Neg
Uniqueness
Coop Now
Fed respecting states
The US is trying to better involve states in ocean policy
Heimes 10 (Rita S., “Ocean Management & Planning in the United States: From Competition to Cooperation”, Annuaire de Droit
Maritime et Océanique, Forthcoming, http://mhk.pnnl.gov/sites/default/files/publications/Heimes_2010.pdf)
Since the United States began in earnest to regulate ocean uses to prevent environmental degradation,
while at the same time encouraging exploitation of its natural resources for human food and energy
consumption, it has generated multiple federal laws and regulations managed by a plethora of
administrative agencies, departments and executive offices. It has also tried, through the Coastal Zone
Management Act, to take into consideration the concerns and ideas of the coastal states upon whom
much of the negative impacts of ocean exploitation fall. Through the National Ocean Council and,
eventually, coastal and marine spatial planning efforts conducted throughout the nation by regional
bodies, the US has an opportunity to streamline its ocean-related regulatory processes, coordinate
decisions for the benefit of commerce and ecosystems alike, and involve state and local interests in a
fully integrated and meaningful way.
The Federal Government is respecting state’s rights—Colorado proves
Scot Kersgaard November 16, 2012 <The Colorado Independent, Coffman backs move to force feds
to respect states’ rights on marijuana, http://www.coloradoindependent.com/126376/coffman-backsmove-to-force-feds-to-respect-states-rights-on-marijuana>
Today I am proud to join with colleagues from both sides of the aisle on the ‘Respect States’ and
Citizens’ Rights Act’ to protect states’ rights and immediately resolve any conflict with the federal
government,” said Rep. DeGette in a press release. “In Colorado we’ve witnessed the aggressive policies of the federal government in
their treatment of legal medicinal marijuana providers. My constituents have spoken and I don’t want the federal government
denying money to Colorado or taking other punitive steps that would undermine the will of our
citizens.” Coffman said in the release that while he opposed the legalization of marijuana, he feels an obligation to support the will of voters,
who in his district supported the measure. “I voted against Amendment 64 and I strongly oppose the legalization of marijuana, but I also have
an obligation to respect the will of the voters, given the passage of this initiative, and so I feel obligated to support this legislation,” he said in
the release. “Residents of Colorado and Washington
have made it clear that the public is ahead of the federal
government in terms of marijuana legalization,” said Oregon Rep. Earl Blumenauer in the release issued by DeGette. “It’s time for
Congress to pass legislation – such as the ‘Respect States’ and Citizens’ Rights Act’ – that allows states to
implement their own laws in this area without fear of federal interference.” Oregon voters shot down a measure
that would have legalized marijuana in that state. More from DeGette’s press release: “The federal government’s failure to develop a
reasonable approach towards the varying state marijuana use laws has made this legislation necessary,” said Rep. Sam Farr (CA-17). “From
increased raids on legal dispensaries to denying defendants in court the right to present evidence of their legal marijuana use, the federal
government has chosen to trample on state rights rather than work with them as a partner to address this issue.” Polis today sent a letter to
Attorney General Eric Holder and Drug Enforcement Administration Administrator Michele Leonhart asking that they take no action against
people whose activities related to marijuana are in compliance with state law. In addition to Polis, the letter was signed by: Steve Cohen, D-TN;
DeGette, Ed Perlmutter D-CD-7; Barney Frank D-MA; Earl Blumenauer,D-OR; Jerrold Nadler, D-NY; Jan Schakowsky, D-IL; Sam Farr, D-CA; Jim
Moran, D-VA; Chellie Pingree, D-ME; Adam Smith, D-WA; Barbara Lee, D-CA; Dennis Kucinich, D-OH; Raúl Grijalva, D-AZ; Robert C. Scott, D-VA;
and John Conyers, D-MI.
Current system good
Cooperative Federalism now, States acted first
Glicksman ’06 (Robert, professor at George Washington University law school, From Cooperative to Inoperative Federalism: The
Perverse Mutation of Environmental Law and Policy, GW law,
http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1653&context=faculty_publications, accessed: 7/12/14 GA)
Both the federal government and the states have ample authority to take actions that are designed to
protect human health and the environment from the adverse effects of industrial and developmental
activity. The federal government may rely upon its authority to regulate interstate and foreign commerce49 to restrict pollution-generating
activities, for example,50 and it may rely upon its power to “make all needful Rules and Regulations respecting” property that it owns51 to
manage the federal public lands and resources and protect them from damage caused by activities on adjacent private land.52 Beginning in the
nineteenth century, the federal government frequently resorted to its authority under the Property Clause by enacting statutes that authorized
federal agencies such as the National Forest Service53 and the National Park Service. It
was the state and local governments
that first took the initiative in restricting polluting and land development activities with the potential to
harm the environment. Common law litigation sounding in causes of action such as nuisance, trespass, negligence, and strict liability
provided one forum in which those injured by pollution.
Power is balanced in the status quo – federally mandated coastal policy systems
create complex local/state management systems that give states adequate control.
Knight 2000 (Maurice, Senior Policy Advisor Coastal Resources Center, University of Rhode Island, “The United
States Experience in Decentralized Coastal Management: Lessons for Indonesia”,
http://www.crc.uri.edu/download/TR-00_05-E_The_US_Experience.pdf)
1.2 National Program Throughout the IST, the participants were involved in discussions concentrated on the importance of the National Coastal
Zone Management Act of 1972 (CZMA) in setting a national coastal management agenda in the United States. The CZMA resulted in states,
local governments and stakeholders focusing their attention, efforts and financial resources on coastal zone management. Especially
emphasized was the way the national
law was designed to encourage states, local governments, Indian tribes
and the general public to exercise their full right and authority in appropriately managing and
developing coastal resources. This includes clarifying the specific roles of different levels of government, ensuring minimum
standards of performance through voluntary certification of programs and guaranteeing opportunities for public participation. Certification of
all state and local coastal zone management (CZM) programs is a pivotal feature of the Integrated United States program. The requirements for
voluntary certification of state and local programs under the CZMA can be broadly categorized as processes related to information and
definitions, institutions and organization, procedures and planning.
By setting out the process and elements that must be
included in each of these broad categories, the United States national government ensures an orderly
and effective approach to decentralization of coastal management. In addition, the United States federal government
lays out incentive structures that provide enough encouragement for all states to voluntarily enter the national certification programs. These
incentives are financial and jurisdictional (in terms of federal, state and local consistency with approved coastal plans). 2.4 State and Local
Response to the CZMA Through Integrated Coastal Management Programs The coastal zone of United States and territories generally includes
lands and waters from the territorial limit of three nautical miles to sea, to some inland boundary which may correspond to political boundaries
(e.g., the inland boundary of all coastal counties), administrative boundaries (e.g., the nearest roadway), functional boundary (e.g., important
ecosystem boundary) or some combination of these. This
CZMA requires only that the coastal zone boundary be
defined and allows state and local governments to decide on the appropriate method according to local
conditions. Many states use a tiered approach for defining the coastal zone, usually two tiered. The first tier
includes the area with the 'most direct interaction with the coast' or the 'zone of primary influence'. Tier two includes the rest of the coastal
zone considered to have indirect interaction with the coastal zone. Permitting in Tier one usually requires that any proposed development use
be designated as a 'coastal dependent use' before being considered appropriate for near coastal zone. Tier two would then consider for
permitted use those developments that are less dependent on being located immediately adjacent to the shore. Meetings between IST
participants and the Coastal Commission of Rhode Island, a smaller state than most others, revealed a three tiered approach. These include a
"zone of primary influence, a second zone delineated by the inland borders of the coastal counties and a third that includes the entire state in
the coastal zone". Florida and Hawaii also designate the entire state as coastal zone except for federal lands and Indian Tribal lands. Under the
CZMA, the management structure for receiving national certification is not determined. Approaches
range from complete direct
state control of all designated coastal lands and waters, to regional agreements among various agencies
for to co-management. Generally, states do not manage their coastal zones as one contiguous, all encompassing unit. Usually,
coastal zone management authority is divided among various state and local authorities to which a
considerable amount of coastal management review and permitting authority is delegated. In some states
these local units are county or municipal governments, others are special management area commissions that manage areas that cross political
boundaries (e.g., dividing the state into regional zones which may be individually managed). However, in all cases,
a lead agency retains
oversight of these local programs through some mechanism. There is widespread use of state-local
administrative relationships in United States coastal states and territories. Usually local county or
municipal (city or township) authorities create local coastal zone management programs with technical
help from the state level. Once these local programs are approved, some degree of permitting and
enforcement authority is delegated to the local level with continued but loose oversight from the state
lead agency.
States Control Now
Generic
States are pushing for more coastal management now, and have significant power
over their waters
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
After initial recognition of the environmental impacts of offshore development, coastal
states and local governments
prompted the next phase of offshore federalism by seeking to increase their respective roles. Spurred by
national interest that culminated in the adoption of the CZMA, coastal states began more concerted coastal planning
guided by the CZMA and now constitute a significant source of coastal regulation. n179 In the 1990s, following
the federal government's extension from a three-to twelve-mile territorial sea, coastal states began agitating once more, and ultimately
unsuccessfully, for additional offshore management jurisdiction. n180 [*1387] Recently, to
address the pollution from increasing
populations and to restore marine ecosystems, many coastal states have also undertaken alternatives to
the traditional rules-based laws used to manage oceans. Some states have initiated a form of ocean
zoning in addition to zoning inland. States have delineated spatial areas offshore within state jurisdiction to
manage the oceans for particular preservation and restoration goals: one example is California's Marine Life
Protection Act. n181 The purpose of the Act is to review the adequacy of existing marine protected areas and to determine the need for new
marine protected areas. n182 The most controversial aspect is the designation of new areas as off-limits to extractive activities. n183 Further,
funding for implementation was an early issue that halted implementation and is projected to remain a salient issue moving forward. n184
Similar state efforts and coastal state and regional coalitions indicate an increasing awareness of the
challenges of sustainable coastal management across jurisdictional boundaries. n185 As discussed further in
Part IV, these approaches hold important promise for ecosystem-based management. Unfortunately, federal
funding for increased coastal management has waned over time, and funding for these initiatives is becoming a significant impediment to their
progress. n186 Certainly, these financial issues do emphasize the need for shared revenues where the environmental impacts of coastal and
offshore developments can be mitigated by rents, royalties, and other types of development payments made by private users of public
resources. n187 Yet it does not explain the continued narrow focus on [*1388] boundaries and revenues that currently dominates the debate
over legal reform.
In status quo US states control resources- good for the economy
Kolawole 2013
(Simon, “A Federalism Ruined By Allocations [opinion]”, This Day (Lagos), October 13, 2013, Lexis Nexis)
What is federalism? You are never going to get one definition. Not that it cannot be neatly defined but, in practice, there are hardly any two
forms of federalism that are the same. I have done extensive studies on federalism in the US, Canada, Mexico, Germany, Australia, UAE and
Brazil, among others, and I find it interesting that every country seems to have evolved a system that suits its history and purposes. While some
political scientists will want federalism
described simply as "weak centre, strong units" (compared to the unitary system
of "strong centre, weak units"), the consistent feature is that power is shared between the centre and the
federating units. Federalism is mostly two-tiered, but countries such as Nigeria, India and Brazil have introduced a third tier called local
governments or municipalities over the years. In terms of ownership of natural resources, federal systems do not have a
standard format. In the UAE and US, for instance, every federating unit controls its resources. This is "resource control" at
work. In Canada, however, there is a deliberate policy to achieve "balance" or "equalisation" through the sharing of a percentage of the
petrodollars with non-oil-producing provinces. In
Nigeria, we apply principles such as "need", "land mass" and "population" to achieve a
federal government is totally in charge of the oil, much like Nigeria. All
the states receive 20 per cent as transfers (federal allocations). Mexican municipalities (called councils in Nigeria) where
oil production and shipping activities take place receive an extra 3.17% as "compensation" (13% "derivation" in Nigeria).
similar objective. Meanwhile, in Mexico, the
But I am not here today to propose what variant of federal system is best for Nigeria. I honestly cannot be bothered. I worry more about the
leadership rather than the systems. My concern, and many Nigerians have been expressing this worry for ages, is our variant of federalism
which is based on federal allocations. This
is stunting our development. We run an economic system where all the tiers
of government shamelessly live on "federation salaries". If these "salaries" are delayed or short-paid in any month,
there is immediate repercussion for the economy. Nigeria's most important meeting every month is that of the Federation
Account Allocation Committee (FAAC). Without FAAC, we are nothing. Take away the oil money and you have a country that is headless and
we can run a federalism where the units
are economically strong, with or without amendments to the constitution. How can the states become less dependent on
going in no particular direction. The conversation we ought to be having today is how
FAAC? How can federal allocations become mere "pocket money"? How can a state like Rivers or Delta get N20 billion from FAAC but generate
N100 billion internally? How can we change our mentality from allocation and consumption to production and development? For me, that is
the real deal as we seek to make Nigeria a better country and reduce the political and economic tension in the land.
