When Is Two a Crowd? The Impact of Federal Action on State Environmental Regulation


This article seeks to identify the ways in which federal actions can influence state regulatory choices in the context of environmental policy. The federal government may directly influence state policy choices by preempting state policies or by inducing state cooperation through the use of various incentives and penalties for state action. The federal government may indirectly, and perhaps unintentionally, influence state policy choices as well. Federal policies may encourage greater state regulation by reducing the costs of initiating regulatory action or by placing issues on state policy agendas. Federal regulation may also discourage or even “crowd-out” state-level regulatory action by reducing the net benefits of state-level initiatives. The potential for federal regulation to have both positive and negative indirect effects on state regulatory choices suggests that increases in federal regulation can alternatively enhance or reduce state regulatory activity and may, in some instances, even result in a net reduction of regulatory protection for environmental resources. Such potential effects are largely ignored in environmental policy discussions, and warrant subsequent empirical study. While this paper focuses on environmental regulation, the overall framework should be applicable to other regulatory contexts.


Administrative Law | Environmental Law | Law and Economics | Natural Resources Law | Public Law and Legal Theory

Date of this Version

May 2006