Can "New Federalism" really work in implementing federal environmental statutes? The guidelines for this paper, in suggesting that it should be "Hamiltonian, articulating the proper boundaries for a strong federal role in environmental control," infer that my answer should be no. Presumably one who is employed by and represents a national environmental group in these times should have mixed feelings about federal environmental regulation, but over the last decade, it is surely true we have championed federal regulatory authority, and I suppose that is why I have been chosen to present this side of a complex question. Rather than argue from a brief, however, I have instead chosen to articulate my own views, which I hope are at least sufficiently balanced to reflect my uncertainty, and to avoid my being challenged to a duel by either a violent state's rightist or a nationalist.

Introduction

To begin with, it is necessary to define what I understand as the New Federalism. There would seem to be at least two meanings. One is simply a policy promoting less regulation from all levels of government, and greater reliance upon the marketplace. The other is a policy advocating faster and more complete than hitherto delegation of federal regulatory authority to state and local governments for whatever use they wish to make of it. My primary focus here will be on the second meaning, since it makes more sense overall, although I will deal with the former too where it appears more appropriate.

In summary, it seems to me that there obviously should be a balance between federal and state power regarding environmental regulation. Virtually every environmental statute already so provides. (While there is also a place for local authority in this regard, for the most part it is and should remain less important than the former two.) The model I propose to discuss in this paper has two elements: a federal framework for implementing regulation which sets forth the necessary basic standards under the particular act involved, and subsequent state 'fine tuning' and enforcement (with continuing federal oversight) after a state has demonstrated it is ready and able to do so.

Premises

The thesis just articulated is perhaps sufficiently broad as not to create much controversy. It is surprising, in fact, how many points of general agreement in this area there are likely to be among thoughtful persons. For example, at the federal level, most experienced observers will agree that once federal legislation is passed, it is up to the federal government initially to establish a broad regulatory framework, ever alert, however, to the need to build in enough flexibility so as to take account of relevant state and local conditions. (Hence provisions for variances, extensions, suspensions, and delayed compliance orders are usually [12 ELR 15096] necessary.) While federal legislation should set the floor, or basic standards, states should be able to add additional conditions as may be necessary for their own purposes, providing they are not unduly burdensome. The federal government should retain ultimate authority overall, and have primary responsibility where interstate or international problems are involved.

So too regarding regulatory authority of state and local governments, there are general points of agreement. Over the course of time, authority for implementation and enforcement should be delegated to the states in partnership with the federal government, to create broad political support for what the statutes are supposed to accomplish, while at the same time providing the necessary flexibility for relevant local needs. Obviously, the federal government cannot duplicate in sheer numbers the enforcement capability of the states, or the knowledgeability about local conditions, so enforcement must ultimately be primarily a state responsibility. Most who examine the current financial difficulties of state and local governments will agree that there should be some financial assistance provided by the federal government during any transition period, and that research and development should continue largely in the federal sphere to avoid duplication, and because of its likely low priority in state budgets.

Just as there is, I sense, general agreement among most commentators regarding the above, so too there is general agreement on regulatory evils to be avoided. Most would agree regarding federal regulatory authority that inflexibility is anathema, as is inhibition of innovation. Where the costs can be clearly demonstrated to outweigh the benefits, there should be no federal regulations. No one likes a heavy-handed federal bureaucracy, and few would support cumbersome or expensive regulations based very largely on eliminating a purely speculative risk.

Comparably at the state level, any regulatory situation susceptible to local blackmail by a particular industry, an important economic and political power in the state, should be avoided. Regulatory balkanization promoting forum shopping by industries among the states should be discouraged. Most would agree that where states fail to enforce federal statutes and implementing regulations, they should lose the authority to do so. State and local governments can be as arrogantly unresponsive as the federal government, and certainly as incompetent. Quality control is therefore important.