States have the control of the ocean now – both inside and outside the three mile line
Burger 11, Burger, Micheal. "Consistency Conflicts and Federalism Choice: Marine Spatial Planning
Beyond the States’ Territorial Seas." Environmental Law Institute 7.41 (2011): 2-5. Pace Law. Pace
University Law School, July 2011. Web. 11 July 2014. CS
Jurisdiction.over.tidal.waters.in.the.United.States.is.clearly. divided.between.the.federal. government.
and.the.states .. The.Submerged.Lands.Act.(SLA)13.gives.states.jurisdiction. from.the.mean.hightide.line.out.to.three.nautical.miles,14. and. grants.coastal.states. “title.to. and.ownership.of.the.
lands.beneath.navigable.waters.within.the.boundaries.of.
the.respective.states,.and.the.natural.resources.within.such. lands. and.waters
.”15.The.federal.government.does.retain. some.power.within.the.states’.territorial.seas—including.
the.power.to.regulate. “commerce,”. “navigation,”. “power. generation,”. and. “national. defense”16—but. it.
does. not. have.the.rights.to.“management,.administration,.leasing,.
use.and.development.of.the.lands.and.natural.resources .”17.
Beyond.the.states’.territorial.seas,.the.federal.government. claims.jurisdiction.out.to.200.nautical.miles,.the.boundary. of.the U .S . Exclusive
Economic Zone (EEZ) . 18.Under.the. still-unratified.United.Nations.Convention.on.the.Law.of.
the.Sea.III,.signatories.have.extensive.rights.over.natural. resources.within.their.EEZs,.including.the.right.to.develop.
renewable.energy.resources . 19 Iõ achieve a balance, the
CZMA does two things. First, it provides states fhnding to develop
coastal management programs (CMPs) that then approved and made enforce able to the Nationa1 Oceanic and Atmospheric
Administration (NOAA).N Second, the CZMA provides for “consistency review. Consisting review allows the states to deny or
restrict activities both within and outside the coastal woe if the result for “coastal effects” would be
inconsistent with die enforceable policies of a state’s CMP.” Coastal effects are broadly defined, including
any reasonably forseeable effect on any coastal use or resource resulting from a federal agency activity
or federal license or permit activity,”” aid the effects test” transcends any memoir oljurisdllctiona1 boundaries, including the
boundary marking federal land located within a state’s coastal zonez the landward boundary between the coastal woe and upland areas,’ and
the three-mile line between the state’s territorial sea and kderal Viewed
through a & federalism lense, consistency review
is che CZMA’s most unique and important feature, constituting a “limited waiver of coral supremacy and
authority”0 char is highly unusual, if not entirely unique, in environmental law. The limitations on that waiver exist at both the
CMP ami consistency review stages, and they arc critical. as they check state authority both within and beyond the three-mile line. At the CMP
stage. the CZMA
requires stares co consider the “national interest,” and to give “priority consideration . . .
to coastal-dependent uses and orderly processes for siting major facilities related to national defense,
energy. fisheries development, recreation, ports and transportation.”‘ The CZMA also gives the Secretary of
Commerce authority to periodically evaluate CMPs and to review claims that a given state has failed to account fix the national interest.’3 Ar
che consistency review stage. the CZMA allows either 6dcral agencies or the Secretary of Commerce to override individual adverse consistency
deter minations when certain conditions are met.44 The next part uses the RI O..SAMP as a case study to detail how these CZMA provisions will
determine the force state MSP is able to exert on siting renewable energy facilities in federal waters.
Aquaculture
States have jurisdiction over aquaculture up to three miles off the coast—California
proves
Naylor and Leonard 10 (Rosamond L. and George H. , Times Colonists “Aquaculture viable if planned responsibly; U.S. bill aims to
set standards to ensure environment is respected”, Times Colonist (Victoria, British Columbia), February 21, 2010 Sunday Final Edition,
LexisNexis)
While our appetite for seafood continues to grow, most of us know little about where our fish comes from or now it was produced. In
California, more than half of our seafood comes from aquaculture, often imported from fish farms in other countries.
Just as most chickens, pigs and cows are raised in tightly confined, intensive operations, so too are many farm-raised fish. But raising fish in
tight quarters carries some serious risks. Disease and parasites can be transmitted from farmed to wild fish. Effluents, antibiotics and other
chemicals can be discharged into surrounding waters. Non-native farmed fish can escape into wild fish habitat. And a reliance on wild-caught
fish in aquaculture feed can deplete food supplies for other marine life. These environmental impacts have been evident in many countries with
intensive marine fish farming. In Chile, where industry expansion was prioritized over environmental protection, salmon aquaculture has
collapsed, causing a major blow to what had been one of Chile’s leading exports. Tens of thousands of people are now jobless in southern Chile,
where the salmon farming industry once boomed. If aquaculture is to play a responsible role in the future of seafood, we must ensure that the
“blue revolution” in ocean fish farming does not cause harm to the oceans and the marine life they support.
In December, California
Rep. Lois Capps introduced the National Sustainable Offshore Aquaculture Act, a bill that addresses the
potential threats of poorly regulated fish farming in U.S. ocean waters. Her bill shares many of the features of a
California state law, the Sustainable Oceans Act, which was signed by Goy. Arnold Schwarzenegger in 2006. That legislation regulates
fish farming in state waters, which extend three miles off the California coast. At present, all aquaculture
operations in California and the U.S. are located just a few miles offshore. If the U.S. follows California’s lead, we
might be able to reward innovation and responsibility in aquaculture and at the same time prevent the kind of boom-and-bust development
that happened in Chile.
Unlike previous attempts to legislate fish farming at the national level, the Capps bill
would ensure that U.S. aquaculture in federal waters, which extend from three to 200 miles offshore,
establishes as a priority the protection of wild fish and functional ecosystems. It would ensure that industry
expansion occurs only under the oversight of strong, performance-based environmental, socioeconomic and liability standards. The bill also
would pre-empt ecologically risky, piecemeal regulation of ocean fish farming in different regions of the U.S. Indeed, regulation efforts are
already underway in many states, with no consistent standards to govern the industry’s environmental or social performance. Previous federal
bills introduced in 2005 and 2007 were fundamentally flawed -- and ultimately did not pass -- because they put the goal of aquaculture
expansion far above that of environment protection. Now, for the first time, a bill has been introduced that would demonstrably protect marine
ecosystems, fishing communities and seafood consumers from the risks of poorly regulated open-ocean aquaculture. The Obama
administration is currently developing a national policy to guide aquaculture development. It would do well to embrace the vision for a sciencebased and precautionary approach to ensure a responsible future for ocean fish farming. Rosamond L. Naylor is director of the program on food
security and the environment at Stanford University. George H. Leonard is director of the aquaculture program at the Ocean Conservancy Santa
Cruz, Calif. They wrote this article for the Los Angeles Times.
Court rulings
Court rulings have allowed states to control ocean development through
environmental regulations
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
The most important public lands case for offshore federalism insights is California Coastal Commission v.
Granite Rock Co. n308 The Supreme Court held that state regulation of minerals development was not
preempted merely because the federal government also regulated minerals development pursuant to its
Property Clause power. n309 The California Coastal Act prohibits development in the state's coastal zone [*1404] without a California Coastal
Commission permit. n310 Granite Rock Company, a mining company, entered federal public lands in the coastal zone open to prospecting
pursuant to the Mining Act of 1872 and obtained unpatented mining claims in the Los Padres National Forest. n311 Granite Rock sought an
injunction and declaratory relief exempting it from the Coastal Commission permit requirement. n312 The Court found that state regulation
was not expressly preempted. n313 Moreover, after conducting the preemption analysis employed by modern courts - where the court
examines whether the provision is either expressly or impliedly preempted - the
Supreme Court determined that neither the
National Forest Management Act, the FLPMA, nor the CZMA (which defined "coastal zone" to exclude federal public lands) preempts
state environmental regulations. n314 The majority decision embraced the Coastal Commission's
assertion that it would impose environmental regulations, not land-use controls, through its permitting
requirements. n315 The decision was viewed as a significant CZMA victory for states n316 and has been severely
criticized by those favoring federal supremacy. n317
CZMA
The Coastal Zone Management act has given states authority over their coasts for the
past three decades
Russell 2004
(Robert H., J.D., Harvard Law School. Mr. Russell teaches environmental law in the graduate program at
Tufts University, and has taught energy regulation, environmental law and policy, and property law at
other universities and law schools in the Boston area. He also consults with nonprofit organizations and
government agencies on environmental matters., “COASTAL WIND ENERGY GENERATION: CONFLICT
AND CAPACITIE: SYMPOSIUM ARTICLE: Neither Out Far Nor in Deep: The Prospects for Utility-Scale Wind
Power in the Coastal Zone”, 2004 Boston College Law School, Boston College Environmental Affairs Law
Review, Lexis Nexis)
II. COASTAL MANAGEMENT: A REGULATORY COLLAGE Expansive near-shore
wind development is likely to attract
controversy and opposition. n59 But whether the outcry is loud or muted, the controversy will be examined through the lens
of the nation's coastal zone management program. The coastal zone program is the primary means by which federal, state,
and local agencies and political units attempt to balance and harmonize intensive and contradictory patterns of use along the expansive
American shore. To fully appreciate the challenges wind power faces, it is necessary to consider the values, policy objectives, and legal
framework of this unusual program. n60 A. The Fault Line of Coastal Policy Over the centuries, the American coastline has become a conflict
waiting to happen. From
colonial times, public trust concepts have accorded to private citizens the right to
engage in a variety of commercial activities along the coast and in coastal waters. n61 During that early
period, the states generally took the lead in regulating offshore fishing. n62 Not long after, the federal
government developed an interest in maintaining shoreline integrity. n63 American federalism, augmented by
a long tradition of local land use control, continues to ensure that coastal oversight is a relatively decentralized, and
therefore complex, task. In the twentieth century, particularly in recent decades, the potential for conflict has been realized. The 1990 U.S.
population living in coastal counties stood at more than 133 million. That population is increasing nearly fifteen percent faster than in inland
areas. n64 By 2025, [*233] nearly three-quarters of the nation is expected to live along the coast n65--even though its 672 coastal counties
account for only fourteen percent of the total land area of the contiguous states. n66 New understanding of the enormous biological
productivity of the coastal ocean--the area stretching 200 nautical miles from the shoreline to the far edge of the Exclusive Economic Zone n67-has served to intensify the conflict. Today, the
coastal ocean is a vital and unique ecological resource. It also is the source of
fossil fuel and mineral wealth, and significant recreational opportunities. n68 Offshore wind power is one of the
most recent arrivals in a complicated, congested, and contentious arena. At the most general level, the challenges that confront
wind development arise from the two faces of federalism: (1) state exercise of power to defend
territorial waters from locally undesirable coastal uses; n69 and (2) a persistent federal aversion to
addressing or even identifying the most pressing of the myriad demands for coordination that test
coastal management. n70 B. The CZMA: A Harbinger of Devolution The Coastal Zone Management Act (CZMA) n71
establishes the structure whereby competing demands and conflicts along the coast and in state waters are
mediated among federal, state, and local agencies. n72 [*234] When it was enacted more than thirty years ago, the
CZMA presaged a shift in regulatory authority from the federal government to the states--a trend that
has accelerated over the past two decades. n73 The Act and state programs it promotes mark a period of intensifying and
sometimes incompatible public and private interest in coastal resources, both on land and in water. Unlike other legislation affecting the coast
and ocean, n74 the CZMA is designed to be general and integrative in its application. Unlike many other major environmental laws, it openly
embraces a devolutionary federalism. n75 It encourages states to take charge of their own coastal
problems, often with little federal oversight and even less interference. The CZMA, in fact, remains one of the few
major examples of a federal statute that envisions a fully cooperative relationship among the levels of government. It is said to be both the
federal government's "first major experiment with an integrated environmental program," n76 and "the oldest national-level coastal
management program in the [*235] world . . . ." n77 And, from a state perspective, the CZMA appears to have weathered relatively well. n78
But for others, particularly those seeking to site utility-scale wind farms near populated shorelines, the early signs point to choppy waters
ahead. 1. The General Approach The Coastal Zone Management Act addresses a wide spectrum of potentially conflicting activities and uses, yet
it does this in an indirect manner. n79 Rather than attempting to command specific substantive results, Congress established a procedural
matrix that, in its view, would achieve those results in practice. n80 Its
central premise is that effective coastal
management can arise from comprehensive state-level planning, provided background authority is properly allocated
among federal, state, and local officials. The CZMA is intended to further the protection and development of each
state's coastal zone, n81 including the coastal zone's "natural, [*236] commercial, recreational,
ecological, industrial and esthetic resources . . . ." n82 Each one of these goals is broad and vague. In the aggregate, they serve
to sharpen conflict among uses and users. n83 Reflecting the breadth and flexibility of these findings is the "great flexibility" n84 of the Act
itself. States
enjoy enormous leeway in crafting customized coastal zone plans. These plans can and do
address a diverse range of issues. n85 Like coastal ecology itself, those issues may vary widely from jurisdiction to jurisdiction. n86
The CZMA's focus on process means that each coastal management program tends to operate like a "black box"--it can generate decisions,
while failing to enunciate the clear principles and performance standards that many believe are a necessary prerequisite to coherent coastalzone management over the long term. n87 It is ironic that, at the time of its passage, the CZMA's main legislative competitor was a more
comprehensive national land-use bill that would have subsumed coastal protection. Many in the environmental community favored this
broader approach because the program would have been under the control of the Department of the Interior rather than the Department of
Commerce, and because it promised a stronger federal hand in state decisionmaking. n88 But an
influential [*237] commission n89
that had been clearing the path for national shoreline legislation concluded that coastal management
should be largely the responsibility of the individual states. The result was a separate measure--the CZMA-guided by the principle of "cooperative federalism." n90 The more comprehensive initiative notwithstanding, coastal
policy has remained a matter of state and local supervision for the past three decades. Like land-use planning
and zoning, n91 it has been driven by distrust of centralized federal direction. n92 2. The Planning Process The
cooperative coastal zone management blueprint is not difficult to read. The CZMA program is voluntary, yet it has attracted almost
unanimous participation. This has been achieved by offering participating states two benefits: money and a
conditional power to block federal decisionmaking. n93 To receive them, states must submit--then implement
and maintain--a qualifying coastal management plan. Funding has never been generous. For all CZMA programs combined,
it has averaged about $ 40 million a year, or a mere $ 1.2 million for each participating jurisdiction. n94 As a result, the second inducement, socalled [*238] "consistency review," n95 has come to serve as the more effective carrot. n96 Once
a state's plan has been
approved, federal coastal officials periodically review its implementation. n97 Enforcement, however, is
limited. Funds may be withheld only if implementation has failed, and then only after a process that can take more than three years to
complete. n98 States, of course, may update their approved coastal zone management plans to meet new challenges, but they are under no
obligation to do so. Federal authorities may not manipulate or withhold grants or other funding as a means of pressuring a state to revise its
coastal plan. n99
The CZMA gives States the authority to reject federal ocean policy- consistency review
Russell 2004
(Robert H., J.D., Harvard Law School. Mr. Russell teaches environmental law in the graduate program at
Tufts University, and has taught energy regulation, environmental law and policy, and property law at
other universities and law schools in the Boston area. He also consults with nonprofit organizations and
government agencies on environmental matters., “COASTAL WIND ENERGY GENERATION: CONFLICT
AND CAPACITIE: SYMPOSIUM ARTICLE: Neither Out Far Nor in Deep: The Prospects for Utility-Scale Wind
Power in the Coastal Zone”, 2004 Boston College Law School, Boston College Environmental Affairs Law
Review, Lexis Nexis)
C. (In) Consistency The
most unusual feature of the CZMA and the one that has drawn the most attention from courts and
commentators is consistency review, its single, clear enforcement mechanism. n134 In brief, consistency review permits a
state whose coastal zone is affected by a federal or federally-permitted project n135 to file an objection,
and thereby either halt the project or force its modification--if the project is found to be incompatible with an
enforceable component of that state's federally-approved coastal zone management plan. n136 Consistency has attracted wide commentary.
