will warm from human activity, but not nearly enough to cause the sort of end-of-the-world calamities we keep hearing about. In fact, the resulting warming would be below the target set at the Paris agreement .This would be tremendously good news.The fact that the Lewis and Curry study appears in the peer-reviewed A merican M eteorological S ociety's Journal of Climate lends credibility to their findings. This is the same journal , after all, that recently published widely covered studies saying the Sahara has been growing and the climate boundary in central U.S. has shifted 140 miles to the east because of global warming . The Lewis and Curry findings come after another study , published in the prestigious journal Nature, that found the long-held view that a doubling of CO2 would boost global temperatures as much as 4.5 degrees C elsius was wrong . The

most temperatures would likely climb is 3.4 degrees.It also follows a study published in Science, which found that rocks contain vast amounts of nitrogen that plants could use to grow and absorb more CO2, potentially offset ting at least some of the effects of CO2 emissions and reducing future temperature increases.

Climate models are wrong- we can adaptLau 18 [Matthew Lau, contributing writer to Canadians for Affordable Energy, citing peer reviewed studies from journal nature climate change and Journal of Climate, “Climate change data is wildly overestimated”, 8/14, https://torontosun.com/opinion/columnists/guest-column-climate-change-data-is-wildly-over-estimated]A study last year by Thorsten Mauritsen and Robert Pincus in the journal Nature Climate Change and another one this year by Nicholas Lewis and Judith Curry in the Journal of Climate , produced median estimates suggest ing that a doubling in atmospheric carbon dioxide would increase global temp erature s by only about half of what Intergovernmental Panel on Climate Change ( IPCC) models predict . Recently, two Heritage Foundation scholars and Canadian economist Ross McKitrick re-estimated the social cost of carbon dioxide emissions using earlier empirical estimates from Lewis and Curry, instead of relying on simulated estimates of the sensitivity of temperature to carbon dioxide concentration in the atmosphere. In one model, the social cost of carbon fell 40-50% and in another the costs dropped a staggering 80%. In addition to future warming and its associated costs likely being over-predicted by climate models, historical warming might also be less than what most temp erature records suggest . That is because some techniques for producing temperature records systematically display more warming than actually occurred. According to Patrick J. Michaels and Ryan Maue, scientists with the Cato Institute, one of the most reliable temperature data sets is from the Japan Meteorological Office . This record also shows the least amount of warming. “The fact of the

matter is,” the Cato researchers write, “that what should be the most physically realistic measure of global average surface temperature is also our coolest. ”

Not only is the amount of warming often exaggerated, but climate cost estimates are often inflated by assuming that humans will not adapt to the warmer climate. This assumption makes no sense when we consider how long the warming is supposed to take and how creative our society is when it comes to solving complex problems. Adding all this up suggests that climate change probably won’t be anywhere near as disastrous as many people imagine . This has profound policy implications – it means that the drastic and expensive tax and regulatory actions taken by governments in the name of saving the climate are increasingly difficult to justify.

2AC – Warming Turn Cooperative federalism is key to solving warmingSaha et al 20 (Devashree, Senior Associate at WRI United States. In this role, she supports state, city, and federal policymakers as they work to develop and implement policies to reduce greenhouse gas emissions and support clean energy. Tyler Clevenger, Research Analyst II for WRI U.S., working for both the Climate and Energy teams on domestic policy issues. Dan Lashof, Director of World Resources Institute, United States. He coordinates WRI’s work in the United States across climate, energy, food, forests, water and the sustainable cities programs. 10-6-20 “Meeting the Climate Challenge Through a New Climate Federalism” https://www.wri.org/insights/meeting-climate-challenge-through-new-climate-federalism JO)In recent years, U.S. state and local governments continued stepping up to demonstrate strong leadership in addressing the climate challenge, even when facing headwinds from the federal level. They continue to make progress, all while leading responses to the COVID-19 pandemic and combatting extreme weather events. Still, the possibility of eventual federal reengagement on climate solutions puts in question the future roles of state and local governments in carrying out such policies. To take a closer look at which strengths these levels of government can leverage, WRI convened a group of thought leaders1 among current and former U.S. federal, state and local government officials for a recurring dialogue. Selected participants have experience at various governmental levels in conducting energy, environmental or transportation policy. Together, they laid out a vision for what climate action could look like at all levels of government, as described in the new working paper, New Climate Federalism: Defining Federal, State, and Local Roles in a U.S. Policy Framework to Achieve Decarbonization.The task of decarbonizing the U.S. economy is too big for any one level of government to tackle alone, so each level of government — federal, state and local — must fully bring their strengths to the table. The “new climate federalism” model proposes a framework for the federal, state and local governments to work together to address climate change. What Role Can Local, State and Federal Government Play in U.S. Climate Action?