Problems of Federalism

If we start from these commonly-shared shared premises, where do the problems arise? The key questions, of course, are the proper federal/state balance at any point over a given time frame, as well as what that time frame should be, and the degree of regulation imposed of whoever's creation. Even here, there are some generally accepted guiding principles. These include the doctrine of preemption, and defined areas of traditional state sovereignty (the Tenth Amendment). In the area of environmental regulation as elsewhere, the power of the federal government where exercised is relatively greater than that of a state. Obviously the treaty power has to be exercised by the federal government. To the extent that environmental problems are increasingly international in scope, this leaves ultimate responsibility to the federal government where it uses treaties to solve these problems. So, too, the commerce clause constitutes a restriction on state regulatory and enforcement powers, which cannot "unduly" burden interstate commerce. Other more specialized doctrines exist to support federal power, such as the West's doctrine of implied federal "reserved rights" to water for federal lands. These principles, however, are not likely to offer clear answers in most difficult cases.

The Theses

Against this background of the problems and principles of Federalism, I propose the following theses for purposes of discussion: Most major environmental problems are interstate in nature. Federal statutes are required because generally states are either unable or unwilling to solve the particular environmental problem. Most major federal statutes or their revisions recognize the practical need for a degree of state delegation, varying by statute. This delegation, however, must proceed only as fast as the state is willing and able to take over the responsibility. Funding by the federal government is to some degree necessary during this period of transition. A significant residuum of regulatory authority must remain at the federal level. Some problems, however, defy delegation, and are by nature national. These include particularly setting health standards involving toxics (as opposed to implementing them), and some economic regulations where uniformity is critical. Strong technical support must be available to the federal government as it grapples with solutions to these problems. A residuum of regulatory authority at the federal level must remain as a deterrent to state inaction, and "reverter" provisions must be in place. Where the federal government owns the land, such as in much of the West, the primary regulations involved must necessarily be those of the federal government.

One of the worst mistakes that can be made by the federal government as regulator is to move too far, too fast in delegating authority to the states, municipalities, or the industry itself, under the guise of "deregulation". This is as likely to lead to a backlash in Congress as is failure to delegate to the states where appropriate, and also to result in lost ground in devising enforcement mechanisms, industrial uncertainty regarding its investment decisions, state inability to shoulder the sudden financial burden, little or no enforcement except where disasters arise, and low morale and credibility generally at all levels. Pragmatism rather than ideology must be the appropriate short-run working principle.

An even worse error for a federal regulator is to assume that industry self- regulation will be successful without passing at least first through a period of successful state regulation. Environmental statutes and regulations are necessary at all because externalities usually mean that the industrial polluter does not see the problem in the same light as the general public. Those who profit are frequently not the same as those who are hurt, at least to the same degree; private and public costs are not equal. Further, self- regulation is not likely to be successful in an economic sector where because of the gravity of the harm, it takes only one bad apple to spoil the barrel, and where mechanisms for setting and enforcing industry codes are embryonic or nonexistent.

Those who would point to the emerging 'free market system' alternative to a government command and control regulatory system still must admit that even here, government [12 ELR 15097] continues to be crucially important. In order to ensure that prices fully reflect the costs and benefits to the nation, adequately taking account of externalities and collective goods, it is government that must establish, encourage and umpire such an economic incentive system. Whether one is talking about subsidies, effluent charges, marketable rights, or bubbles, government his initially to set the basic rules and to minitor their implementation. Where uniform standards are desirable, federal involvement is inevitable; where experiementation and flexibility are more important, state authority should be emphasized. It would be naive, however, to suggest that these systems will ever be totally independent of government involvement.

The Theses Illustrated

I suspect that some who found themselves in general agreement with the broad principles articulated at the beginning of this paper have begun to find in the foregoing theses observations with which which they disagree. Let us therefore spend the rest of this paper testing the theses with examples to determine their truth or falsity.

(1) The first thesis is that most major environmental problem areas transcend state borders. As evidence of this proposition, I would cite problems like acid rain and smog, just to mention two in the area of air pollution. In the area of water pollution, both quality and quantity problems are interstate. Regarding water quality, we have problems of drinking water, contaminated with various toxics from up-stream or up-aquifer. So, too, we have increased salinity, as in the Colorado River, to harm the downriver users. As to quantity of supply, again the Colorado River Basin provides an excellent example of an interstate environmental problem. Toxic chemicals, too, illustrate the interstate nature of environmental problems. The mobility of PCBs and persistent pesticides is well known. The contamination of a Love Canal or Hopewell, Virginia has local effects, but also others far beyond the area in which the contamination occurs. While obviously there are some counter examples of strictly 'local' environmental problems, such as small wetland fills, in the aggregate even they constitute a national problem.

