Symposium: Federalism and Environmental Frontiers

Rebecca Nelson

University of Melbourne

Allocating and coordinating powers over parts of the environment horizontally and vertically between governments can help – or hinder – efforts to address environmental problems. As the final blogger in this series, I explain how my research addresses this issue at the intersection of two of the major lines of inquiry of the IACL Research Group on New Frontiers of Federalism, with examples from several jurisdictions around the globe.

Like ethnic, linguistic, and other forms of diversity, diversity in environmental conditions has been a rationale used to justify federal legal arrangements, enabling sub-national units with closer knowledge of the diverse conditions of local environments and natural resources to manage those assets.

However, devolving environmental regulatory powers to access local expertise and public preferences has not prevented serious environmental problems. Not only are constitutional democracies experiencing an unprecedented set of socio-economic and governance challenges and tensions (as John Stanton has noted), they are also facing environmental problems of unprecedented proportions. Many of our most important environmental challenges, from climate change, to unsustainable water use, to mounting threats to biological diversity, are species of one type of mega-problem that is the subject of my research: cumulative environmental effects. Many individuals and enterprises undertake activities that may cause individually insignificant levels of environmental harm, but those many causes aggregate and interact – sometimes exacerbated by natural causes – to lead to cumulatively significant harm. As I describe elsewhere, problems of cumulative environmental harm are not merely technical troubles: they are accompanied by important legal ambiguities, the resolution of which can be seriously affected by federalist arrangements.

The breadth of human activities that causes cumulative environmental effects mean that they are often addressed in many legal layers, engaging with law-making authority that is often dispersed vertically and horizontally among governments within a nation (and even among nations, in the case of global problems such as climate change). In many cases, even where feasible, centralisation of regulatory authority in law or practice would offer no simple cure, and would be unlikely to be effective. Centralising power fails to take advantage of critical lower-level knowledge of local environmental conditions, and may carry distinct risks of political unpalatability.

My work argues that this century’s most important environmental problems, which can be characterised as cumulative environmental effects, inescapably require law to coordinate, within federal systems, information sharing and decision-making that relates to effects on the same valued environments, which are regulated at different levels of government. Legal measures could play an important role in ensuring the longevity of coordination mechanisms that would otherwise be based on policy, and insulating them from the vagaries of changes in funding arrangements.

Beyond mechanisms to promote coordination in federal systems, more foundational aspects of constitutional arrangements offer innovative ways to respond to the challenges inherent in the dispersed, accumulating nature of our most important contemporary environmental problems. My research points to emerging frontiers for addressing this question, many of which intersect with key interest areas of this new IACL Research Group: cities and socio-economic asymmetries.

Local government and cities

Beyond traditionally constitutionally recognised levels of government, local governments, including metropolitan cities, emerge as powerhouses of environmental influence. This can carry environmental advantages and also disadvantages. Cities’ concentrated populations are necessarily nodes of accumulation for concentrated environmental harms, from air pollution caused by vehicles and industries, to habitat fragmentation and destruction caused by suburban sprawl, to dramatic subsidence of the ground surface caused by unsustainable over-extraction of underground water. Urban centers are responsible for some 70 per cent of CO2 emissions.

Cities must clearly be key actors in the multi-layered system that is environmental governance. That role is emerging in interesting ways in federal systems. Through ‘city diplomacy’, innovative transnational city alliances, and other modes of global governance, city governments have spearheaded some of the globe’s most exciting movements for action on climate change. Sometimes they do this to fill in gaps left by national governments. In other cases, national governments may seek increasing control over urban environments on the basis of inadequate current performance. In Australia, a recent federal parliamentary inquiry highlighted urban sustainability as an important concern requiring federal leadership, federal funding, and cooperative planning efforts between federal, local and state governments (though informed by the sense that the states are currently under-performing in their role in relation to cities). In the United States, the Federal Emergency Management Authority has well-established programs to pay homeowners to move away from (or “retreat” from) urban flood-prone land. This has potentially significant implications for local government if efforts are not coordinated and planned, since resulting constraints on the use of the “bought-out” land affects urban form, local government maintenance requirements and tax revenue.

These interactions and tensions between cities, other governments and environmental issues pose fascinating questions in the context of the typical silence of constitutions when it comes to cities. Cities can take on meaningful direct relations with national governments and even international relations in practice, yet may also be subject to calls for more central powers to place urban issues on national agendas. Regardless of how legal power-sharing in relation to cities plays out, the actions of cities are critically important to solving cumulative environmental problems that tend to accumulate in cities, further complicating the multi-level governance picture I outline above.

Socio-economic asymmetries, environmental justice and constitutional rights

All too often, socio-economic and political asymmetries across multi-level jurisdictions are accompanied by inequalities in the distribution of environmental outcomes, giving rise to concerns about what is commonly termed ‘environmental justice’. Burdens of more air pollution, contaminated drinking water, or even fewer urban green spaces for mental health benefits, accumulate with underlying socio-economic burdens – another perspective on cumulative environmental effect. Even apparently benign federal efforts to intervene in local environmental risks – like federal US buyouts of flood-prone land – can raise serious implications for social justice if they disproportionately affect low-income and minority communities.

Legal systems can offer a variety of ways to recognise and respond to these combined socio-economic-environmental effects, mediated and influenced by federalism. The astounding rise of environmental constitutionalism around the globe, particularly the adoption of constitutional rights to a healthy environment, provides scope for holding federal governments accountable for failing to deliver these rights. Constitutional rights hold particular promise where lower level actors, perhaps industries or local governments with a regulatory role, cannot be held to account, as where insufficient evidence is available about the contributions of individual entities to highly polluted environments, particularly in socio-economically disadvantaged areas where environmental monitoring may have been neglected or where litigants cannot afford expensive scientific data collection. This promise manifested earlier this year, when Chile’s Supreme Court found violations of Chile’s constitutional environmental protections as a result of governmental failure to sufficiently monitor and intervene in long-running industrial pollution in the socio-economically disadvantaged Quintero-Puchuncaví coastal area.

The constitutional position of Indigenous peoples also appears at the intersection of socio-economic asymmetries and environmental justice. In Canada, national and provincial governments share jurisdiction in relation to the environment, while engaging obligations to consult and accommodate First Nations. Concerns about industrial developments and hydropower dams having significant cumulative effects on caribou led to successful litigation by First Nations claiming a failure by the Crown to guarantee treaty rights in relation to hunting and managing caribou integral to First Nations’ spiritual and cultural identity.

Federalist systems around the world struggle with diverse kinds of cumulative environmental problems. Yet they have many common elements, prominent among which is the need to understand and potentially regulate many entities undertaking activities that may cause environmental harm, over which different levels of government may have law-making authority, and to coordinate the exercise of that authority. Designing solutions to cumulative environmental problems is inherently an exercise in comparative federalism at the frontiers not only of environmental governance, but federal scholarship.

Rebecca Nelson is a Senior Lecturer at Melbourne Law School, University of Melbourne.

Suggested citation: Rebecca Nelson, “Federalism and Environmental Frontiers” IACL-AIDC Blog (7 November 2019) https://blog-iacl-aidc.org/new-frontiers-of-federalism/2019/11/7/federalism-and-environmental-frontiers