n137 Whether it
hands states "veto" power over activities that may harm the coastal zone, or [*247] whether its
effects are more subtle and less predictable, is a matter of continuing discussion. n138 Nonetheless, when adopted in 1972, the
consistency provision represented "a significant innovation." n139 More than three decades later, it
continues to carry symbolic, and potentially real, force. n140 Indeed, responding to a 1984 Supreme Court decision limiting its
scope, n141 Congress in 1990 amended the CZMA to allow states to review the coastal impact of federal actions in federal waters. n142
Consistency is important here because it gives states the power to reject an offshore n143 wind power
facility, even one to be built outside the state's three-mile territorial limit. Although disagreement continues
regarding the scope of the power and its overall utility, n144 in state hands consistency review operates like a one-way ratchet. If a state
does not want to encourage offshore wind, or wants to discourage a particular proposal, consistency
review potentially serves to deflect both the developer's request for federal approvals and a federal
government--or at least a federal agency--that is supportive of renewable energy. n145 On [*248] the other hand, if state
policy seeks to encourage near-shore wind, consistency review is irrelevant; it cannot be used to force a federal agency to license a project. As
for the federal agency itself, consistency is not an option. The ratchet turns only one way. Thus, the CZMA is more than simply non-preemptive;
it engages in a form of reverse preemption. n146 Of course, if a project is opposed by both state and federal officials, the mechanism is not
relevant.
Energy Generic
States are taking clean energy initiatives despite a lack of federal support
Marsden 2013
(William, Postmedia News, “America's revolution threatens Canada”, The Leader-Post (Regina,
Saskatchewan), August 3, 2013 Saturday, Lexis Nexis)
California is planning a $9.5-billion U.S. high-speed train connection that's expected to take hundreds of
thousands of commuters off the highways. In Rhode Island, the U.S. Bureau of Ocean Management put 93,000
hectares of continental shelf up for lease for wind turbines that could produce enough to power upwards of a million
homes. In the greater scope of America's fossil fuel appetite, these clean energy initiatives could be mistaken as insignificant. Yet they
carry all the signs of a quiet revolution gradually emerging across the nation. They are slowly reshaping
the energy landscape in spite of a federal government that remains gridlocked over climate change
legislation. "What we have seen regarding energy policy is that almost all Americans regardless of their political orientation are decidedly
for clean energy future for America," said Edward Maibach, a professor at George Mason University who tracks public opinion on climate
change. His data have given U.S. President Barack Obama and his closest advisers the confidence to go bold on clean energy, and dismiss
projects such as Keystone XL as old economics.
States lead in the context of energy policy
GRUNWALD 2006
(MICHAEL, Wire Services, “Warming up to inconvenient facts; If climate change is real, what are we
willing to do about it?”, The Record (Bergen County, NJ), July 30, 2006 Sunday, Lexis Nexis)
Scott thinks waste reduction and energy efficiency are good for business as well as the Earth. He eventually wants his company to generate zero
waste and use only renewable energy, and he wants his 60,000 suppliers to follow suit. That could drive the climate debate faster than years of
congressional bloviation. And other sectors of corporate America are paying attention to climate as well. The storm-battered
insurance and reinsurance industries are redlining vulnerable coastal areas. U.S. farmers are embracing no-till agriculture in growing numbers.
Even some energy firms are trying to move "Beyond Petroleum," as the BP Global ads say; Entergy Corp. recently joined 12
states in suing
the Bush administration over its refusal to regulate carbon emissions. States are leading the battle
against greenhouse gases, filing lawsuits against the Bush administration's fuel-efficiency and clean-air efforts as well. California,
for example, has proposed strict fuel-efficiency standards for cars sold in the state, and Republican Gov. Arnold
Schwarzenegger wants to reduce the state's greenhouse emissions 80 percent by 2050. As the recent heat wave stoked brownout fears, he also
announced a statewide conservation push, pleading with Californians to use less energy. Ultimately, conservation will have to play a big role in
any emissions cuts; Vice President Cheney has mocked it as a virtuous but ludicrous energy strategy, yet the collective impact of individual
actions could be huge.
Fisheries
Congress has given jurisdiction to the states for fisheries management, the aff
undermines this jurisdiction
Englebrecht ’02 (Erin, professor of law at Evansville, Can Aquaculture Continue to Circumvent the Regulatory Net of the MagnusonStevens Fishery Conservation and Management Act, Emory Law Journal,
http://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/emlj51&type=Text&id=1224, accessed: 7/12/14 GA)
Congress enacted the EFH Provision in response to increasing threats to the nation's fisheries posed by the "continuing loss of
marine, estuarine, and other aquatic habitats"176 and explicitly referenced coastal habitat in state boundaries.177
Congress directed that fishing activities be subject to enforce- able regulations to specifically protect the
essential "spawning" and "breeding" habitat of the nation's fishery species. Such habitat is almost
exclusively found in estuarine and coastal areas, which are entirely within the states' territorial seas. It is
thus Congress's unequivocal intent that all fishing activities adversely affecting all designated EFH, whether in the federal or state zone, are
subject to the substantive mandates of the 1996 EFH Provision
Congress placed jurisdiction over fisheries to the states
Englebrecht, 2002, Englebrecht, Erin, lawyer Ph.D from Emory. "Can Aquaculture Continue to
Circumvent the Regulatory Net of the Magnuson-Stevens Fishery Conservation and Management Act."
Emory Law Journal 3rd ser. 51 (2002): 1187-224. Hein Online. Web. 11 July 2014. CS
Congress enacted the EFH Provision in response to increasing threats to the nation’s fisheries posed by the
‘continuing loss of marine, estuarine, and other aquatic habitats’ and explicitly referenced coastal habitat in state
boundaries. mCongress directed that fishing activities be subject to enforce-able regulations to
specifically protect the essential “spawning and ‘breeding” habitat of the nation’s fishery species. Such
habitat is almost exclusively found in esluanne and coastal areas, which are entirely within the states’
territorial seas. h is thus Congress’s unequivocal intent that all fishing activities adversely affecting all
designated EFH, whether in the federal or statc zone, are subject to the substantive mandates of the 1996 EFH Provision.
Accordingly, if NMFS were to classify aquaculture as fishing,’ then aquaculture activities within state boundaries would be subject to
enforceable conservation measures. Again, Congress’s enactment of the 1996 EFH Provision elevated the significance of NMFS’ determination
for how to c1assi1y aquaculture. Nonetheless, NMFS’ policies on aquaculture with regard to the Magnuson-Stevens Act are not in conformance
with the mandates of the 1996 EFH Provision.
Empirically fish management has operated under a cooperative federalist model –
states are given the majority of control over fisher management in accordance with
federal law – this is distinct from direct federal management of fisheries such as the
plan.
Barstow in 1999(Erik T., University of Maine School of Law, Class of 1998, “AMERICAN LOBSTER
FISHERY MANAGEMENT UNDER THE ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT:
AN ATTEMPT AT COOPERATIVE FISHERY JURISDICTION,” OCEAN AND COASTAL LAW JOURNAL [Vol.
4:113)
The 1996 Magnuson Act amendments post-date the decision to withdraw the Lobster FMP, and therefore, were in no way implicated in the
initial determination. The
amendments are, nevertheless, important in considering the underlying shift to
cooperative management. It is quite likely that passage of the ACFCMA in 1993, and the lobster fishery situation as a whole, served as
an impetus for the 1996 Magnuson Act Amendments. This conjecture is based upon the emphasis in the 1996 amendments on federal and
state cooperative fishery management. This emphasis is particularly evident in the expanded authority of the states to regulate fishing activities
outside of the traditional state waters. On the other hand, the 1996 Amendments have further complicated the transition to ASMFC
management of the lobster fishery by requiring the regional councils to promulgate pro-active management measures for overfished fisheries.
This particular aspect of the 1996 Amendments is addressed at greater length in Part N.A. State authority
to regulate fishing
vessels outside the boundaries of the state was the subject of substantial change. Section 1856(a)(3) of the
Magnuson Act, was modified significantly and now articulates in the positive a state's authority to regulate vessels outside of its boundaries
given specific circumstances.27 The first set of circumstances requires, as with the pre-Amendment version, that the vessel be registered under
the laws of the state.' Furthermore, one of two additional requirements must be met: Either (1) no
fishery management plan or
pertinent Federal regulations exist with regards to the fishery in which the vessel is engaging; or, (2) the
laws and/or regulations of the state must be consistent with the federal FMP or regulations applicable
to the fishery in which the vessel is operating. 9 The 1996 Amendments provided a second significant
expansion of potential state authority over a fishery that extends into federal waters. States may now
regulate fishing vessels outside the boundaries of the state when the management plan, for the fishery
in which the vessel is operating, "delegates management of the fishery to a State and the State's laws
and regulations are consistent with such fishery management plan. '30 While not specifically addressed in the
provision, presumably the FMP could simply delegate management authority to various states without providing an underlying framework of a
specific management plan. No standards for measuring consistency of state laws and regulations would exist in such a situation. 31 If the
Secretary determines certain state measures are inconsistent with the relevant FMP,th e Secretary must notify the state and the appropriate
Council and then provide the state with the opportunity to correct the inconsistency.32 Failure by the state to correct such inconsistencies
would result in suspension of the state's authority until corrective measures were taken and approved by the Secretary and the Council.33
Essential to the analysis under either section 1856(a)(3)(A) or (B), is the concept of "consistency" of state regulations. Any state regulation
which either regulates vessels, licensed under its law, or which is an exercise of authority delegated to the state by a federal FMP, must be
consistent with any existing FMP for the targeted fishery. Congressional hearings shed light on the primary intent underlying this requirement
and the extent to which states may regulate consistently with existing federal regulations. A colloquy between Senator Snowe of Maine and
Senator Stevens of Alaska, the author of the amendment, is particularly interesting as Senator Snowe specifically mentioned Maine's efforts in
the area of lobster management. Senator Snow, after delineating several of Maine's specific lobster regulations, questioned whether Maine's
regulations, that were more stringent than the regulations promulgated pursuant to the federal lobster management plan, would continue to
be considered "consistent" with the Lobster FMP, under the intent of the amendment's author. 4 Senator Stevens responded affirmatively,
stating that his amendment would protect "the existing authority of States to impose more stringent regulations which are not inconsistent
with a management plan on its vessel in the Federal zone."3' Senator Stevens continued by noting that more stringent state regulations which
were considered to be consistent prior to the amendment would continue to be considered consistent.36 Thus, a state may, consistent with the
Congressional intent underlying the amendment, impose more stringent regulations over federal waters pursuant to authority vested by the
amendment than are imposed by the federal regulations. These
two changes to state jurisdiction under the Maguuson
Act reflect the underlying movement towards cooperative federal-state jurisdiction. Indeed, they
evidence support for a return of fishery management authority to the states as exemplified by the
lobster fishery scenario. The amended Act, however, provides for such delegation to the state to be executed within the parameters of
the Magnuson Act. A federal FMP can delegate management authority to a state, but require certain
minimum standards by providing for them within the framework of the FMR In this manner the federal
government may provide goals and guidelines for management of a particular fishery while leaving the
specific methods to state and even local determination. An interesting question is whether this approach would have been
an effective alternative for lobster fishery management rather than withdrawal of the FMP in favor of ASMFC management.