Action at every level of government is crucial to effectively address climate change . However, each level has distinct roles and capabilities that, when combined, can lead to the best outcomes. Here’s how dialogue participants envision these roles at play:Areas For a Strong Federal RoleDialogue participants generally agreed that federal leadership is essential to addressing the climate crisis, and that a strong federal role is appropriate in a range of circumstances. This is generally the case when:

the policy or action requires large investments, significant expertise or resources that are generally not available to most state and local governments.

the need for national uniformity in the policy or action outweighs the benefits of allowing variations and experimentation at the state and local levels.

there is potential for a “race to the bottom” if left in whole or in part to state and local governments. Areas For a Strong State and Local RoleParticipants noted that there are areas where strong state and local roles are essential, as they are better able to take local and regional conditions into account when designing and implementing policies. The size of the United States — as well as the variations in local economies, climate, topography, demographics, land use and expected climate impacts — can make the ability to address local concerns without federal interference vitally important. In general, a strong state or local role is appropriate when:

the policy area requires close knowledge of local topography, settlement patterns, climate or other local facts that differ from the nation overall.

effective administration of the policy requires extensive engagement with local communities . state and local governments have the resources or expertise to carry out the actions or policies with limited

federal engagement. discretion is provided to state and local governments without leading to a “race to the bottom” or creating

challenges for regulated parties due to differences in regulation from place to place.Areas For CooperationMost policy areas call for shared responsibility among federal, state and local governments. A cooperative approach can allow policymakers to capture the opportunities offered by federal action while allowing state and local governments to bring their comparative advantages to the effort. Historically, this is how most energy, environmental and transportation policies are implemented. For instance, the adoption of electric vehicles (EVs) has been supported by federal tax credits as well as various state and local incentives and tax or fee exemptions. Moving forward, any future federal program to support the deployment of zero-emission vehicles (ZEVs) will depend on state and local support to roll out charging infrastructure. As a result, this framework encompasses many of the major federal policies areas under debate, including clean energy standards, carbon pricing programs and zero-emission vehicle standards.

Unco Federalism is bad – red states block federal climate initiativesGarrison & King 21 (Joey, White House correspondent for USA TODAY covering President Joe Biden. Ledyard, covers NASA and EPA at USA Today. 3-8-21 “12 Republican state attorneys general sue President Biden over climate change order” USA Today https://www.usatoday.com/story/news/politics/2021/03/08/republican-led-states-sue-president-joe-biden-over-climate-change-order/4635600001/ JO)Twelve states with Republican attorneys general Monday sued President Joe Biden over his first executive order aimed at climate change, alleging he lacked the constitutional authority to implement new rules about greenhouse gases. The federal lawsuit, led by Republican Attorney General Eric Schmitt of Missouri, argues Biden violated the separation of powers clause in the Constitution because Congress, not the president, has the power to regulate. On his first day in the White House, Biden signed Executive Order 13990, directing federal agencies to calculate the "social cost" of greenhouse gas pollution by estimating "monetized damages" to inform future federal regulations. This includes changes in net agricultural productivity, human health, property damage from increased flood risk and the value of ecosystem services.But the 12 states that are plaintiffs say assigning such values is a "quintessentially legislative action that falls within Congress’ exclusive authority." They also say the economic ramifications of the order will be disastrous. "If the Executive Order stands, it will inflict hundreds of billions or trillions of dollars of damage to the U.S. economy for decades to come," the suit reads. "It will destroy jobs, stifle energy production, strangle America’s energy independence, suppress agriculture, deter innovation, and impoverish working families. It undermines the sovereignty of the States and tears at the fabric of liberty. Republican state attorneys general from Arkansas, Arizona, Indiana, Kansas, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee and Utah joined the suit. The White House and Department of Justice declined to comment on the suit. The complaint asks the court to issue an order that prohibits federal agencies from using the “social cost” estimates and to declare they are “arbitrary, capricious, unreasonable, and contrary to law,” among other relief.Executive Order 13990 also revoked the Keystone XL Pipeline permit and instructed the Interior Department to review the Trump's administration's decision to shrink the boundaries of national monuments. It was one of several early executive actions that Biden took to combat climate change during his first month in office.Orders that Biden signed Jan. 27 elevated climate change as a national security concern, committed to the goal of conserving at least 30% (an increase from 12%) of all federal land and water by 2030 and built on his economic policy agenda to direct federal agencies to "procure carbon pollution-free electricity and clean, zero-emission vehicles to create good-paying, union jobs and stimulate clean energy industries.Biden campaigned on being the most aggressive president on climate change, which he called "an existential threat." His goal is to decarbonize the U.S. power sector by 2035 on the way to reaching net-zero greenhouse gas emissions by 2050.

