A Short Reply to Rebecca Nelson’s Post 'Federalism and Environmental Frontiers'

Federica Cittadino

Institute for Comparative Federalism, Eurac Research

I wish to thank Rebecca Nelson for her inspiring post that really stretches the borders of scholarly debate on environmental federalism by casting new “federal” light on problems that are discussed generally by environmental lawyers. Some of my current research projects can be located in, or wish to contribute to, the areas that Rebecca has aptly identified as part of the new federal research. In particular, there are three elements raised in her post on which I wish to comment.

The first element that I particularly appreciate is the fact that Rebecca’s research agenda goes beyond the classical debates concerning the correct allocation of environmental powers that has drawn the interest of federal scholars for the last thirty years. The main underlying question used to be: on the basis of which criteria should environmental powers be allocated among different government levels? This question assumed that there exists a coherent and well-identifiable rationale behind the division of environmental powers. Rebecca’s focus on cumulative environmental effects instead brings to the fore the importance of assessing the effectiveness of environmental outcomes (and of setting up coordinated institutional arrangements that may effectively address complex environmental problems). Although Rebecca did not refer to this aspect, I am convinced that future works should expose the ever-changing (and often incoherent) constitutional values and policy reasons used to justify a given division of environmental powers. In particular, verifying to what extent proposed goals are effectively realised in the exercise of environmental powers is a research aim that has not yet received much attention.

The second element I would like to emphasise is that I totally agree with the claim that local governments are gaining prominence in environmental governance both nationally and internationally. This fact certainly reinforces the heightening interest of federal scholars in these levels of government in the functioning of multi-tier systems. Yet, I think that research on intermediate entities (for instance, Regions in Italy, Autonomous Communities in Spain, Provinces in Canada, States in the US etc.) may still offer innovative insights on federal studies, especially when it comes to environmental protection. I recently wrote a bid for a research project on exactly that topic. That research made me realize how understudied are those issues that relate to the institutional means relied on, by intermediate entities, to implement national/international environmental regulations and what the factors are that make this implementation successful. The lack of scholarly debate on those aspects is particularly evident when it comes to climate change regulation, an area that perfectly fits with Rebecca’s definition of cumulative environmental problems.

Finally, I completely agree that it is important, in federal studies, to look at rights and how rights are defended in courts (as argued by Roberto Niembro in his post within the same Symposium). In particular, Rebecca argues that constitutionally protected rights to the environment are increasingly showing how disproportionate environmental protection, or a complete lack thereof, can affect vulnerable groups and how these groups could succeed in holding their governments responsible for failing to provide an adequate level of environmental protection. Among these vulnerable groups falls one that Rebecca did not mention: young people and future generations. This group is usually excluded from political representation and is increasingly resorting to national courts and international human rights bodies to hold their governments accountable for not taking sufficient action to combat climate change (similar to what happened in the October 2018 Urgenda decision of The Hague Court of Appeal). I think that looking at these emerging phenomena has the potential to contribute to the environmental federal agenda proposed by Rebecca.

Federica Cittadino is a Senior Researcher at the Institute for Comparative Federalism, Eurac Research, Italy.

Suggested citation: Federica Cittadino, “A Short Reply to Rebecca Nelson’s Post ‘Federalism and Environmental Frontiers’” IACL-AIDC Blog (19 November 2019) https://blog-iacl-aidc.org/2019-posts/2019/11/19/a-short-reply-to-rebecca-nelsons-post-federalism-and-environmental-frontiers