Lobster stock rebuilding programs started at the federal level have failed – this
resulted in a transition to state control over fishery management.
Barstow in 1999(Erik T., University of Maine School of Law, Class of 1998, “AMERICAN LOBSTER
FISHERY MANAGEMENT UNDER THE ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT:
AN ATTEMPT AT COOPERATIVE FISHERY JURISDICTION,” OCEAN AND COASTAL LAW JOURNAL [Vol.
4:113)
Central to proposed Amendment Five, and of greatest significance, was the comprehensive stockrebuilding program. This provision of the proposed Amendment is also central to the topic of this Comment, as the program sought to
better recognize the regionalized needs and problems of the lobster fishery, and attempted to induce cooperation among the various states
and the federally created NEFMC. Proposed
Amendment Five would have created a framework process to
institute a lobster stock rebuilding program in the EEZ with the intent that the several states would introduce similar
measures in state waters. 75 Implementing regulations recognized four regions: Area 1 was to be the near shore EEZ waters of the Gulf of
Maine; Area 2 would be the near shore EEZ waters of Southern New England; Area 3 was the offshore waters in the EEZ; and, Area 4 would be
the near shore EEZ waters of the middle Atlantic. 76
This regional approach to conservation and management was
intended to better address the specific needs of each area and respond to the various environmental
and economic forces unique to each region. Tailor-made management programs for each area would, it was hoped, foster
stronger regional support.'" The stock rebuilding framework also created Effort Management Teams (EMT).'78 The EMTs were a unique, and
somewhat ingenious, mechanism to ensure regional input into lobster fishery management. An EMT was created for each of the four regions
noted above and charged with the responsibility of making recommendations for stock rebuilding to the NEFMC. 179 EMTs were to consist of a
common, core group of NMFS, state, and NMFC representatives "0 in an attempt to encourage action and compliance by including all
interested players in the lobster fishery. Furthermore, each EMT was required to "consult with lobster fishermen operating within each
Management area.., with the intent of reaching consensus regarding the specific measures to be applied in each area.''. A deadline of January
20, 1995 was set for the submission of the EMT recommendations to the NEFMC. s2 The Council was required to adopt or modify the
recommendations and then submit to the Secretary corresponding management measures in compliance with the Lobster FMP objectives by
July 20, 1995.83 Failure of the NEFMC to meet this deadline would allow the Secretary of Commerce to determine whether a secretarial
amendment to the FMP was needed. " While the various EMTs submitted their recommendations by the set deadline, the NEFMC failed to
meet the July 20th deadline due to the unwillingness of state directors from Maine, New Hampshire, Rhode Island, and Connecticut to
implement measures in support of a Council amendment.185 The NMFS had previously indicated to the NEFMC that its support of an
amendment implementing stock rebuilding measures, such as proposed Amendment Five, was predicated on state participation in the
administration of the amendment and implementation of complimentary state programs.'86 The
failure of the states to reach
consensus on complimentary programs, and the resulting lack of support of the NMFS sounded the
death knell for Amendment Five. The failure of Amendment Five is of great significance in most part due
to what it attempted to reach; a system of co-operative management between the federal agencies, the
NEFMC, and the relevant state parties. Amendment Five would have required the states to rely on the federally
created NEFMC for its directives and for the implementation of local recommendations, a relationship
not without antagonism. Furthermore, a lack of initiative for agreement and consequences for failure, as between the states, was
reflected in the inability of Maine, New Hampshire, Rhode Island, and Connecticut to adopt measures in support of the NEFMC Amendment.
The model of fishery management based on power centered with the federal government and
siphoned down to a state and local level had failed for the lobster fishery. It became apparent that a
paradigm of management was necessary wherein the states, holding a vested interest in the lobster
fishery, more directly wielded regulatory and jurisdictional power.
Monitoring
Coastal states have the jurisdiction to develop ocean management programs
Heimes 10 (Rita S., “Ocean Management & Planning in the United States: From Competition to Cooperation”, Annuaire de Droit
Maritime et Océanique, Forthcoming, http://mhk.pnnl.gov/sites/default/files/publications/Heimes_2010.pdf)
Many coastal states have coastal management programs that prepare Coastal Management Plans, administer federal
grants under the CZMA, and coordinate policies with federal agencies. These programs have varying degrees of responsibility
and authority, and are housed within different governmental departments depending on the state.72
Through these programs and targeted state legislation, states have been engaging in various forms of
“marine zoning” and area planning efforts for over twenty years,73 and the idea of ocean zoning is hardly novel.74 In
the second half of this decade, however, some states’ leading efforts to comprehensively map and zone in three dimensions their
ocean waters, including in some instances overlapping federal waters, have set a precedent for other coastal states and even the federal
government to follow. This article describes only three such programs as leaders in state-level coastal and marine spatial planning.
States have the right to develop ocean monitoring systems—Massachusetts proves
Heimes 10 (Rita S., “Ocean Management & Planning in the United States: From Competition to Cooperation”, Annuaire de Droit
Maritime et Océanique, Forthcoming, http://mhk.pnnl.gov/sites/default/files/publications/Heimes_2010.pdf)
The Massachusetts Ocean Management Plan represents a model ocean planning process on at least three
levels: It was developed in a relatively short period of time with involvement from multiple
stakeholders; it
is backed with the hefty authority of a powerful cabinet-level position representing many key
state agencies; and its scientific basis was supported initially, and will continue to be informed in the future, pursuant to a major grant
from a private foundation that coordinated many participants. In 2003, the Massachusetts governor appointed a task
force to investigate ocean use, trends and governance mechanisms, and propose changes in legislation
and ocean administration.114 Following its report, Waves of Change, 115 the Massachusetts legislature passed the
Massachusetts Ocean Act of 2008.116 The statute directed that the Secretary of the Executive Office of Energy and
Environmental Affairs (EEA) develop an integrated ocean management plan.117 The Act was signed on 28 May, 2008; the
final report was due by 31 December, 2009.118 To assist the Secretary of EEA with developing the plan, the Ocean Act created an ocean
advisory commission comprised of state legislators; directors of the coastal zone management, environmental protection, and marine
resources commissions; and several other members of the public appointed by the governor, including one representing commercial fishing
interests and one with knowledge of offshore renewable energy development.119 The Ocean Act also established “an ocean science advisory
council to assist the secretary in creating a baseline assessment and obtaining any other scientific information necessary for the development
of an ocean management plan.”120 In
parallel with these official and regulatory developments, a powerful coalition of
organizations joined together to form the
Massachusetts Ocean Partnership (MOP).121 This independent “public-private partnership” was funded by the Gordon and
motivated scientists, policymakers, lawyers, fishermen and environmental
Betty Moore Foundation through 2011 “to convene diverse stakeholders and develop a Five Year Strategic Plan to advance Ecosystem-based
Marine Spatial Planning” in Massachusetts.122 The MOP worked closely with the EEA in preparing and publicly vetting the Ocean Management
Plan. The partnership between EEA and MOP proved effective during plan development and continues during plan implementation. While EEA
was responsible for development of the plan pursuant to the legislative mandate of the Oceans Act (including management of the plan
development process and drafting of the plan itself), MOP funding and staff provided EEA with necessary support. For example, MOP funding
helped EEA maximize the public involvement goal (videos of workshop presentations were made available on-line). Additionally, MOP
funded important policy analyses (e.g., a review of other ocean management efforts from around the world to identify a potential
frameworks for Massachusetts) and development of derived data products (e.g., transformation of raw Vessel Monitoring
Systems data), and continues to help EEA address identified priority science needs (e.g., characterizing spatial patterns of recreational
activity in Massachusetts waters).123
States have the ability to make ocean monitoring programs—California proves
COCMP No Date (Coastal Ocean Currents Monitoring Program, http://www.cocmp.org/)
History: In
2005, the California State Coastal Conservancy and the State Water Resources Control Board invested $21 million from
the infrastructure to map ocean surface currents. The California
Coastal Ocean Currents Monitoring Program (COCMP) uses a suite of technologies, high-frequency radar in
particular, to track ocean surface currents in near real-time. The 54 land-based stations now span the California coastline,
voter-approved Propositions 40 and 50 funds to build
providing anyone with access to the Internet the ability to track past and near real-time movement of California’s coastal waters, including any
floating pollutants.
COCMP is an investment by the State of California to better manage our ocean and
coastal resources, and to ensure a healthy ocean environment for current and future generations.
Pollution/Conservation
States have authority over issues of pollution- 2011 EPA ruling proves
US Official News 2013
(US Official News, “Kentucky: Attorney General Conway Announces Bipartisan Brief Opposing CrossState Air Pollution Regulations”, November 16, 2013 Saturday, Lexis Nexis)
Department of Commonwealth, The State of Kentucky has issued the following news release: Attorney General Conway announced today that
Kentucky has joined eight other states in a major brief filed in the United States Supreme Court opposing
the U.S. Environmental Protection Agency’s new rule on cross-state air pollution. The amicus brief argues that EPA
exceeded its authority under the federal Clean Air Act when the agency promulgated a rule in 2011
announcing new air pollution cuts and imposing federal implementation plans on states. The brief argues the CAA
requires the EPA to give states an opportunity to decide how to meet new air pollution standards. The
brief was signed by a bipartisan group of attorneys general representing the states of West Virginia, Arizona, Arkansas, Kentucky, Missouri,
Montana, North Dakota, South Dakota and Wyoming. It was filed in support of 15 other states, as well as industry groups and labor
organizations, who sued EPA on this issue in 2011. In
August 2012, the U.S. Court of Appeals for the D.C. Circuit struck
down the regulation, saying that it "exceeds the agency’s statutory authority." The Supreme Court agreed to
review the rule earlier this year. "Other state attorneys general and I are urging the nation’s highest court to uphold the appellate court
decision and leave
important questions about how states should meet new air pollution standards at the
state level, as clearly spelled out in the Clean Air Act," General Conway said. According to the court of appeals’ opinion,
"EPA’s rule defines emissions reduction responsibilities for 28 upwind States based on those States’ contributions to downwind States’ air
quality problems. The
Rule limits emissions from upwind States’ coal- and natural gas-fired power plants, among other
sources. Those power plants generate the majority of electricity used in the United States." The court of appeals’ opinion held
that EPA crossed the Clean Air Act’s "federalism bar" when EPA attempted to take away the states’ right
to decide how to make cuts in air pollution within their borders. As the court explained, "a State may decide to impose different emissions
limits on individual coal-burning power plants, natural gas-burning power plants, and other sources of air pollution, such as factories, refineries,
incinerators, and agricultural activities." The parties to the case will present oral arguments before the Supreme Court in December. A decision
is expected by next June.