States on both sides of the issue have sued the federal government on climate change. Mostly red states sued to stop the Obama administration from implementing its Clean Power Plan aimed at slashing carbon emissions from coal-fired power plans. The U.S. Supreme Court upheld the challenge in 2015 and the program never took effect.

State primacy reduces commitment to climate regs and allows for corporate circumventionLivermore 17 (Michael, Associate Professor of Law, University of Virginia. 8-2-17 “Why shifting regulatory power to the states won’t improve the environment” https://theconversation.com/why-shifting-regulatory-power-to-the-states-wont-improve-the-environment-78245 JO)State experimentation may be the only way to break the gridlock on environmental issues that now overwhelms our national political institutions. However, without a broad mandate from the federal government to address urgent environmental problems, few red and purple states will follow California’s lead. In my view, giving too much power to the states will likely result in many states doing less, not more. What’s so great about the states?Politicians are happy to praise states’ rights, but they rarely say much about what federalism is supposed to accomplish. Granting more power to the states should not be an end unto itself. Rather, it’s a way to promote goals such as political responsiveness, experimentation and policy diversity. Many U.S. environmental laws include roles for states and the federal government to work cooperatively to achieve shared objectives. Often, this involves the federal government setting strict goals , with states taking the lead on implementation and enforcement. This careful balance of federal and state power has been implemented by Republican and Democratic administrations alike. In recent years, scholars have expanded on Justice Brandeis’ famous “laboratories of democracy” model of federalism with the notion of “democratic experimentation.” Brandeis’ core insight, updated for contemporary society, is that decentralization lets state and local governments experiment with different policies to generate information about what works and what doesn’t. Other states and the national government can use those insights to generate better policy outcomes.But as I have shown in recent work, there is no guarantee that state experimentation will produce neutral technical information. It also can generate political information that can be put to good or bad uses. For example, state experimentation with pollution controls may allow regulators to identify cheap ways to reduce emissions. On the other hand,

big polluters may use the opportunity to figure out clever ways to avoid their obligations. This happened in the 1970s and ‘80’s after the Clean Air Act was enacted. State experimentation allowed polluters to learn that by building very tall smokestacks at electric power plants, they could send pollution downwind while keeping

local officials happy. Experimentation resulted in information on how to push pollution around instead of cleaning it up , and utilities in midwest states used this knowledge to shift pollutants to states downwind in the Northeast. An elusive balanceIt makes rhetorical sense for the Trump administration to wrap its environmental agenda in federalism. Air and water pollution are unpopular, and conservation groups have called out Trump’s policies and budget for undoing “environmental safeguards.”Reframing deregulation as federalism turns the issue into a debate about how to allocate power between the national government and the states. But striking the right balance between federal and state power requires careful attention to context and the costs and benefits of decentralization.For example, Pruitt has formally proposed to rescind the Clean Water Rule, an Obama administration regulation that clarifies the jurisdiction of EPA and the Army Corps of Engineers to regulate smaller water bodies and wetlands under the Clean Water Act. One might think that without EPA on the beat, states will take a more central role in water pollution control. But in fact, many states have passed laws banning any clean water regulation that is more stringent

