Last spring I presented a paper at the NYU Environmental Law Journal Symposium on State Roles in U.S. Environmental Law and Policy. I argued that current environmental protection efforts are plagued by "jurisdictional mismatch." The federal government focuses disproportionately on matters properly left in state or local hands, while neglecting areas in which the federal government has a comparative advantage. As a result, states reduce their efforts on state and local matters and increasingly involve themselves in matters of federal concern. This mismatch undermines effective environmental protection of all types -- whether one advocates traditional regulation, market instruments, or property-based strategies. A draft of the paper is now posted on SSRN and the abstract is below.

Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. At the same time, state intervention seeps into areas where a dominant federal role would be more defensible. This jurisdictional mismatch produces sub-optimal levels of environmental protection, wastes regulatory resources, discourages innovation, and inhibits the adoption and evolution of more effective environmental protection measures. Environmental protections would be more successful were responsibility divided between the federal and state governments in a more justifiable manner. To address the current mismatch, the federal government should reorient its efforts toward those areas in which the federal government possesses an institutional advantage, due to economies of scale, or where state and local governments are incapable of addressing environmental problems, such as where there are substantial interstate spillovers.