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15 Duke Envtl. L. & Pol'y F. 105 (2004-2005)
Obstacles to the Devolution of Environmental Protection: States' Self-Imposed Limitations on Rulemaking

handle is hein.journals/delp15 and id is 111 raw text is: OBSTACLES TO THE DEVOLUTION OF ENVIRONMENTAL PROTECTION: STATES' SELF-IMPOSED LIMITATIONS ON RULEMAKING ANDREW HECHTt ABSTRACT Federal decision makers considering a policy of devolving the respon- sibility for environmental protection to the states need to consider two kinds of limitations that states impose on their own rulemaking powers. No more stringent rules prohibit the state from imposing regulations that are more stringent than counterpart federal regulations; Private property rights acts discourage regulations that limit an owner's use of private prop- erty. This Note surveys twenty-seven no more stringent rules and twenty private property rights acts. It analyzes the extent to which they inhibit states from filling gaps caused by the rollback of federal authority. Each set of state rules is then ranked on a relative stringency scale. A case study analysis is used to show how a rollback in federal Clean Water Act author- ity might affect the assumption of responsibility to provide environmental protection to wetlands. TABLE OF CONTENTS I. Introduction .......................................................................................... 106 II. State Responses to Devolution ............................................................. 109 A . D ebating D evolution ................................................................... 109 B. No M ore Stringent Rules ......................................................... 112 C. Private Property Rights Acts ....................................................... 113 1I1. Taxonomy of No More Stringent Rules .......................................... 115 A. Distinct Features of No More Stringent Rules ........................ 117 1. Affects Quantifiable Limits ................................................ 117 2. Jurisdictional Ties to Federal Regulation ............................ 118 3. Federal Silence Preempts .................................................... 120 t JD/MEM candidate at the Duke University School of Law and the Nicholas School of the En- vironment and Earth Sciences. Thank you to my advisor, Dr. Martin Smith, and to Ms. Donna Down- ing. Their guidance has been invaluable over the course of this project. This Note was inspired by ex- periences gained at the U.S. Environmental Protection Agency during the summer of 2003, funded by a generous grant from the Environmental Careers Organization.