Three Miles
The states control three miles of sea off of their shoreline
Resources Agency of California 95 (The Resources Agency of California, “California’s Ocean
Resources: An Agenda for the Future”, July 1995, http://resources.ca.gov/ocean/html/chapt_3.html)
Debate over who controls and manages the waters and resources found offshore the United States began in the late 1700's and continues to
this day. Issues in this debate include key federal and State relationships which must be better understood for effective management of
California's ocean resources. ¶ Soon
after the founding of the United States, the newly formed federal
government asserted sovereignty over a territorial sea extending three miles from the coast. Moreover,
the coastal states asserted the ability to develop ocean resources out to three miles. Over the past 45
years, however, a number of events have occurred which drastically modified management of the
offshore area. In 1947, the United States Supreme Court upset what had appeared to be settled law and determined that
the United States, rather than coastal states, had paramount rights over the nation's coastal waters and
resources [United States v. California, 332 U.S. 19 (1947)]. This decision was surprising to coastal states, and set the stage for a
debate resulting in the enactment of the Submerged Lands Act of 1953 (granting coastal states
ownership of the lands and resources out to three nautical miles from shore). Also enacted was the
Outer Continental Shelf Lands Act of 1953, establishing federal jurisdiction over the resources beyond
three nautical miles from shore and creating a legal process for developing those resources.¶ In the early
1970's, Congress recognized that activities beyond states' control and jurisdiction could significantly affect coastal states. Congress
enacted the Coastal Zone Management Act (CZMA; 16 U.S.C. 1451 et seq.) in 1972, providing a crucial link
between coastal states and federal activities, or federally permitted activities, which occur just beyond
state waters. As an incentive for states to develop management plans for their coastal resources, the
Congress granted states the ability to review, and in some circumstances stop, federally permitted
activities which "affect" the resources of the coastal zone, if those activities are not consistent with the
federally approved state coastal program. However, the CZMA allows the U.S. Department of Commerce
to override a state's objection to a federal permit activity if the Secretary for Commerce finds that the
objection is not supported by the approved coastal management program, or the activity is otherwise
required in the interests of national security.¶
The states control three mile off of the coastline
Marine Conservation Institute ND (Marine Conservation Institute, “Economic Importance”, ND,
http://easybib.com/cite/eval?url=http%3A%2F%2Fwww.marineconservation.org%2Fmedia%2Fshining_sea%2Ftheme_economics.htm)
The majority of the US population lives near the coast, not just because the ocean is beautiful but because the ocean is a
major hub of economic activity. The sea provides us with food and livelihoods along every coast of the United
States and its territories. Commercial, recreational, and subsistence fisheries bring in many millions of
pounds of fish -and dollars- each year to coastal communities. People also use the ocean and shoreline for boating,
sightseeing, vacationing, and other recreational activities.¶ Despite the development of planes, trains, and automobiles, shipping is still the
major means for transporting goods internationally, and many cities rely on their ports as a major source of revenue. The ocean is also valued
for the natural resources that lie beneath the ocean floor. In the Gulf of Mexico alone there exists billions of dollars' worth of oil and natural
gas.¶ ¶ Exclusive Economic Zone (EEZ)¶ As
on land, the sea is crossed by boundary lines drawn by people for
exploration and use of resources. Generally speaking, the water stretching 12 nautical miles directly off
the shoreline is considered sovereign territory of the adjoining country, except that foreign ships (military
and civilian) are allowed to pass through it. The first 3 miles off the coast are state waters, meaning that
each US state manages and controls use within their own region.¶ Beyond the territorial sea, is the area
where countries have the right to manage and control marine affairs and resources, such as fishing,
mineral extraction and oil drilling. This area of ocean, extending 200 nautical miles from a country’s
coast, is called the Exclusive Economic Zone (EEZ).¶ ¶ Exclusive economic zone (EEZ) is an area of sea up to 200 nautical miles
from a country’s coast.¶ ¶ The USA has jurisdiction over quite a lot of the world’s ocean. For example, the US EEZ surrounding the islands of
Guam and the Northern Marianas, roughly 5,600 miles from the West Coast of the USA, is home to the Mariana Trench—the deepest place in
the ocean. The US EEZ also contains water surrounding America Samoa in the Southern Hemisphere, portions of the Arctic Sea, waters off the
Virgin Islands and the Puerto Rico Trench in the Caribbean Sea. In total, the USA has jurisdiction over more of the ocean than land. In fact, the
USA has jurisdiction over more ocean than any other country, an area of 4,382,646 square miles (territorial waters plus EEZ).
Link
Aquaculture
Aquaculture is being regulated by states now- even open ocean aquaculture is a state
interest because of spillover effects
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
The newest ocean development projects promise an expanded range of benefits, many of which have no historical precedent. One example is
located offshore of California, where the Grace Mariculture Project is underway. n22 The project uses a retired oil rig, Platform Grace, located
10.5 miles off the coast of Ventura, to cultivate and rear marine organisms (primarily fish) for human consumption. n23 Aquaculture
projects such as this are generally being promoted to reduce the pressure on natural stocks of fish and to fill
the widening gap between supply and demand of fish as a source of protein for human diets. n24 Ocean aquaculture proponents
advocate use of offshore areas as a way to avoid near-shore conflicts and significant coastal development. n25 As
explained by the Grace Mariculture Project, "by moving operations to an offshore environment, the Grace Mariculture [*1362] Project is the
next step in the research and development of sustainable aquaculture." n26 But this "next step" is not necessarily benign. Several
environmental concerns about the advent of open-ocean aquaculture - sea farming occurring far from shore - have
impeded economic development of aquaculture in the United States and provide fuel for additional
state-federal conflicts. n27 These concerns include escape of reared fish, the spread of disease, and
concentration of fish wastes. n28 In light of these unresolved scientific questions about the environmental impacts of
open-ocean aquaculture, some legislators representing state interests have threatened to impose an openocean aquaculture moratorium, much like the moratorium prohibiting oil drilling in regions offshore California and Florida. n29
Furthermore, states have begun to move ahead with comprehensive statutes to address environmental
concerns, which may provide additional constraints on offshore aquaculture developments to the extent
that any projects utilizing federal offshore areas will necessarily need to pass through state-governed offshore areas. n30
CZMA
The federal government must comply with the CZMA and consult states when
operating in their waters
SALCIDO 2010
(Rachael E. Salcido 2010. Professor Rachael Salcido is a scholar of environmental and natural resources
law, with particular expertise in ocean and coastal law and ecosystem restoration. Her articles have
appeared in prominent law journals and she is an active member of the Rocky Mountain Mineral Law
Foundation. Law Applicable on the Outer Continental Shelf and in the Exclusive Economic Zone Source:
The American Journal of Comparative Law, Vol. 58, Supplement: Welcoming the World: U. S. National
Reports to the XVIIIth International Congress of Comparative Law pp. 407-435)
A second incentive for state participation in CZMA planning is known as the "consistency requirement."
The federal government must seek a consistency determination from the state coastal management
agency when authorizing activities if it is reasonably foreseeable that the activity "will affect any natural
resources, land uses, or water uses" in the coastal zone of a state.31 The CZMA pro vides that federal
agency activities shall be carried out "consistent to the maximum extent practicable with the
enforceable policies" of the state's plan.32 The consistency requirement also applies when a pri vate party or other non-federal
actor seeks approval from a federal agency for an activity.33 Finally, outer continental shelf plans for exploration,
development, or production of oil and gas are also subject to a consistency determination. This appears
both in provisions of the CZMA34 as well as in OCSLA,35 which specifically regulates outer continental shelf oil and gas development.
In this manner states have some influence over activities beyond their immediate offshore boundaries.
Tension between the federal government and states has been greatest in the context of oil and gas
development offshore,36 but emerging uses of the submerged lands and waters of the EEZ have spurred
new con flicts between state and federal actors.
Energy
The federal government must consult the states and they have the power to reject
renewable energy projects
Griset 2011
(Todd J., practices law with Preti Flaherty's Energy and Telecommunications Group from the Augusta,
Maine office. His clients include renewable and other energy developers, industrial and forest products
manufacturers and commercial entities, “HARNESSING THE OCEAN'S POWER: OPPORTUNITIES IN
RENEWABLE OCEAN ENERGY RESOURCES”, Marine Law Institute, University of Maine School of Law,
Ocean and Coastal Law Journal, Lexis Nexis)
C. States' Roles In addition to this complex web of federal regulation, states
retain considerable authority regarding offshore
renewable energy projects in their adjacent waters. Each state has broad discretion to regulate such projects;
the resulting lack of uniformity of state regulation adds yet another layer of regulatory risk to projects. Reflecting federalism-- the
balance between states' rights and federal rights-- the federal Coastal Zone Management Act (CZMA) n124 requires
applicants for federal licenses or permits affecting a state's costal zone to obtain a state certification
that a proposed project is consistent with that state's coastal zone management program. n125 If a state
refuses to issue such a consistency certification, the Secretary of Commerce may overrule the state and authorize the
issuance of a permit only if the Secretary concludes after a notice and comment period that the proposed activities
are either consistent with the objectives of the [*416] CZMA, or are "otherwise necessary in the interest
of national security." n126 Thus, the CMZA provides states with a powerful tool in deciding whether to allow
the development of offshore renewable energy projects. Furthermore, electricity generated by an offshore
project--even one sited in federal waters--must generally be transmitted to shore for distribution and
consumption. In practical terms, this requires crossing state-jurisdictional coastal zones. n127 This creates a
significant role for states in reviewing and permitting the transmission cables needed to carry the power
produced at sea to consumers on land, both in leasing subsurface rights for laying cable and in reviewing the utility aspects of the
proposed transmission infrastructure. Even where a state's authority is limited to reviewing the onshore transmission development associated
with an offshore energy project, in practice, states'
evaluations of these transmission aspects are often informed by the
to the fate of the project. n128 States may
also affect the fate of projects through their regulation of utility activities. Through the exercise of their rights to
regulate utilities and establish utility retail rates, states generally have jurisdiction to approve power purchase
agreements between offshore energy project developers and utilities. Securing approval of such power
purchase agreements is a critical step in any project's successful development, as developers are generally reluctant to
understanding that the transmission and generation components are each integral
incur the major capital costs required to develop an offshore project without the certainty of an offtake agreement for the power to be
produced. n129 While such state review is generally conducted by public utilities commissions or their analogues, experience has shown that
issues beyond utility ratemaking, such as aesthetics or environmental considerations, often end up
being raised in these utility forums. For example, the Massachusetts Department of Public Utilities heard extensive testimony on such
issues in the context of its review of the proposed power purchase agreement between the utility provider National Grid and Cape Wind. n130
Because of [*417] the power reserved to states, such issues may play a large role in the ultimate success
of renewable ocean energy projects. This state regulatory role rests on top of the multiple layers of federal regulation described
above, adding another layer of regulatory complexity.
Federal Ocean Policy
State consultation over federal ocean development is key- it balances state and
federal interests
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
Unlike other federal laws adopted during this time that directly prescribed certain state obligations, the
approach of the CZMA was
to foster cooperation between federal, state, and local governments by purely voluntary means. n148 Congress
recognized the concurrent interests of states and the federal government in the coastal zone and sought a
governance mechanism that would capitalize on this interdependence. n149 The CZMA acknowledged that states have
[*1382] jurisdiction over the shoreline out to three miles offshore, allowing them to manage sensitive
coastal areas such as estuaries, wetlands, and coastal development that are integral to marine ecosystem sustainability. n150 The
CZMA encouraged state creation of coastal management plans (CMP) by offering two important incentives: (1)
matching grants to support state coastal planning and management and (2) a consultation role in shaping
development projects in federally managed areas based on the state's coastal management plan. n151 In
adopting this voluntary approach, based on financial incentives and a consultation role in federal project developments, the
CZMA created the current cooperative federalism framework. n152 As NOAA recently characterized the consultation
aspect of the CZMA, "these "consistency' requirements provide an avenue for states to participate in or
influence management of ocean resources under federal jurisdiction." n153 The consistency
determination is the heart of conflict resolution in the CZMA. A federal project must be consistent with
enforceable policies of a federally approved state CMP, developed and implemented by the coastal
state. n154 By statute, state CMPs must incorporate specified objectives, such as consideration of national interests. n155 Almost all
coastal states have approved coastal zone [*1383] management plans and receive funding from the federal
government to implement them. n156 From an environmental standpoint, there are at least two shortcomings of the current consistency
process. From the start, environmental considerations inherent in particular offshore or coastal projects have not been altogether fleshed out
prior to state consistency findings. n157 States and
environmental groups have often complained that
environmental impact assessments are not complete by the time the state must determine whether a
reviewed project application is consistent with the enforceable policies of a state's CMP. n158 Second, the
federal government encouraged state planning for areas under state jurisdiction but did not undertake
similar planning for offshore areas. n159 There is no comprehensive EEZ plan discussing the feasibility or
desirability of particular developments in federal waters. Importantly, as noted, the consistency determination
is a vital component of the CZMA, and anything that detracts from its full and effective
implementation necessarily erodes the "cooperative federalism" aim of the statute. But if consistency
determinations are not meaningful because they are compromised by a lack of needed information (either environmental impacts or future
development plans), these policy goals are also undermined. This contradiction is inherent in the stated goals of the CZMA, which initially set
out to "protect, preserve and develop" the coastal zone but which was frequently amended, and now includes (in addition to encouraging
state-federal coordination, protection, and restoration) the following: Priority consideration being given to coastal-dependent uses and orderly
processes for siting major facilities related to national defense, energy, fisheries development, recreation, ports and transportation, and the
location, to the maximum extent practicable, of new commercial [*1384] and industrial developments in or adjacent to areas where such
development already exists.
Increased federal action in ocean policy causes state backlash and power struggles.
Juda 2006 (Lawrence, Department of Marine Affairs, University of Rhode Island, “The Report of the U.S.
Commission on Ocean Policy: State Perspectives”, Coastal Management, Jan-Mar2006, Vol. 34 Issue 1, p1-16. 16p,
EBSCOHost, Date Accessed: 10 July 2014)
Regional Approaches to Ocean Governance A notable recommendation made by the US. Commission on Ocean Policy calls for the creation of
Regional Ocean Councils (ROCs) as a device to overcome the jurisdictional administrative, and financial limitations of individual states in their
approach to ocean governance. The response of the governors to this recommendation generally indicated recognition of the need for regional
cooperation, but expressed very significant wariness and even some outright opposition to the creation of such councils. A
number of
governors viewed the creation of ROCs as a potential challenge to the role of individual states or as a
threat that could undermine existing regional mechanisms. Governor Murkowski of Alaska asked for major changes in the
Commission's recommendations concerning ROCs, warning that it "would be unacceptable for any council or board to
reduce the state's authority for management of our jurisdictional waters or lands" and indicated that he
would be prepared to “protect the state's sovereign interests”. Florida maintained that ROCs were not needed to
improve interstate and regional cooperation and was concerned that, if created, ROCs might seek to impose federal or regional
requirements on individual states that would preempt state or local governance. Michigan expressed cautious
support for the creation of ROCs but warned that it was the states that would have to retain authority over water use and
management of coastal resources. Several states expressed concern over the potential duplication of roles that might occur should
ROCs formed and pointed to existing regional mechanisms such as Regional Fisheries Management Councils (RFMCs) and regional
environmental efforts such as the Gulf of Maine Program, the Chesapeake Bay Program, the Gulf of Mexico Program, and the National Estuary
Program. What exactly would be the nature and role of the proposed new ROCs? Would the ROC process be mandatory or recommendatory?
