A commenter on my last Rapanos-related post feels that I did not respond adequately to the concern that state efforts will be inadquate were the Supreme Court to narrow the scope of federal wetland regulation in Rapanos and Carabell. In this follow-up post, I will try to address this issue in greater detail (and point readers to articles in which I make some of these arguments in greater detail).

First, the fact that "only half" of states have wetland programs does not provide evidence that states would not protect wetlands in the absence of federal action. In fact, given the history of wetland regulation, I believe it suggests the opposite. State regulation of wetlands began in 1963, when Massachusetts adopted the first state wetland protection statute (which was itself modeled on preexisting local wetland protections). At this time, the federal government was not protecting wetlands. To the contrary, it was still subsidizing their destruction through various federal programs.

By the time the federal government got around to regulating the filling of wetlands in 1975, every coastal state save Texas had a wetland protection statutes on the books, and eleven states had freshwater wetland protection programs. The federal government did not lead the way in protecting wetlands. It was dragged along behind the states. Indeed, the U.S. Army Corps of Engineers only began regulating wetlands after it was told to by a federal court. [I recount this history in some detail in my article "Wetlands, Waterfowl and the Menace of Mr. Wilson, 29 Env. L. 1 (1999).]

Second, it is alleged that states are unlikely to protect wetlands because "there are pressures in local communities for land development that keep [state and local] guidelines from being as rigorous." Relatedly, some contend that the pressure to compete with other states for economic development will discourage states from adopting costly environmental measures. This "race to the bottom" argument is familiar, but it is also undermined by the empirical evidence. The pattern of state regulation prior to federal involvement is the exact opposite of what the RTB theory would predict. Those states with the most wetlands, measured as a percentage of their land area, should have been the least likely to regulate. Yet they regulated first. Indeed, every state in the continental U.S. with more than ten percent of its land area classified as wetlands regulated prior to 1975. Moreover, many states contain wetland protections that are more extensive, expensive, and ecologically minded than the federal program. [I have more to say about the alleged RTB here, as well as in the article cited above.]

The available evidence is even more suggestive when one realizes that the incentive for states to adopt their own wetland protections dropped dramatically once the federal government got into the act. In simple economic terms, the net benefits of adopting such programs declined to the extent that federal regulation served as a substitute for state regulations. Even those states that, today, demand greater levels of wetland protection than the federal government provides may be discouraged from adopting new programs by the existence of the federal regulations. [I have much more to say on this potential "crowding out" effect of federal regulation in this draft paper on SSRN.]

No one can say for certain what states (and local governments and non-governmental conservation groups) would do were the federal government's regulatory authority limited by the Court, but I do believe the evidence suggests that states, on the whole, would be significantly more active than they are today. As I noted in my last post, after the Supreme Court's 2001 SWANCC decision, it appeared that the federal government's CWA jurisdiction would limited substantially. In this period, numerous states began to consider new measures to fill the gap. In some states, such as Ohio, these measures were adopted. Within short order, however, it became clear that both the federal government and most lower courts would read SWANCC narrowly, so the need for greater state efforts was less clear. Nonetheless, when it looked like greater state action was necessary, states appeared ready to respond (even if they would have preferred action at the federal level).

All of this does not mean that a curtailment of federal regulation will have no effect on wetland protection. But I believe it does show that the actual reduction in actual wetland protection caused by limitations on federal jurisdiction will be less than many fear. If greater attention were paid to the interrelationship between federal and state regulation, and more focus were placed on encouraging state-level, as well as localized and non-governmental wetland protection efforts, we could achieve greater levels of environmental protection at lower economic and social cost. There are many reasons to be dissatisfied with federal regulation, not least its poor record at delivering the environmental goods. If Rapanos and Carabell such regulation, I hope they will spur new efforts to consider possible alternatives.

In the end, it is important to look at the broader context. I would be the last person to claim that state regulation is perfect. But federal regulation is far from ideal as well. Indeed, I could cite dozens of environmental analysts lamenting the inadequacy of federal wetlands regulations -- the same regulations that some seem to suggest are the only things preventing utter ecological devastation. The relevant question is not whether a given balance of state and federal authority produces the desired level of environmental protection -- for many of us, that is unlikely to ever be the case -- but which institutional arrangement maximizes the combination of environmental protection and other values that are important to us. So, the relevant question is not "will [states/feds/others] do a good job," but which is best (or, perhaps, least worst).

Post-Script: One point I did not address is the concern about interstate pollution. In this context it is largely a red herring. Federal wetland regulation has little to do with the control of interstate pollution spillovers. And while a decision limiting this program will have some effect on other parts of the CWA, it need not have much (if any) effect on federal efforts to control interstate water pollution. If there is interest, I can explain in greater detail in a subsequent post.