(2) The second thesis is that federal environmental statutes are required because the states have proven unable or unwilling to do the job on their own. Our discussion of the interstate nature of environmental problems above illustrates the inability of states to handle problems which might be affecting them. Unfortunately there are also abundant historic illustrations where states have been unwilling to address environmental problems, largely because of the economic/political strength of the offending industry, and/or the fact that the source state reaps the benefits while some other state suffers the harm. Even where the major damage is done in the state itself, such as with strip mining, there are copious examples where entrenched state economic powers have successfully resisted any meaningful regulatory activity. The predecessors of most of the federal air and water legislation we now have were state statutes and interstate compacts which simply did not work.

(3) The third thesis is that in fact virtually all major federal environmental statutes do of course recognize the practical need for federal delegation of some or all authority for implementation, although this varies by statute, and the timing and degree is left in the first instance to the federal agency. Illustrations are the Clean Air Act's state implementation plans, Section 208 of the Clean Water Act, the delegated responsibilities in the Resource Conservation and Recovery Act, and the provision for registration of pesticides for special state needs under the Federal Insecticide, Fungicide, and Rodenticide Act. Congress in writing environmental statutes has been aware of the need for ultimate primary responsibility for implementation to rest with the states. The pace of progress in federal delegation to the states is the key, however, and is a federal prerogative.

(4) The fourth thesis is that delegation of federal authority must proceed only as fast as the states are willing and able to take on this responsibility, and that during the transition time, federal funding must continue, in order to ease the process. Building municipal waste treatment plants provides an excellent example of this observation. So, too, does the bubble policy under the Clean Air Act. Where a state such as New Jersey has shown itself willing and able to exercise such authority, the power should be delegated by the federal government, and has been. Where a state is recalcitrant or understaffed, however, it is not yet ready for this responsibility. As illustration, under the federal Pesticide Act, delegation of enforcement responsibility to a state with a separate environmental protection agency might be felt to be more appropriate than to a state where the state agriculture department is the enforcer, suffering a built-in conflict of interest.

Federal delegation to states too far, too fast creates a worse situation than if there had been no delegation at all. There are many examples. Recently, witnesses from a number of states testified before the Senate Environment and Public Works Committee that state and local governments cannot adequately manage current environmental problems given the concurrent cuts in federal grants in aid, as well as the suddenness and enormity of the delegation. While for political reasons states may posture that they wish to regain federal environmental regulatory authority quickly, as in the strip mining area, those state officials actually charged with enforcement recognize that premature delegation will in essence lead to a severe cutback in enforcement. This reality is behind adverse congressional reaction to some of the current major cuts in federal regulatory personnel and monies at the same time as federal grants to the states are also reduced, and delegated responsibilities increased. Indeed, even regulated industries are unhappy with such a situation because of the uncertainty created and the fear of a subsequent federal recentry into the field with new standards sometime in the future.

Too rapid "deregulation" and delegation are ideological and paternal in nature rather than pragmatic. This is illustrated by the fact that sometimes the supposed beneficiaries, the regulated industries, do not feel 'benefitted', and may well oppose what is being done purportedly on their behalf. Recent examples were the need for the Environmental Protection Agency to retreat in the face of industrial as well as environmental opposition to lifting the ban on landfill disposal of liquid hazardous waste. Yet another example is the coolness with which elements of the petroleum industry greeted Secretary Watt's initial plans for massive Outer Continental Shelf (OCS) leasing beyond the industry's ability to develop or to justify such an effort.

In short, there is extreme variation in the willingness and ability of different states to implement different sections of different statutes. The only possible rule of thumb is pragmatism, [12 ELR 15098] and assessments by the federal regulatory authority as to when such delegation is appropriate, based on the facts. Simply delegating federal authority without heed to whether a state is willing or able to exercise it, particularly if it is not accompanied by some transition funding, virtually assures statutory nonenforcement. It is all well and good to argue that states should act as fifty 'laboratories' so as to be able to implement in their own way the requirements of a statute, but this presupposes the will and the means. Otherwise, premature delegation based on ideology alone simply disguises a decision by the federal government that a particular statute will not be enforced.