What authority would the ROCs have? How would the ROCs relate to the RFMCs and other extant regional organizations? Who would be
represented on the ROCs? Such questions and the comments of the
states demonstrated fears that but another layer of
bureaucracy was being established, that ROCs would interfere with on-going regional efforts, and that they
would place new, additional demands on the states. It is apparent that efforts to establish the envisaged ROCs will require
further and careful consideration of their nature, roles, and relationships to on-going regional programs.
Fisheries
Federal fishery regulation pre-empts state regulatory efforts.
Glicksman in 2006(Robert, George Washington University Law School, “From Cooperative to
Inoperative Federalism: The Perverse Mutation of Environmental Law and Policy,” 41 Wake Forest L.
Rev. 719)
EPA is not the only federal agency whose organic statutes and implementing regulation have had
preemptive effect. In one case, for example, the D.C. Circuit concluded in affirming the district court’s denial of a preliminary injunction
that a rail carrier was substantially likely to succeed in its argument that regulations issued by the Department of Transportation under the
Federal Rail Carrier Safety Act358 preempted more stringent regulations adopted by the District of Columbia that restricted the transportation
of hazardous materials by rail near the U.S. Capitol Building.359 Some state and local efforts to minimize the dangers posed by nuclear waste
also have fallen by the wayside based on the preemptive effect of the Atomic Energy Act.360 The
courts have found that
legislation governing management of the federal lands preempts some state and local environmental
regulation. The Eighth Circuit, for example, held that the General Mining Law preempted a county ordinance prohibiting the issuance of
new permits for surface metal extraction in the national forests.361 In another case, the court held that the Magnuson Fishery
Conservation and Management Act362 preempted state regulations that prohibited the use of gill nets
to take rockfish in federal waters.363
Fishery management is a proving ground for federalism – it has empirically been
devolved to state regulation in cooperation with federal entities.
Barstow in 1999(Erik T., University of Maine School of Law, Class of 1998, “AMERICAN LOBSTER
FISHERY MANAGEMENT UNDER THE ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT:
AN ATTEMPT AT COOPERATIVE FISHERY JURISDICTION,” OCEAN AND COASTAL LAW JOURNAL [Vol.
4:113)
Fishery management has become a proving ground of this regulatory reform and the call for return of
power to the states. In 1996 the Atlantic lobster fishery became the target of this emerging federalism.
Lobster fishery management, it is contended, is a prime example of a federal regulatory scheme that is better suited to state management. As a
result, in late March 1996, the National Marine Fisheries Service (NMFS) an-nounced its intention to withdraw approval of the federal Fishery
Management Plan for the American Lobster Fishery (Lobster FMP) and implementing regulations.3 Conservation
and management
of the lobster fishery, proposed the NMFS, could be managed by the states through the Atlantic States
Marine Fishery Commission (ASMFC).4 The NMFS called upon the ASMFC to further develop its lobster
coastal management plan (CMP) and to develop regulations under the authority of the Atlantic Coastal
Fisheries Cooperative Management Act (ACFCMA).5
Federal regulation over fisheries creates tension between the federal and state
government – could be construed as a constitutionality issue.
Barstow in 1999(Erik T., University of Maine School of Law, Class of 1998, “AMERICAN LOBSTER
FISHERY MANAGEMENT UNDER THE ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT ACT:
AN ATTEMPT AT COOPERATIVE FISHERY JURISDICTION,” OCEAN AND COASTAL LAW JOURNAL [Vol.
4:113)
The second issue that grows from this balance of power inherent in the cooperative jurisdiction of the
ACFCMA pertains to the Secretary of Commerce's powers. Under the ACFCMA the Secretary has enlarged powers in the state
waters of the ASMFC states. The ACFCMA grants the Secretary of Commerce authority to take action within state waters which is
likely to raise concerns of state sovereignty. The most significant power invested in the Secretary is the
ability to impose a moratorium on fishing in the targeted fishery in the waters of a state that is deemed
out of compliance with the ASMFC.245 Violation of a moratorium placed on a fishery in a state's territorial sea may lead to federal
civil and/or criminal penalties.2' Obviously, the imposition of a moratorium by the federal government on state
waters, at the very least, gives rise to adversarial posturing between the penalized state and the federal
government that is the antithesis of the cooperative environment that the ACFCMA seeks to promote. Furthermore, it
is likely to create tension between the penalized state and the other ASMFC states that, as is discussed in the
following paragraph, must determine non-compliance. Both levels of animosity would likely inhibit future development
of management and conservation measures. Additionally, and perhaps more interesting from a legal standpoint, is the
potential implication of the Tenth Amendment. State control over and responsibility for fishery management in state
waters is well established.247 A Secretarial moratorium on state waters arguably is a federal
impingement of state sovereignty and rights as guaranteed by the Tenth Amendment to the United States
Constitution.248 In a situation where a Secretarial imposed moratorium were to take place pursuant to the lobster management plan
developed by the ASMFC, it is probable, absent quick remedial efforts by the state, that such a moratorium would be challenged on Tenth
Amendment grounds. Congress has
historically been able to exercise broad regulatory power over fishery
management pursuant to the Commerce Clause, which would weigh in favor of constitutionality.
Furthermore, coupling Commerce Clause power with the contingent nature of the Secretarial authority under the ACFCMA provides greater
support for the Act in the face of a Tenth Amendment challenge. The Secretary exercises the authority to impose the moratorium, but only
upon the finding of state non-compliance by the Commission.249 The Secretary of Commerce does not determine whether or not a state has
failed to implement an ASMFC management plan, this is done by the Commission. Thus, ASMFC states monitor the efforts of partner states and
report non-compliance to the Secretary in order to seek responsive action." Only after receiving notification from the Commission can the
Secretary review the determination of non-compliance"1 and then impose a moratorium if necessary."2 Finally, the states, acting through the
Commission, can withdraw the determination of non-compliance upon finding that the offending state has taken remedial measures, and notify
the Secretary of such withdrawal. z3 While the punitive measures are indeed imposed by the federal government, via the Secretary of
Commerce, the ability to do so is contingent upon action by the Commission, comprising fellow states entered into under a voluntary interstate compact. While not dispositive of the constitutional issue of the Tenth Amendment, it certainly would impact a court's analysis of the
issue. Analysis of the Tenth Amendment implications in the ACFCMA could constitute a complete article in and of itself and is well beyond the
scope of this Comment. 4 It
suffices, for purposes of this Comment, to identify the issue and acknowledge it is a
constitutional challenge likely to be resolved only in a court of law. Certainly, should the matter arise in
the context of litigation, the outcome will have a profound effect on future attempts for state and
federal cooperative jurisdiction in fishery management and conservation.
Liquid Natural Gas
States are regulating liquid natural gas facilities now- federal regulations violate state
rights
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
The development of Liquefied Natural Gas (LNG) terminals is also making headlines as controversial in
coastal areas. For example, the Broadwater LNG Project is a proposed floating storage and regasification
unit, which will sit in the Long Island Sound. n51 The proposed site will be nine miles from the nearest Long Island
shoreline and eleven miles from the nearest Connecticut shoreline. n52 However, due to state and citizen resistance, the
Broadwater project may ultimately lead to litigation. n53 LNG has become an increasingly sought fuel for domestic uses
such as heating and cooking. n54 Imports of LNG [*1366] had previously occurred at only a handful of sites nationally, and now the federal
government is stepping up efforts to facilitate increased supply. n55 These efforts have led to
"stalemates" over LNG facility siting, where state and local agencies have sought to block new
terminals on or adjacent to the shoreline. n56 The EPA of 2005, as discussed further in Part IV.C, sought to move
past this impasse, but efforts thus far have not succeeded, and state and local governing bodies have
begun to adopt additional measures in hopes of preventing LNG development in their jurisdictions. n57
While the feds have authority on LNG stations- states still must be consulted and get
input on project selection
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
Congress took a significant step toward increasing LNG distribution by preempting state jurisdiction over
the siting of LNG facilities. n232 The amendments define "LNG terminal" to include "all natural gas facilities located onshore or in
State waters." n233 Congress provided for exclusive authority to approve LNG siting offshore or in the coastal
zone by the Federal Energy Regulatory Commission: "The Commission shall have the exclusive authority to approve or deny
an application for the siting, construction, expansion, or operation of an LNG terminal." n234 However, the EPA of 2005 also
provided that states still play a role in approvals through the CZMA consistency provisions, the Clean
Water Act, and the Clean Air Act. n235 Therefore, although states cannot block the federal government
from choosing a site along its coastline for a LNG terminal, they will have an opportunity to weigh in on
whether the project is consistent with enforceable policies of their CMP and will have an opportunity to
shape the project details through permitting of the facility for water quality and air quality impacts. n236
Monitoring/Management
Offshore Wind Power
Federal action in offshore wind meets strong local opposition – Cape Wind Project
proves.
Powell 2012 (Timothy H., J.D. Candidate, Boston University School of Law, 2013, “Revisiting Federalism
Concerns in the Offshore Wind Energy Industry in Light of Continued Local Opposition to the Cape Wind Project”,
Boston University Law Review. Dec2012, Vol. 92 Issue 6, p2023-2053. 31p., Academic Search Complete, Date
AccessedL 12 July 2014)
A. The Problem: Failure in the Current Federal-State Balance of Powers Interest in developing offshore wind energy projects in the United
States has increased dramatically in the last few years.'5" Yet the complex and changing regulatory scheme, coupled with the high cost and
delay associated with private litigation from citizen groups challenging every step of the approval process, will likely discourage future
development of wind energy projects in the United States without reform. The
problem can be traced to a failure in the
current federal-state balance of powers: a disconnect between the federal approval process and the
inherently local nature of offshore wind energy. Both the opposition by the Wampanoag Tribe and the overruling of the FAA's
approval further illustrate this disconnect between the interests of the federal government on the one hand, and state and local interests on
the other hand. In both instances the federal government has pursued a hard line in favor of the Cape Wind project.
The DOI fully approved the project despite a warning from the Advisory Council on Historic Preservation that the project would have significant
adverse effects on historic properties. The FAA similarly issued a Determination of No Hazard presumably based only on a cursory application of
its regulations, and possibly under political pressure from the Obama Administration. In both instances more
localized entities Native American tribes, local citizen groups, towns, and even state agencies - have expended considerable
resources to express their various views in opposition to the Cape Wind project.'^' To date, the overruling of the FAA's
approval is the only legal victory on the part of the project's opposition.'^^ But whatever the merits of the opposition's legal claims, the process
has demonstrated the inefficiency of the current regulatory scheme. The decision of whether the Cape Wind project should go forward has now
dragged on more than a decade. The
saga has been an incredible waste of resources and time, as the federal
government attempts to fit a square peg in a round hole, with local opposition mounting complaints
with all levels federal and state agencies and courts to confuse and delay the process. There must be a
more effective way to efficiently and optimally allocate the harvesting of coastal wind energy
throughout the United States.