than federal standards. Shifting responsibility in this area back to states will create a policy vacuum instead of space for experimentation. Less creativity, not more There is even more need for a federal role in addressing problems that have global impacts, such as climate change. Once greenhouse gases are emitted, they do not just cause warming in the place where they were released. Instead, they mix in the atmosphere and contribute to climate change around the world. This means that no given jurisdiction pays the full cost of its emissions. Instead, in the language of economics, these impacts are externalities that are felt elsewhere. This is why a global agreement is needed to effectively slow climate change. The United States has already withdrawn from the Paris climate accord. If we pull back on regulating greenhouse gases nationally as well, many states will have little incentive to take action. Under the Obama administration’s Clean Power Plan, which Pruitt is reviewing and has told states to ignore, every state was required to figure out how to meet a carbon reduction goal. However, it did not dictate how they should do it.This approach would have produced valuable political information from red and purple states, which tend to rely more heavily than blue states on fossil fuels. By forcing Republican leaders to craft state climate policies and sell them to their constituents, the Clean Power Plan promoted what I consider truly useful experimentation that could have helped break the national gridlock on climate policy. Now, without a prod from the federal government, those experiments are unlikely to occur . EPA’s retreat will mean that we have less, not more, insight into smart and politically viable ways of cutting carbon emissions.Any regulation can be improved on, and the Trump administration could have risen to that challenge. Instead, the leadership at EPA is abdicating the agency’s traditional leadership role. In doing so, it is promoting stagnation and backsliding rather than innovation.

Turn - State climate policy exacerbates warming with carbon havens – race to the bottomDiSorbo 20 (Jack Buckley, University of Houston Law Center J.D. Candidate 2020. Law clerk to the Hon. Charles Eskridge III and the Hon. Jennifer Walker Elrod. 6-8-20 “The Limitations of State and Local Climate Policies” Vol. 57, Issue 5, 2020 Houston Law Review https://houstonlawreview.org/article/12953-the-limitations-of-state-and-local-climate-policies JO)Climate change is more difficult to quantify because short-term effects are nearly impossible to predict. In the long run, climate change will, among other effects, cause more severe storms, reduce the global water supply, and reduce the productivity of agriculture.[44] Though it may be possible to quantify the long-term cost of responding to climate change, the cost of incremental pollution is unknown.[45] Climate change, therefore, is more difficult to internalize than other environmental problems because the scope of its harm is uncertain. As a result, state and local governments are uniquely unable to weigh costs and benefits.2. Regional Actions, Regional Benefits, and the Traditional Collective Action Problem.As to climate change, state and local policies do not have state and local effects. There are some exceptions to this general rule that I do not discuss here.[46] As to ozone pollution, a state or city can regulate the emission of ozone within its jurisdiction and reduce the associated health effects.[47] A regional decrease in carbon emissions , however, does not cause a regional climate improvement .[48] A state that

reduces ozone concentration by 50% can expect to see a 50% reduction in ozone-related health conditions (these numbers are purely demonstrative). By contrast, a state that reduces carbon emissions by 50% cannot expect a 50% reduction in negative effects related to climate change.

Climate change ’s physical properties exacerbate what is already a race to the bottom .[49] Consider the regulation of sulfur dioxide (SO2). When power plants burn coal, the process produces SO2. Virginia, wanting to protect its citizens from the harmful effects of SO2, might implement regulations that limit SO2 emissions. But if these limitations become too financially restrictive, the energy producer may move to a more business-friendly state like West Virginia. West Virginia’s policy forces Virginia to choose between cleaner air or cheaper energy.[50]Climate change presents the same problem, but worse. The areas that are most susceptible to the negative effects of climate change—coastland, for example—may not always correspond to the regions that most contribute to American emissions.[51] Coastal states and other similarly disadvantaged states, therefore, have little incentive to enact strong emissions regulations if they cannot count on the rest of the nation to do so. In addition, because state economies begin from different “starting points,” a state that enacts strong climate policies does not always account for less carbon emissions.[52] In short, state and local governments

cannot guarantee climate improvements through regulation because their actions will not directly affect their jurisdictions and the actions of other states are unclear.