(5) The fifth thesis is that whatever the rate and degree of delegation, a significant residuum of regulatory authority and enforcement capacity must remain at the federal level. Taking, for example, health standards, it is clear that the basic threat posed by toxic chemicals does not differ according to geographical region since humans are biologically the same wherever they live and generally toxics do not change their chemical characteristics by locale. Therefore, standards such as those set under Section 112 of the Clean Air Act or Section 307 of the Clean Water Act are by their very nature federal. (Reflecting Congress's recognition that the toxics problem is essentially federal, the Toxic Substances Control Act perhaps alone among environmental statutes does not include extensive delegation provisions.) Further, certain safety standards, set by the Occupational Safety and Health Administration or the Consumer Products Safety Commission, also are by nature national because the type of threat posed and human vulnerability do not vary geographically. Safety standards for lawnmowers of chainsaws, or questions of occupational exposure, are national in nature, and if states were permitted to set such primary standards the resulting economic patchwork would not only "burden commerce" to industry's as well as the public detriment, but might well be influenced by economic and employment concerns rather than by the primary purpose of preserving human safety. Other examples of comparable regulations necessarily "federal in nature" include those on nuclear waste disposal and outer coastal shelf drilling. This is not to say states should not have input, but only that the basic decision as to what constitutes a cost-effective regulation for environmental questions in this category is most appropriately made at the federal level so as not to require wasteful duplication of expertise within each state, to avoid economic balkanization, and to give a general federal patina of legitimacy to matters which affect humans equally wherever they are. This thesis also suggests that strong technical support must be available to the federal government as it grapples with solutions to problems in these areas.

There are other arguments to support the thesis that it is important to have a significant residuum of regulatory power reside with the federal government. For example, states are encouraged to do their job, or their power will rever to the federal government. As stated before, this is comparable to a reverter clause in a contract. (Admittedly, however, there is great political difficulty in taking back federal authority once delegated to a state, so that this "reverter deterrent" may in practical terms not amount to much.) Yet another reason why a significant residuum of regulatory authority must remain at the federal level is the technology-forcing motivation behind certain regulations. Technology-forcing is most appropriately done at the national, rather than the state, level, since technology-forcing by a state may simple drive an industry somewhere else. Lastly, we have already observed the fact that where the federal government owns the land, such as in the West, it must retain the ultimate authority over use of such public property. Questions of leasing wilderness, forest management, grazing, and management of national parks and national wildlife refuges are most appropriately left at the federal level, albeit with an opportunity for limited local modification, as under the Taylor Grazing Act, or regarding hunting laws on federal lands.

(6) There are many illustrations of the sixth thesis: that industry self- regulation is never more than a partial answer to the regulatory dilemma. The major rationale for environmental regulation is contained in the concept of externalities: those who profit are not necessarily those who suffer the cost. Or, where the perception is that the good (such as air or water) is common, and that unless a particular individual takes as much as possible, someone else will, the "common" suffers. Problems of unequal economic power, plus the lack of mechanisms for industries to be able to regulate effectively all of their members, means that it is necessary to have only a few competitors on the margin who are cost cutters in order to given an entire industry a black eye. This is particularly true in a depressed economy such as the present, where the specious argument of jobs before clean-up is frequently used to divert attention from more significant economic ills. Whether in the area of strip mining, setting lead standards for gasoline, or filing Section 404 permits for the filling of wetlands, self-regulation by industry or individuals is likely to result in very short-sighted decisions which when aggregated ultimately harm the country as a whole.

As has already been pointed out, it is no answer—at least for purposes of this discussion—to propose an alternative system of regulation stressing economic incentives for environmental protection rather than command and control regulations. Even with economic incentives it is up to government to ensure that prices fully reflect the costs and benefits to society, and to set the ground rules for alternative approaches to command and control regulations so that the net result is close to the same for a system based on economic incentives. Subsidies, effluent charges, marketable permits, bubbles, and the like require a government hand ready to balance one or the other side of the scale. In other words, the system will not work by itself without an arbiter.

