On this episode of Free Range, Mike Livermore speaks with Jonathan Adler, a law professor at Case Western who writes on environmental law, federalism, and regulation. In 2020, Brookings Institution Press published Adler’s edited Marijuana Federalism: Uncle Sam and Mary Jane.

Livermore and Adler begin their discussion on the topic of federalism and environmental law. Generally, Adler highlights sees the federal government as best focused on transboundary issues while states focus on issues with more localized impacts (00:49 - 02:50). Adler lists several benefits of states as venues for environmental policymaking, including variation in geography, economics, and industry as well as differences in values (02:50 - 04:35). He also highlights the value of experimentation in this regard (04:35 - 05:30). Alder also notes the distinction between decentralization as a policy matter and decentralization as a legal matter (05:30 - 06:56).

Livermore notes the large role played by the federal government under existing law for locally oriented pollution. Adler offers some thoughts on the origins of this situation, mentioning the lack of jurisdictional thought when statues were passed as well as the deserved skepticism towards state and local governments as a result of the Civil Rights Movement (06:56 - 10:37). Adler hopes that today’s states are different from those in the 60s and 70s (10:37 - 10:52). Adler offers some suggestions for policy reform (12:50 - 16:35) and the two discuss potential political barriers (16:35 - 21:47).

Livermore introduces a discussion about injustice and public choice failure at the state level. He mentions our renewed emphasis on environmental justice issues, and Adler argues that while states can fail, so can the federal government (21:47 - 32:40).

Adler and Livermore turn to experimentation and state variation (32:40 - 42:01). Livermore notes his view that the Brandeisian idea of “laboratories of democracy” is inapt; that a better way to view this process is as innovation. Adler agrees with the concept of innovation and discovery, emphasizing the discovery side. It’s not experimentation in the sense that it is controlled, it is rather a discovery and learning process as a result of variation and observation (42:01 - 48:06).

Livermore requests Adler’s thoughts on federalism versus localism and decentralization more broadly. Adler responds with the idea that different communities have different priorities; there is no one size fits all. He mentions that when local communities are given autonomy and control, they often discover and innovate in ways that have important environmental benefits. In terms of legality, the extent to which this is viable varies from state to state (48:06 - 53:36).

Livermore and Adler return to the earlier, more legal discussion around litigation over climate damages. Livermore explains a recent Second Circuit decision which led to a preemption-like result, asking Adler to discuss the stakes of the difference between federal common law and state common law, displacement versus preemption, and his thoughts on the Second Circuit decision. Adler argues that, although from a policy perspective, climate change is better suited to national rather than state or local solutions, from a legal perspective, the Second Circuit’s holding that these suits were preempted was unjustified (53:36 - 1:02:34).

The final question the two discuss is the intersection between environmental federalism and political polarization. Adler argues that principled federalism can help depolarize because it can lessen the stakes. Unnecessary centralization magnifies polarization. Adler is careful not to generalize, recognizing that there is no one answer that will solve everything. However, he states that if we can allow centralization and decentralization where they are most fit, we might be a few steps closer to arriving at agreement on environmental policy (1:02:34 - 1:07:52).