They fail at regulating emissions – funding and non-uniformityDiSorbo 20 (Jack Buckley, University of Houston Law Center J.D. Candidate 2020. Law clerk to the Hon. Charles Eskridge III and the Hon. Jennifer Walker Elrod. 6-8-20 “The Limitations of State and Local Climate Policies” Vol. 57, Issue 5, 2020 Houston Law Review https://houstonlawreview.org/article/12953-the-limitations-of-state-and-local-climate-policies JO)The role of states and other subnational organizations in regulating carbon emissions from the power generation sector is simultaneously integral and limited. Integral because under the Clean Air Act, the states “have the primary responsibility” for implementing the standards established by the federal government.[76] States must submit State Implementation Plans (SIPs) that explain how they will meet federal obligations. State governments therefore can exert great influence on the regulation of carbon emissions in the efficient implementation of federal standards. States are, of course, free to involve local governments and business in their regulatory schemes.However, several factors limit the effectiveness of state and local policies. First, state and local governments have less resources than the federal government. The EPA’s budget in 2018 was $5.655 billion whereas the Texas Commission on Environmental Quality’s (TCEQ) budget for the same year was $374.2 million.[77] Thus, the federal government can hire more prosecutors to enforce its policies, can spend more money to research policy, and generally has more capacity to regulate than do state governments. This difference is clearly not limited to climate policies. Second, state and local governments face a strong collective action problem when they choose to regulate above the federal requirements. If a state or local government implements stringent carbon regulations, they run the risk that the affected companies will reduce operations or leave altogether.[78] Though cleaner methods of energy production continue to improve, states and cities may continue to rely on traditional energy generation because it produces cheaper energy and more of it.[79]Despite these limits, some state and local governments have enacted supplementary regulations. Oregon, Washington, and California each utilize some form of direct carbon regulation within the power generation sector.[80] Nonetheless, state and local governments struggle to uniformly regulate power generation sector emissions because it cannot be expected that every state will choose to regulate carbon emissions as these three states have. Without uniformity, we are left with the same race to the bottom. PSD, Title V, and NSPS are not the only ways to address carbon emissions from the power generator sector. Congress could pass a cap-and-trade program for carbon emissions like the one the Clean Air Act utilizes for SO2 or implement a carbon tax.[81] It could also encourage the development of economical renewable energy.[82] Whatever the solution, it is clear that a federal remedy is necessary. Only federal remedies can avoid the collective action problem raised by purely state and local solutions.

They fail at industry regulation – fed action keyDiSorbo 20 (Jack Buckley, University of Houston Law Center J.D. Candidate 2020. Law clerk to the Hon. Charles Eskridge III and the Hon. Jennifer Walker Elrod. 6-8-20 “The Limitations of State and Local Climate Policies” Vol. 57, Issue 5, 2020 Houston Law Review https://houstonlawreview.org/article/12953-the-limitations-of-state-and-local-climate-policies JO)The industrial sector is composed of many independent subsectors. Whereas 98% of carbon emissions from the power generation sector come from coal and natural gas power plants, carbon emissions from the industrial sector come from the oil and gas, manufacturing, agriculture, mining, and construction industries.[83] These subsectors release carbon emissions by their ordinary use of electricity, their on-site combustion of fossil fuels to generate “electricity [or other] useful thermal output,” and as a byproduct of industrial processes such as the CO2 released by cement manufacturing or the CH4 emitted at waste sites.[84]The Clean Air Act regulates the industrial sector similarly to the power generation sector. PSD, Title V, and NSPS regulate the constituent facilities and technologies employed at those facilities.[85] For example, NSPS regulations require the installation of emissions control technology at crude oil and natural gas production facilities.[86] Because industrial sector regulations are similar to power generation sector regulations, state and local industrial regulations are similarly limited. Industry may reduce operations or leave the region in response to laws that require sharp decreases in emissions.[87] To address carbon emissions from the industrial sector, the federal government could implement industry-specific technology requirements.[88] Emissions based programs—like cap-and-trade—would also affect the industrial sector.[89]