Towards a Partial Answer: Short-Term Pragmatic Delegation and Long-Term Federal Planning

What then is the "proper approach" to environmental regulations? I believe pragmatism is the only answer in the short run. That is, to delegate regulatory authority when and where possible, within practical limits, but not too far, too fast. Federal standard-setting authority should be retained, particularly in the area of safety and health as well as in enforcement capability to serve as a deterrent to prevent the states letting up the pressure. Federal money should be available to the states during the period of transition of primary authority, to serve as a carrot, and to overcome the very real political and economic problems that many states have initially in setting up and funding an adequate [12 ELR 15099] environmental regulatory and enforcement system. The federal government as well as the states must maintain open communications with all elements not only of the regulated industry, but also of the society at large to enable it to gather as much relevant information as is possible in our most complex regulatory system. Cost/benefit analysis should be seen as a useful tool, not as an end in itself, and the shortcomings of such analysis recognized in areas where it is difficult to quantify risks and benefits.

In the long run, pragmatism alone is insufficient. There, careful planning is essential. Currently this is perhaps the major failing of the American regulatory system. In comparison with an economy such as Japan's, where industry, the government, and other sections of the society participate in long-range planning and priority-setting exercises, in this system pragmatism is the decisional mode of choice both in the short and in the long run. There is an urgent need in the federal and state governments currently to be able to plan for the long run. Obviously, in the final analysis this is a federal responsibility, albeit in partnership with the states, among others. This is yet another reason why a residuum of regulatory planning authority must remain in the federal government. Global 2000 issues are complex and intractable, but unless the federal government starts planning mitigating policies now, answers may never come, or may come too late.

Whether "New Federalism" Works Depends Upon How it Is, Implemented

What then is my answer to the question posed initially, whether the "New Federalism" can really work? My answer, conveniently, is both yes and no. The critical factor is the time frame, and the degree of pragmatism used during the transition phase. New Federalism can work if the time frame we are considering is five to fifteen years, during which period there is careful planning and assistance by the federal government in transferring authority to the states. New Federalism will not work if it is viewed ideologically, however, as a policy whose results must be seen today or tomorrow at the latest. If the time frame for delegation is shortened to a few years of a particular Administration, and authority is simply delegated without thought to practical problems in order to gain short-run political advantage, then the policy will not work.

A recent study by the Natural Resources Defense Council found that most state environmental agencies predict a decline in protecting the public from air, water and toxic pollutant hazards and an inability to meet new responsibilities turned over to them by the current Administration because delegation is going too far, too fast, with too little transition assistance. Of the forty-four states covered by the NRDC survey, all expected an overall reduction in resources in the coming year; thirty-four said they could not carry out additional responsibilities; and one and perhaps more in fact voluntarily returned responsibility for implementing at least one major statute to the federal government. In this form, New Federalism is simply a disingenuous way of saying that congressional mandates set forth in environmental statutes will not be implemented. This variation of "New Federalism" is not only a failure but a pernicious effort by the Executive Branch to usurp and negate congressional authority and the public's desire for environmental protection.

* * *

Post Script

Having now read the other papers prepared or referenced for this conference, I am reassured that the premises set forth in the body of my paper are widely shared. The rationales for federalism (or centralism), for example, are there discussed in many of the same terms as I have used: Federal statutes are regulations providing a framework and floor are valuable for coordination and consistency.¹ Interstate and international environmental problems especially require a federal approach to solutions.² Research and development is more efficiently produced and exchanged at the federal level than at the level of the fifty states.³ The inequalities of state resources and competition for industries and jobs should not be permitted to result in substitution of the inefficiencies of regulatory balkanization for present national integration.⁴ Disparities in effective representation and resources are likely to be less at the federal level, making regulators there less vulnerable to economic blackmail.⁵ Moral ideals are more saleable at the national level.⁶ The commerce power is a powerful tool to assist enforcement of environmental statutes at the federal level.⁷

Arguments in favor of decentralization and state primary authority are also offered in terms comparable to mine. State and local control maximizes flexibility, hence efficiency,⁸ and permits state experimentation.⁹ The state's police power allows it to reach activities traditionally local,¹⁰ such as land use patterns, while at the same time [12 ELR 15100] preserving traditions of local sovereignty and self-determination,¹¹ which in turn increases the likelihood of popular acceptance of "pyramids of sacrifice".¹²