Offshore wind power requires transmission of power and placement of wind on state
– controlled territory- federal regulations undermine state sovereignty
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
A second example of a potential new offshore development with significant human benefits is the Cape Wind offshore wind farm proposed for Nantucket Sound,
Massachusetts. The project is currently in the permitting stage and construction of wind turbines is [*1363] projected for 2010. n31 The project is anticipated to
occupy twenty-four square miles in federal waters offshore Massachusetts and consist of 130 3.6-megawatt wind turbines. n32 The Minerals Management Service
(MMS), within the Department of the Interior (DOI), is creating a regulatory process to facilitate leasing of the area for the project to move forward. n33 One of the
purported benefits of the project is an increase in renewable energy. n34 Yet it has become clear that potential
federalism issues are raised in
the generation of offshore wind energy. Like aquaculture developments, the resource developed offshore
must be transmitted across state areas to reach consumers onshore, thus triggering state regulation of
submerged lands. n35 Furthermore, the acceptance of the potential impacts to state interests has already
generated litigation. n36 While the use of wind as an alternative energy source to fossil fuels has environmental advantages, the impacts on the marine
and coastal resources - including bird and marine life mortalities and [*1364] destruction of marine habitat - are certainly not insignificant. n37 Thus, a citizen group,
publicly endorsed by some state officials antagonistic to the federal project, sued to prevent continued project progress. n38 In Alliance To Protect Nantucket
Sound, Inc. v. U.S. Department of the Army, a residents' association (Alliance) challenged the approval of an offshore data tower that was proposed to test the
feasibility of the wind farm in an area of Nantucket Sound. n39 The specific area, Horseshoe Shoals, is located on the OCS in an area subject to federal jurisdiction.
n40 Alliance argued that the Corps did not have authority under section 10 of the Rivers and Harbors Act to issue a permit for the data tower. n41 Alliance
also argued that Cape Wind Associates did not have the requisite property interests necessary to obtain
a permit pursuant to Corps regulations. n42 The court found that OCSLA (as amended in 1978), which
authorized the Corps to prevent obstructions to navigation, also extended the Corps' jurisdiction to all
artificial islands and all installations for exploring, developing, or producing resources, or other installations of devices.
n43 The jurisdiction was not limited just to structures extracting minerals. n44 Alliance also argued that the National
Environmental Policy Act (NEPA) required that the federal government publish a finding of no significant impact because the proposed action was one "without
precedent." n45 One of the main criticisms of the proposal was the impact to scenic values. n46 Opponents contended that in the future, if the project were
approved, windmills would sit in the center of the sound, destroying the aesthetic appeal and natural beauty of the sound. n47 [*1365] Appellants argue that the
data tower proposal is "without precedent" because Nantucket Sound is a pristine, undeveloped area and because "there is no precedent for permitting a privatelyowned structure for wind energy, or even related research, on OCS lands." n48 However, because a similar data tower was permitted in state waters offshore of
Martha's Vineyard, the court rejected the Alliance's claims and agreed with the Corps that the data tower was not without precedent. n49 However, as will be
discussed in Part IV.C, Congress
has not addressed these environmental or federalism concerns because
Congress encouraged additional wind energy development offshore with various provisions of the EPA
of 2005. n50
Off Shore wind cannot be implemented without destroying States’ authority over
their coasts
Russell 2004
(Robert H., J.D., Harvard Law School. Mr. Russell teaches environmental law in the graduate program at
Tufts University, and has taught energy regulation, environmental law and policy, and property law at
other universities and law schools in the Boston area. He also consults with nonprofit organizations and
government agencies on environmental matters., “COASTAL WIND ENERGY GENERATION: CONFLICT
AND CAPACITIE: SYMPOSIUM ARTICLE: Neither Out Far Nor in Deep: The Prospects for Utility-Scale Wind
Power in the Coastal Zone”, 2004 Boston College Law School, Boston College Environmental Affairs Law
Review, Lexis Nexis)
A key feature of this process is the generality that is allowed, and indeed expected of, n100 state coastal zone management plans. n101 This is
enhanced by the significant discretion the CZMA accords states to freely interpret those plans when specific conflicts arise. Typically, the
burden is on a project developer to demonstrate that its activities conform to the coastal zone plan. n102
But it is seldom possible to ensure conformity [*239] based on review of the plan document itself. To apply coastal program standards, more
process--particularly interaction with state agency staff--is required. n103 But if that miscarries or fails, essentially no enforcement mechanism
exists to set matters aright. The
federal government exercises only limited control over how states conduct their
review, and neither the CZMA nor the typical state coastal zone program makes provision for aggrieved
private citizens to seek judicial relief from private developers, local governments, or the state itself. n104
Although coastal zone programs vary in their priorities as well as their effectiveness, they all tend to operate in a zone of discretion lying
between the federal government and shoreline municipalities. n105 For
wind energy, the most potentially accommodating areas of the
overall statutory design are provisions for federal aid to the states, and the requirement that, to be approved, a plan must
consider the "national interest," including "the siting of . . . energy facilities which are of greater than
local significance." n106 But each offers less than it appears. Federal aid would seem to be a way to
stimulate the state innovation that will be needed in many cases to accommodate wind power. But, beyond a modest
baseline, the prospects are poor, given the historically low level of federal support for coastal zone
management and renewable energy development. n107 Moreover, when federal agencies comment on a
proposed state plan or an amendment to an existing one, the CZMA has been read to assume that a state's
program addresses the national interest, including interest in energy security. n108 Even if conditions change later,
the plan as written remains in effect--largely, if not wholly, immune from attack. [*240] From the perspective of wind power
development, the manner in which coastal plans are created, approved, implemented, and administered
creates significant regulatory uncertainty. n109 The plans themselves typically do not offer specific guidelines or even basic
guidance--for example, guidance to help identify areas in which offshore wind generation might be favorably considered. Instead, plans
elaborate upon the broad array of principles enunciated in the CZMA. Typically, they demand a complex balancing of related but often
conflicting standards, while suggesting few criteria that would aid in discerning priorities among them. Finally, as will be discussed, the sheer
generality of the program document makes it easier for an individual state to argue that a federally-permitted project is inconsistent with some
aspect of its plan, thus blocking the siting of the project. n110 Although the CZMA's one undisputed effect has been to encourage states to view
the coastal zone as a unified ecological area, this new understanding has not always inspired new modes of action. 3. Program Structure a. Basic
Design State coastal zone programs vary widely in scope, n111 as well as structure. n112 Some, like North Carolina's and California's, are
comprehensive and centralized. n113 A single state agency implements the program, although some authority may be delegated to
municipalities. n114 [*241] The majority, however, are "networked" among the potentially numerous state and local agencies that share some
say over coastal affairs. Often, a single state agency coordinates all or most of the others. The Massachusetts, Maine, New Hampshire, Virginia,
Florida, and Texas coastal zone programs are of the networked variety. n115 Through executive orders, policy directives, or memoranda of
understanding, networked coastal programs attempt to amalgamate and shape the preexisting activities and agendas of parallel agencies. n116
b. Spillover Effects For
the development of offshore wind power, the structure of the state coastal zone
management system creates a potentially serious boundary, or spillover, problem. Wind energy provides
significant benefits well beyond the borders of a given jurisdiction--for example, by addressing climate change and global security issues.
But a relatively small percentage of those benefits are captured locally. Moreover, in at least some cases, the local
benefits of wind energy will not outweigh the locally perceived detriment to coastal "character,"
aesthetics, other environmental values, and other uses of coastal resources. n117 Although this spillover, or
externality, problem is not unique to wind development, n118 it presents itself here in an unusual posture, n119 given the continuing debate
over the nature and significance of the local impacts of wind, and the equity issues that a shoreline headcount cannot adequately resolve. n120
[*242] c. Massachusetts: A Case in Point To understand why state territorial waters might be an unfriendly environment for wind development,
it may be useful to examine a specific, representative coastal zone management program. The Massachusetts program has received
high marks, n121 and, like the majority, is a networked program. In addition, the state has a fairly typical range of environmental statutes,
including those that address environmental impacts, the siting of power plants, ocean protection, and public trust resources. The
commonwealth's coastal program is based on at least seven memoranda of understanding between the Massachusetts Office of Coastal Zone
Management and the other state agencies that exercise supervisory authority over use and development of the coastline. n122 These include
the state Energy Facilities Siting Board, the Executive Office of Transportation and Construction, the Massachusetts Environmental [*243] Policy
Act Office, the Department of Agricultural Resources, and the Department of Conservation and Recreation. n123 State law does not provide the
public with the means to challenge action or inaction by coastal officials, or to require the coastal office to enforce its agreements with other
agencies--although two review processes might help. First, in many cases (especially those involving sizable coastal incursions), a factual record
detailing environmental harms and benefits must be developed, largely through the commonwealth's environmental impact review process.
n124 Second, the Energy Facilities Siting Board has the authority, but not the obligation, to facilitate the siting of for power generation projects
by waiving local and state permitting requirements. n125 Nonetheless, the Massachusetts regulatory system poses a
number of
challenges to offshore wind development. The first is its sheer complexity. n126 Multiple sets of regulations address
similar activities in similar language, yet they do so in seemingly uncoordinated and sometimes inconsistent ways. n127 As a result, wind
development may be diverted to [*244] federal waters, if any shallow enough can be found. n128 The
second challenge is the
generality of the standards. n129 They demand a great deal of interpretation, which increases transaction costs.
Third, the coastal zone itself is a "generalized" space, creating further uncertainty. Most, if not all, of the values that its
varied resources support may require assessment each time a significant project triggers the commonwealth's coastal protection apparatus.
Although the process this necessitates may be adept at identifying discrete interests and values, it may be far less effective in translating those
findings into specific conditions that apply to designated activities in specified locations. Fourth, a high degree of generality may be favored as a
way to conserve agency resources, if not ocean resources. The more precise a given policy or decision, the clearer it acts as directive or
precedent. Agencies may seek to avoid such precision, since one of its by-products is the assignment of priority to values and uses--and in
consequence intensifying the demand for hands-on, and often controversial, resource management. [*245] Finally,
the
commonwealth's coastal program appears to be ambivalent about whether wind power should be
encouraged or not. n130 Some coastal zone management provisions seem to treat the resource as a
potentially water-dependent activity that should be favored. Others lean in the opposite direction. n131
This adds to the regulatory uncertainty. Whether wind generation will be sited off the Massachusetts coast remains an open question. But the
regulatory pathway that will determine the fate of each proposal has more twists than necessary. n132 This does not mean the Massachusetts
program is particularly weak. In fact, survey results tabulated in Appendix A suggest that the commonwealth is considerably farther along than
most other eastern seaboard states in reconsidering its coastal program in light of the evident potential for utility-scale wind power in or near
state waters. n133 But the
bottom line is the same: near-shore wind power's potential is being dissipated by a
decentralized system ill-suited to this new regulatory challenge. One unintended consequence is that developers will propose more
massive projects, on the assumption that the ensuing negotiation will demand broader concessions, and that--given a basic lack of structure-the negotiation will impose additional costs that can be offset only by the extra revenue generated by more or larger turbines. Yet, this dynamic
could easily heighten regulatory scrutiny, with the consequence that the entire project ultimately is [*246] rejected. That outcome, however, is
not consistent with existing policy in any coastal state.
Offshore Development
Even projects in federal waters cause federalist disputes- states retain control over
coastal environments
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
A significant distinction between environmental federalism and offshore federalism must be considered
from the outset. First, in examining environmental federalism, the environmental ills to be regulated are
often (though not always) unrelated to lands owned by the federal government. n105 The history of offshore
federalism, however, is based on an initial dispute over ownership of offshore areas. n106 Conflicts between
the state and federal government occur most frequently with development that is proposed for areas
under federal jurisdiction - as is the case with much offshore oil drilling and, today, with the
development of open-ocean aquaculture and wind farms. n107 When one discusses development on the OCS, a
significant distinction can be made from other federalism disputes in that the federal government is managing areas
completely outside the boundaries of any of the states. n108 This makes the OCSLA-CZMA framework and the "cooperative
federalism" approach to coastal and ocean management all the more unique when discerning appropriate structures for local, state, and
federal regulation of coastal and ocean development because distinctive incentives and regulatory propensities can be identified. n109
Oil and Nat Gas
Federalism requires consultation with states and incorporation of their suggestions
before initiating offshore development of oil and natural gas
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
In addition to developments related to the CZMA, Congress also amended OCSLA in 1978 to incorporate
additional provisions relating to environmental protection. n162 OCSLA relies on five-year plans prepared
by the DOI that identify particular offshore areas to be leased for oil and gas exploration. n163 In making the
decision of which areas to offer for lease, the Secretary of the Interior must consider, among many other factors
such as energy needs, the environmental information available and alternative possible uses for the area. n164
The Secretary of the Interior must plan, "to the maximum extent practicable," to achieve a balance between potential
benefits in terms of a discovery of oil or gas and the environmental damage or adverse impact on the
coastal zone. n165 Coastal states play a formal role in this planning process as the amendments in 1978 provided
that the Secretary of the Interior shall solicit and consider comments from coastal states, submit proposed
plans to the governors of affected states prior to publication for wider comments, and accept comments from states and
local governments after publication. n166 After the DOI [*1385] develops the five-year plans, the MMS conducts lease sales where companies
submit initial bonus bids to obtain the right to explore a certain area for oil and/or gas. n167 States
again have a formal
opportunity under OCSLA to make recommendations "regarding the size, timing, or location of a
proposed lease sale." n168
States must approve Outer Continental Shelf development and states don’t like oil or
natural gas plans
WALLS 93
(MARGARET A., Fellow in the Energy and Natural Resources Division of Resources for the Future,
“Federalism and Offshore Oil Leasing Resources”, NATURAL RESOURCES JOURNAL, Vol 33,
http://lawlibrary.unm.edu/nrj/33/3/10_walls_federalism.pdf, accessed 7/11/14)
Typically, the current OCS
development process follows the following sequence of events. The Secretary of Interior
releases the five-year leasing plan. State governors, local officials, and the general public, as well as other federal
agencies and Congress, comment on the plan. Once the plan is adopted, MMS publishes in the Federal Register a call for information
and a notice of intent to prepare an environmental impact statement (EIS). A draft EIS is prepared and released to the public for comments to
be received within 60 days. Public hearings are also held within this 60-day period. A final EIS is then prepared and a proposed notice of sale is
announced by MMS. This
proposed notice is sent to the governors of affected states, who then have 60 days
to submit comments on the size, timing, and location of the proposed sale. A final notice of sale is then
prepared, taking the governors' concerns into account. The sale is held no less than 30 days after the final notice of sale.
