The Interjurisdictional Gray Area
Chapter Five probes the zone of jurisdictional overlap that belies the dual federalism ideal, where both the states and federal government hold legitimate regulatory interests or obligations. It explores air and water pollution, counterterrorism efforts, climate change, nuclear waste siting, and disaster response as examples of interjurisdictional regulatory problems. Tensions among federalism values are especially heightened in these environmental, land use, and public health and safety regulation—all legal realms that match compelling claims for local autonomy and/or expertise with equally compelling needs for national uniformity and/or federal capacity. After illustrating the different reasons for jurisdictional overlap through these examples, the chapter reconceptualizes dual federalism’s bright-line boundary problem as a matter of “regulatory crossover” into the interjurisdictional gray area. The chapter then discusses how uncertain federalism theory creates two kinds of risk for good governance in the gray area: (1) that fear of doctrinal liability may deter needed interjurisdictional efforts, and (2) that doctrinal uncertainty may invite self-serving regulatory abdication. Finally, Chapter Five demonstrates the benefits of jurisdictional overlap through the detailed case study of regulatory backstop in climate mitigation and adaptation governance, reviewing regional cap-and-trade programs like the Regional Greenhouse Gas Initiative (RGGI), federal and state renewable portfolio standards, green building requirements, and transportation sector initiatives. Finally, it applies its framework of analysis to the Katrina experience, concluding with reflections on how federalism theory more sensitive to gray area governance might have led to a different regulatory response.
Keywords: interjurisdictional gray area, jurisdictional overlap, water pollution, stormwater, air pollution, fleet purchasing rules, counterterrorism, 9/11, nuclear waste, climate change, disaster response, environmental law, land use law, public health, bright-line rule, regulatory abdication, regulatory overlap, jurisdiction, climate governance, mitigation and adaptation, regional Greenhouse Gas Initiative (GRRI), renewable portfolio standards, green buildings, transportation sector, hurricane Katrina
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