So too there is reflected in others' papers much support for my theses: Most environmental problems transcend state borders, where federal involvement becomes essential.¹³ Federal environmental statutes are needed where states cannot or will not do the job.¹⁴ Delegation of much regulatory authority to the states is envisaged in virtually all federal environmental statutes, one reason being the practical realities of total available resources¹⁵ The pace and extent of federal delegation should be determined by whether states are willing and able to accept delegated federal responsibility, which in turn is partially dependent on availability of federal resources for states during the transition period¹⁶ to prevent state "turnbacks".¹⁷ A federal residuum of regulatory and enforcement oversight power is necessary if delegation of regulatory authority to states is not to result in de facto deregulation¹⁸. Continued federal involvement is also important both for practical and symbolic purposes.¹⁹ Because of externalities, a pure market approach and industry self regulation is not an adequate substitute for government regulation.²⁰ In the short run, the decision of whether either federal or state regulation should be primary must rest on a pragmatic assessment of the facts, since ideology alone cannot tell which will be the more efficient.²¹

The broad differences of opinion currently dividing the environmental community regarding the present Administration's stress on New Federalism, therefore, rest primarily upon differing interpretations of the facts. Is the current increased pace of federal delegation of environmental regulatory authority too far too fast, or have we underestimated the efficiency and capacity of the states and the good faith concern of industry?²² Will greatly reduced federal funding result in more efficient use of scarce resources by states with either the same or better enforcement of federal and state environmental laws at less cost,²³ or will less funding result in de facto deregulation and/or turnbacks?²⁴ Will the process of simplifying and streamlining at the federal level achieve the same results at reduced transaction cost (complexity, delay, etc.), or will it result in disregard for process and its purposes—better reasoned decisions with greater popular support because of a significant degree of public participation in their creation? Will stress on voluntary compliance produce a heightened sense of industry responsibility, or widespread cynicism and violation?

After reflection upon the papers prepared for this occasion and what I see of New Federalism as it has been applied to environmental statutes since completing my own paper, I am left with the following additional thoughts: Problems with federal regulation are usually couched in terms of overlap and contradiction, inflexbility, unnecessary complexity, and financial burden.²⁵ Regulations produced by fifty states can, however, alone or in the aggregate, create comparable or greater problems. The public wants a least-cost approach if one can be found, not a cure worse than the disease. Decisions on regulatory approach must be based upon pragmatic empiricism—analysis of facts. Senator Stafford summed up my growing concerns well in stating:

The value that has so far been placed on national efforts to protect the environment—including considerations of economic equity and regulatory efficiency—may be significantly reduced by diminished federal involvement. The danger, however, is not proposals for change. The danger is that we might make changes in individual statutes or programs on the basis of philosophical assumptions or predilections, without adequately debating the practical consequences of those changes.²⁶

If I have any quarrel with the Administration's "New Federalism" it is that it is an unproven ideology whose proponents bear the burden of proof in altering the status quo, but who to date have done remarkably little in the way of unbiased empirical fact-finding, being driven instead by an anti-federal ideology. Rather than simply assuming a priori that a federal insurance requirement for hazardous waste disposal sites is too costly, or that a ban on landfill disposal of drums of liquid hazardous waste is impractical, or that 'sagebrush rebels' will welcome federal sale of vast western federal land holdings, or that oil companies will enthusiastically support a greatly expanded and accelerated OCS leasing policy, would it not be preferable to hold hearings or otherwise solicit and assess the facts first, rather than after public outcry, political pressure, and/or court decisions result in the need for an embarrassing policy reversal? To paraphrase the sage: our present system is undesirable … until one examines the alternatives.

1. Daniel, The Reagan EPA's View: Establishing a Federal/State Balance, AMERICAN BAR ASSOCIATION, THE NEW FEDERALISM: TAKING STOCK at 22, 12 ELR 15088 (1982) (hereinafter cited as ABA, THE NEW FEDERALISM); Eichbaum, The States' View: How the Other Partner Feels, ABA, THE NEW FEDERALISM at 26, 27, 12 ELR 15092-93; Pedersen, A Comparative Study: The Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act, ABA, THE NEW FEDERALISM at 6, 12 ELR 15072.

