The concept of “zero-sum” derives from economics and game theory, but its political meaning is less technical and objective. In political parlance, zero-sum has come to stand for the idea that there will be winners and losers in every transaction. The Trump Administration has continually espoused zero-sum ideas about energy and the climate, although its zero-sum framing focuses more generally on pitting fossil fuels (winners) against clean energy (losers).

When the major pollution control laws were passed in the 1970s, there was growing consensus that federal environmental regulations were essential to the protection of human health and the environment. At that time, many feared that states would engage in a “race to the bottom,” setting lax environmental regulations to attract industry and economic growth. Political support for new federal environmental regulation has since changed, with many states challenging such regulations as abuses of federal power.

In game theory, “zero-sum” means that a person may gain only at the expense of another person losing. Two-person games, such as chess and checkers, exemplify this win/loss dichotomy. Transported to economics, the idea of zero-sum similarly means that one party must lose for another to win. But in broad, multi-faceted policy contexts, such as the evolution of the energy industry in the United States, this winner/loser paradigm is particularly unhelpful and can lead to short-sighted and dangerous consequences.

Over the past three decades, Arctic sea ice has declined by more than 95%, paving the way for increased shipping activity along sea routes that were previously passable only by powerful icebreakers. This increased shipping activity has the potential to adversely impact marine life, increase local pollution levels, speed up the melting of ice sheets, and severely damage the Arctic ecosystem.

Scientists have found that the planet is hurtling toward a mass extinction of insects. Insects are necessary from an agricultural standpoint because they are the pollinators that farmers need in order to grow crops. However, pesticide and fertilizer (agrochemical) use is a significant factor in the steep decline of insect populations. Farmers are famously resistant to regulation, and agrochemical use is a largely unregulated area. However, farms contribute a significant amount of air and water pollution, especially through agrochemical use.

Federal jurisdiction over wetlands was muddied by the U.S. Supreme Court’s 2006 decision in Rapanos v. United States, a fractured 4-1-4 ruling with no clear majority. The Trump Administration is relying on Justice Scalia’s plurality opinion as the basis for amending the regulatory “waters of the United States” (WOTUS) definition, which could remove federal protections for many wetlands currently regulated under the Clean Water Act. States and localities are struggling with how to update and clarify their own wetland-related regulations in light of these everevolving developments.

This Article explains that the conventional view of agency behavior—following the specific direction of the U.S. Congress or the president and using notice-and-comment rulemaking or adjudication processes—does not capture how public agencies and private entities develop innovative regulatory strategies and earn regulatory authority as a result. In particular, this Article explains how governmental agencies like the U.S.

For more than a century, energy rate setting has been used to promote public good and redistributive goals, akin to general financial taxation. Various non-tax subsidies in customer energy rates have enormous untapped potential for promoting low-carbon sources of energy, while also balancing broader economic and social welfare goals. This Article argues that, even though a carbon tax remains politically elusive, “carbon taxation by regulation” has begun to flourish as a way of financing carbon reduction.

Do-It-Yourself biology, 3D printing, and the sharing economy are equipping ordinary people with new powers to shape their biological, physical, and social environments. This phenomenon of distributed innovation is yielding new goods and services, greater economic productivity, and new opportunities for fulfillment. Distributed innovation also brings new environmental, health, and security risks that demand oversight, yet conventional government regulation may be poorly suited to address these risks.

Cities often test the existing limits of their regulatory authority in areas like environmental protection, labor and employment, and immigration. The last few years witnessed an explosion of preemptive state legislation attacking, challenging, and overriding municipal ordinances across a wide range of policy areas. But this hostility to city government is not new. In 1915, one professor observed that “the relations of states to metropolitan cities in this country is ‘a history of repeated injuries’ .  .  .