Jonathan Adler on Federalism and Environmental Law
On this episode of Free Range, Mike Livermore speaks with Jonathan Adler, a law professor at Case Western who writes on environmental law, federalism, and regulation. In 2020, Brookings Institution Press published Adler’s edited Marijuana Federalism: Uncle Sam and Mary Jane.
Episode is an appropriate teaching tool for but not limited to the following topics & courses: government, environmental policy
Discussion Questions
- What does Adler argue are some key benefits of decentralizing environmental policymaking to the states? Do you find these arguments convincing?
- How does Adler characterize past skepticism of state environmental policymaking? Has the landscape changed over time?
- What are some complications around using state policy variation for experimental purposes, according to Livermore? How does Adler respond?
- How does bottom-up policy discovery work, according to Adler? Does this match with environmental policy history?
- Why have states focused more on climate policy innovation than other areas, in Adler’s view? Do you agree with his reasoning?
- What’s the difference between federal common law displacement and state law preemption, according to Adler? Why does this matter?
- How does Adler characterize the Second Circuit’s ruling on municipalities’ climate lawsuits? Where does he believe the court erred?
- What’s Adler’s view on centralizing authority around environmental justice versus other policy areas? When does he believe federal intervention is justified?
- How might greater localism be facilitated as a policy matter, even if current law poses barriers? What benefits might result?
- Why does Adler believe federalism could help depolarize environmental policy debates? Do you find this argument convincing?
- How might bipartisan cooperation emerge around issues like interstate water pollution, according to Adler? Do you see openings for this?
- What new perspectives on environmental federalism did you gain from this discussion? How might they inform your thinking?
Additional Readings
- Jonathan H. Adler, Jurisdictional Mismatch in Environmental Federalism, 14 New York University Environmental Law Journal 130 (2005).
- Jonathan H. Adler, When is Two a Crowd? The Impact of Federal Action on State Environmental Regulation, 31 Harvard Envt’l Law Review 66-114 (2006).
- Jonathan H. Adler, The Legal and Administrative Risks of Climate Regulation, 51 Environmental Law Reporter 10485 (2021).
- Jonathan H. Adler, Hothouse Flowers: The Vices and Virtues of Climate Federalism, 17 Temple Political & Civil Rights Law Review 443 (2008).
- Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, Minnesota Law Review (1997).
- Denise A. Grab & Michael A. Livermore, Environmental Federalism in a Dark Time, 79 Ohio State Law Journal, 667–684 (2018).
- Astor, Maggie. “As Federal Climate-Fighting Tools Are Taken Away, Cities and States Step Up,” New York Times (Jul. 1, 2022).
- Cale Jaffe, Environmental Federalism as Forum Shopping, 44 Wm. & Mary Envtl. L. & Pol’y Rev. 669 (2020).
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