2. SENATE COMM. ON ENVIR'T AND PUBLIC WORKS, FEDERAL-STATE RELATIONS IN TRANSITION: IMPLICATIONS FOR ENVIRONMENTAL LAW 33 (Report prepared by the Congressional Research Service, February 1982) (hereinafter cited as CRS Report); Daniel, supra note 1, at 22, 12 ELR 15088; Pedersen, supra note 1, at 5, 12 ELR 15071; Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 1196 YALE L. J. 1215 (1977) ("spill-overs").

3. CRS Report, supra note 2, at 40: Daniel, supra note 1, at 23, 12 ELR 15089; Eichbaum, supra note 1, at 27, 12 ELR 15093 ("monitoring system"); Stewart, supra note 2, at 1218.

4. CRS Report, supra note 2, at 43; Eichbaum, supra note 1, at 27, 12 ELR 15093; Pedersen, supra note 1, at 5, 12 ELR 15071; Strohbehn, A Counterpoint: Other Statutes, Other Issues, ABA, THE NEW FEDERALISM, supra note 1, at 11, 12 ELR 15077; Stewart, supra note 2, at 1212 ("transaction costs").

5. CRS Report, supra note 2, at 39, 42; Stewart, supra note 2, at 1213.

6. Stewart, supra note 2, at 1217.

7. Eichbaum, supra note 1, at 25, 12 ELR 15091; Stewart, id. at 1212.

8. CRS Report, supra note 2, at v; Eichbaum, supra note 1, at 25, 12 ELR 15091; Pedersen, supra note 1, at 13, 12 ELR 15069; Strohbehn, supra note 4, at 9, 10, 12 ELR 15075-76; Stewart, supra note 2, at 1210, 1219.

9. Strohbehn, supra note 4, at 10, 12 ELR 15076; Stewart, supra note 2, at 1200, 1210.

10. Eichbaum, supra note 1, at 25, 12 ELR 15091; Stewart, supra note 2, at 1217.

11. Strohbehn, supra note 4, at 9, 13, 14, 12 ELR 15075, 15079, 15080; Stewart, supra note 2, at 1207.

12. Stewart, supra note 2 at 1221.

13. Daniel, supra note 1, at 22, 12 ELR 15088; Eichbaum, supra note 1, at 27, 12 ELR 15093.

14. Daniel, supra note 1, at 22, 12 ELR 15088; Eichbaum, supra note 1, at 26, 12 ELR 15092; Pedersen, supra note 1, at 3, 12 ELR 15069; Stewart, supra note 2, at 1196.

15. CRS Report, supra note 2, at 86; Daniel, supra note 1, at 22, 24, 12 ELR 15088, 15090; Strohbehn, supra note 4, at 8, 12 ELR 15074.

16. CRS Report, supra note 2, at 30-35, 65-75, ("pleasure or pain"); Eichbaum, supra note 1, at 25, 12 ELR 15091 ("carrot and stick").

17. CRS Report, supra note 2, at 75.

18. Daniel, supra note 1, at 23, 12 ELR 15089.

19. Eichbaum, supra note 1, at 27, 12 ELR 15093.

20. Currie, State Pollution Statutes, 48 CHI. L. REV. 28 (1981); CRS Report, supra note 2, at 94; Strohbehn, supra note 4, at 11, 13, 12 ELR 15077, 15079; Stewart, supra note 2, at 1211.

21. Strohbehn, supra note 4, at 11, 13, 12 ELR 15077, 15079.

22. Daniel, supra note 1, at 25, 12 ELR 15091.

23. CRS Report, supra note 2, at 76, 77; Daniel, supra note 1, at 23, 12 ELR 15089.

24. CRS Report, supra note 2, at 78-86; Strohbehn, supra note 4, at 13, 12 ELR 15079.

25. CRS Report, supra note 2, at 51-56.

26. CRS Report, id. at iii.

12 ELR 15095 | Environmental Law Reporter | copyright © 1982 | All rights reserved