Can’t solve - States neglect mobile source emissions DiSorbo 20 (Jack Buckley, University of Houston Law Center J.D. Candidate 2020. Law clerk to the Hon. Charles Eskridge III and the Hon. Jennifer Walker Elrod. 6-8-20 “The Limitations of State and Local Climate Policies” Vol. 57, Issue 5, 2020 Houston Law Review https://houstonlawreview.org/article/12953-the-limitations-of-state-and-local-climate-policies JO)The federal government is the primary regulator of mobile source carbon emissions.[90] The EPA sets emissions standards under Title II of the Clean Air Act, and the National Highway Traffic Safety Administration (NHTSA) sets fuel economy standards under the Energy Policy and Conservation Act (EPCA).[91] Emissions standards control the level of pollutants released into the air whereas fuel economy standards promote efficient use of fuel.[92] To manufacture or

market automobiles in the United States, businesses must show that the vehicles meet EPA and NHTSA’s requirements.[93]By design, state and local governments are mostly uninvolved in mobile source regulation. The Clean Air Act specifically prohibits states from adopting individual fuel emissions standards.[94] By virtue of its first-in-time fuel economy program, California may receive special waivers from this prohibition. Other states may adopt California’s standards.[95] But the EPA may revoke these waivers if it finds that the conditions that allowed the waiver are no longer present.[96] Indeed, President Trump’s EPA has withdrawn the waiver for California’s 2013 “Advanced Clean Car” regulations.[97]This legal framework shows that states do not have meaningful methods of regulating mobile source carbon emissions. States may join California’s more stringent standard, but this waiver is subject to revocation. At present, fourteen states have adopted California’s policy either in whole or in part.[98] As of 2017, these states account for 31.6% of American transportation sector consumption.[99]

If the United States is to reduce transpo rtation sector emissions, Congress must enact a federal policy because state and local policies are limited. One example is President Obama’s national fuel efficiency policy.[100] Under this policy, the EPA and NHTSA jointly issued regulations increasing emissions and fuel economy standards on passenger vehicles and light trucks.[101] The EPA projected the plan to reduce GHG emissions by 2 billion metric tons over the lifetime of the vehicles affected.[102] Under the Trump Administration, the EPA and NHTSA replaced president Obama’s policy with the less stringent Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule.[103] The primary alternative to altering fuel economy requirements is encouraging the development of public transit infrastructure and low-emission vehicles.

Don’t conflate piecemeal success with an alternative to federal control – Federal primacy is key to effective mitigation DiSorbo 20 (Jack Buckley, University of Houston Law Center J.D. Candidate 2020. Law clerk to the Hon. Charles Eskridge III and the Hon. Jennifer Walker Elrod. 6-8-20 “The Limitations of State and Local Climate Policies” Vol. 57, Issue 5, 2020 Houston Law Review https://houstonlawreview.org/article/12953-the-limitations-of-state-and-local-climate-policies JO)In theory, state and local government is better suited to implement small-scale programs that are tailored to local communities.[149] Statewide cap-and-trade programs, citywide initiatives to reduce transportation-sector emissions, and efforts by businesses to increase the energy efficiency of their buildings are all perfect examples of the traditional role of state and local government. However, climate science, economic interests, and our federal system of government limit the effectiveness of subnational policies. Under the current system of American

environmental law, the federal government simply has the power to control a much larger share of American carbon emissions than state and local governments. This conclusion applies to multiple policy approaches. On one hand, it may be necessary to pursue an aggressive reduction in carbon emissions over the next thirty years to avoid the onset of severely debilitating natural consequences. On the other, it may be optimal to pursue incremental adjustments to preserve the competitiveness of the

American economy and ensure the cooperation of China, India, and other countries that emit large volumes of greenhouse gas emissions. In either case, a climate policy that centers on state and local initiatives and ignores federal programs will be inefficient and limited. Are the actions of the states, cities, and businesses that pursue climate policies impactful and praiseworthy? Yes. Can, as these organizations claim, state and local climate policies cut carbon emissions on par with the goal laid out in the United States’ NDC? No.