The length of the process from adoption of the five-year plan to the actual sale can take two to three years. After a tract has been
leased, all exploration, development, and production plans must be submitted to MMS, other federal agencies,
the governor of the affected state, the state agency responsible for management of the coastal zone,
and any other relevant state and local agencies. The state agencies have a maximum of six months to
determine if the plan is consistent with the state's coastal zone management program. If the plan is
deemed inconsistent, the lessee must submit a new plan or appeal to the Secretary of Commerce. All OCS activities,
such as drilling and construction of platforms or pipelines, require MMS permits. Any of these activities
that affect a state's coastal zone must meet with state approval. The requirements embodied in the CZMA and the
OCSLAA, the two main pieces of legislation that affect the OCS leasing and development process, have led to a much greater role for state and
local governments. They have also led to increased costs for OCS activities and added many months and, in some cases, years of delays to the
development process. The main problem with the Acts is that they have not addressed the issue that is really at the heart of the OCS debate:
the coastal states bear most of the costs of OCS development and get very few of the benefits. Coastal
states live with the risk of oil spills, air pollution from offshore activities, and the perceived unsightliness
of platforms, rigs, and other facilities. These impacts lead to costs in the form of decreased property
values, reduced recreation and tourism, health and visibility impacts, and aesthetic losses. Several studies
have attempted to identify, and in some cases quantify, these costs. Oil spills clearly cause losses by damaging beaches and killing wildlife and
vegetation; some studies have attempted to estimate the magnitude of these losses.16 Fewer studies have looked at the non-spill related
impacts of OCS development-i.e., property value, recreation and tourism, and aesthetic impacts that result simply from the ongoing operation
of platforms, drilling rigs and ships, and supporting onshore facilities. The Dornbusch and Company study, sponsored by the Minerals
Management Service, undertook such an effort, estimating the impacts on recreation in Ventura and Santa Barbara counties in California from
operation of platforms and onshore processing facilities there. The study found that consumer surplus was reduced by four percent in Ventura
county as a result of three existing platforms and an onshore facility and would be lowered by three percent in Santa Barbara county if two
proposed platforms and an onshore facility in the north county area (a less-populated region'of the county) were built.17 These costs were due
purely to the visual impact of the platforms and processing facilities and were not related to the possibility of spills."'
The federal government must get state approval for drilling in the outer continental
shelf
Ryan 2011
(Erin, Teaches environmental and natural resources law, property and land use, water law, negotiation,
and federalism at Lewis and Clark Law School, Federalism and the Tug of War Within, Oxford University
Press,
http://books.google.com/books?id=FEVpAgAAQBAJ&pg=PA296&lpg=PA296&dq=federalism+ocs+drilling
&source=bl&ots=3DV4BqNxjR&sig=fUe8ige_7T0753O9B26Z1PIhFU&hl=en&sa=X&ei=S1HAU7ejHLSJ8gH_mYGIBQ&ved=0CE8Q6AEwBQ#v=onepage&q=fede
ralism%20ocs%20drilling&f=false, accessed 7/11/14)
In another example of state-empowered
exceptions bargaining, the Coastal Zone Management Act (CZMA)
invites states to participate in the protection of coastal zones in which both the federal and state
governments have significant interests. When a state elects to participate by creating a federally approved management plan.
approval authority for federal activities within the zone shifts to the states.15° For this reason, the
Department of Interior often must receive stare approval before issuing federal leases for offshore drilling
on the outer continental shelf (OCS).’1
OTEC
The federal government needs State approval for OTEC plants
Cornell Law School No Date
(Legal Information Institute, 42 U.S. Code § 9115 - Adjacent coastal States,
http://www.law.cornell.edu/uscode/text/42/9115, accessed 7/11/14)
(a) Designation of adjacent coastal State (1) The
Administrator, in issuing notice of application pursuant to section 9112 (d) of this title,
shall designate as an “adjacent coastal State” any coastal State which (A) would be directly connected by
electric transmission cable or pipeline to an ocean thermal energy conversion facility as proposed in an
application, or (B) in whose waters any part of such proposed ocean thermal energy conversion facility would be located, or (C) in
whose waters an ocean thermal energy conversion plantship would be operated as proposed in an application. (2) The Administrator
shall, upon request of a State, designate such State as an “adjacent coastal State” if he determines (A) that
there is a risk of damage to the coastal environment of such State equal to or greater than the risk posed to a
State required to be designated as an “adjacent coastal State” by paragraph (1) of this subsection or (B) that the thermal
plume of the proposed ocean thermal energy conversion facility or plantship is likely to impinge on so as to degrade the thermal gradient at
possible locations for ocean thermal energy conversion facilities which could reasonably be expected to be directly connected by electric
transmission cable or pipeline to such State. This paragraph shall apply only with respect to requests made by a State not later than the 14th
day after the date of publication of notice of application for a proposed ocean thermal energy conversion facility in the Federal Register in
accordance with section 9112 (d) of this title. The Administrator shall make any designation required by this paragraph not later than the 45th
day after the date he receives such a request from a State. (b) State coastal zone management program (1) Not
later than 5 days after
the designation of an adjacent coastal State pursuant to this section, the Administrator shall transmit a
complete copy of the application to the Governor of such State. The Administrator shall not issue a
license without consultation with the Governor of each adjacent coastal State which has an approved
coastal zone management program in good standing pursuant to the Coastal Zone Management Act of 1972 (16 U.S.C. 1451 et
seq.). If the Governor of such a State has not transmitted his approval or disapproval to the Administrator by the 45th day after public hearings
on the application are concluded pursuant to section 9112 (g) of this title, such approval shall be conclusively presumed. If
the Governor
of such a State notifies the Administrator that an application which the Governor would otherwise approve pursuant to
this paragraph is inconsistent in some respect with the State’s coastal zone management program, the
Administrator shall condition the license granted so as to make it consistent with such State program. (2)
Any adjacent coastal State which does not have an approved coastal zone management program in good standing, and any
other interested State, shall have the opportunity to make its views known to, and to have them given
full consideration by, the Administrator regarding the location, construction, and operation of an ocean
thermal energy conversion facility or plantship. (c) Agreements and compacts between States The consent of Congress is
given to 2 or more States to negotiate and enter into agreements or compacts, not in conflict with any law or treaty of
the United States, (1) to apply for a license for the ownership, construction, and operation of an ocean
thermal energy conversion facility or plantship or for the transfer of such a license, and (2) to establish such agencies,
joint or otherwise, as are deemed necessary or appropriate for implementing and carrying out the provisions of any such
agreement or compact. Such agreement or compact shall be binding and obligatory upon any State or other party thereto
without further approval by the Congress.
Federal Lands
Even policy over federally controlled lands can generate state-federal conflict over
resources
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
The potential for intergovernmental conflict also exists in offshore areas. A state might designate an area
open to commercial fishing while the federal government designates an adjacent ocean area protected
as a "no-take marine reserve" or similar conservation-oriented designation. At the boundary line, species protected within
federal areas lose such status and can be captured, frustrating federal efforts at conservation. This scenario is not
just speculative. When the federal government designated areas of the Northern Hawaiian Islands as a
marine reserve, state officials expressed concern about the impact [*1401] on adjacent state
management objectives, including management of commercial fishing. n285 Hawaiian officials were reluctant to
provide similar protection to state areas, and fortunately an informal resolution of the conflict, including federal subsidies to
fishermen to obtain stakeholder buy-in, avoided any legal conflict where the supremacy of federal objectives would make conflicting state
objectives recede. n286
Internal links
States Challenge Federal Gov
Generic
The states will oppose the federal government—they oppose regulatory frameworks
Rabe, 2011 <Barry Rabe, University of Michigan, “Contested Federalism and American
Climate Policy”, http://closup.umich.edu/people/barry-rabe/publications/PubliusContested_Federalism.pdf>
Lacking precise intergovernmental dividing lines, scholars have searched for criteria to explain why the policy approaches of various levels of
American government shift over time and frequently diverge. Many have defined and examined patterns whereby states (either a single state
or a subset of them) tend
to take the lead in policy innovation, sometimes fostering considerable sub-national diffusion of policy
that may (or may not) trigger some form of federal response (Volden, Ting, and Carpenter 2008). States are often found taking
early action to gain a competitive advantage over their neighbors, most commonly through attempts to
accelerate or diversify economic development (Oates and Schwab 1988). Such steps are often thought to coincide
with state aversion to those governmental functions that could impose heavy costs on a state and its
taxpayers such as regulatory or redistributive programs (Peterson 1995). Questions of federal engagement often follow,
whether to build on early state efforts through policy learning, erase them in the name of national uniformity, or jump in amid a seeming
absence of state involvement (Posner 2010). Application of this work to the arena of environmental protection regularly raises issues of
negative externalities and whether states attempt to advance their own economic well-being by generating environmental contaminants that
drift or flow to other jurisdictions where they cause ecological or human health damage (Lowry 1997). This has fostered considerable analysis of
strategies to either reconcile cross-jurisdictional conflicts (such as interstate litigation for alleged damages or creation of interstate compacts to
unite neighboring states on common environmental concerns) or sort out federal and state responsibilities to minimize cross-state contaminant
transfer (such as federal preemption of a policy area). Externalities are rarely easy to measure with precision, however, and efforts to
establish clear dividing lines between what constitutes a federal as opposed to a state area of
responsibility have proven elusive at best. Analysis that focused on intergovernmental relations was initially dismissed by
scholars as irrelevant to climate change, given the predominant thinking that theories of international relations and regime formation were far
more applicable. But the American case over recent decades, as well as emerging lessons from other federal systems, suggest that an
intergovernmental perspective can be applied with considerable rigor to climate policy (Burke and Ferguson 2010). As we shall see, climate
change policy options pose classic questions of economic development versus cost imposition. Just as no
two states are likely to face the same risks from accelerating climate change, no two will likely frame such policy options in identical fashion or
have comparable capacity to formulate policy. In turn, any federal responses will vary depending upon issue saliency at a given juncture as well
as political factors that shape policy development, including public opinion and partisan control of the legislative and executive branches. At the
same time, climate change might not seem to impose classic externality issues, as GHG emissions from any jurisdiction contribute to total
global concentrations rather than move directly from one locale to another. But inherent in the combustion of fossil fuels that produce carbon
dioxide, the dominant GHG, is a host of related environmental concerns, such as the release of conventional air contaminants. Alongside the
likelihood of varied short- and long-term impacts from climate change on different states and regions (and hence different incentives to
promote emissions reductions), the externality factor remains inexact but nonetheless present and contributing to intergovernmental policy
considerations.
Environment
Cooperative federalism is the most effective solution for environmental
management—state coastal management systems prove
Duff no date (THE COASTAL ZONE MANAGEMENT ACT: REVERSE PRE-EMPTION OR CONTRACTUAL
FEDERALISM ? by John A. Duff 6 Ocean & Coastal L.J. 109 2001)
All along the coasts of the United States, as the lands give way to the sea, another transition takes place
as well. Federal law washes over state law until at last, miles out to sea, federal law rules exclusively. The
dynamic natural environment contributes to the fact that land-based activities affect the seas, and vice versa. As a result, federal law may
not adequately protect federal interests and state laws may be insufficient to protect a state's coastal
zone from activities that take place in distant federal waters. How can government fashion a system that
serves both federal and state interests? The answer: cooperation through a partnership contract
arrangement, an option that has been employed since 1972. In an era of increasing battles over the proper roles of federal and state
power, the Coastal Zone Management Act' (CZMA) stands as a useful example of a vehicle that mutually benefits the federal and state
governing authorities and the areas they govern. The CZMA achieves this result under a theory as close to contract as federalism. The CZMA
provides federal funds to states to manage their coastal areas in accordance with a set of federal guidelines. The CZMA does not mandate state
participation, but, rather, makes the states an offer. The
benefits of this cooperative or contractual federalism
relationship can be seen in the number of states that have accepted the offer and have adopted state
coastal management programs, which serve the dual purpose of protecting not only the coasts of the
individual states, but the entire nation's coastal zone.2 One aspect of the CZMA, the consistency
provision, allows states a voice in activities that are outside of the state territory, but which may affect
the state's coastal zone. Critics of the CZMA argue that the federal government bargained badly in constructing the contractual nature
of the relationship and that the CZMA, or at least certain features of the coopera- tive federalism relationship, including the consistency
provision, ought to be abolished. In his article, The Federal Consistency Requirements of the Coastal Zone Management Act: It's 7ime to Repeal
This Fundamentally Flawed Legislation, 3 Bruce Kuhse makes an impassioned plea to eradicate what he characterizes as a costly, burdensome,
and ill-conceived instrument in the form of the consistency provision, due to what he claims are its reverse pre-emption effects on federal
activity and authority. This brief article is designed to address some of the arguments made by Mr. Kuhse, to provide the reader with a different
perspective on the CZMA federal- state relationship, and to posit the argument that the consistency provision is not a cession of federal
authority, but, rather, even in its limited strength, a persuasive material element which attracts states to participate in the system. The Federal
Interest in State Coastal Waters Since the beginning of the Republic, the federal government has exercised a range of authorities over activities
in the nation's coastal waters. The federal courts have plenary jurisdiction over admiralty and maritime matters.4 The Commerce Clause of the
Constitution5 creates a navigation servitude which encumbers all navigable waters of the United States.6 Moreover, a host of federal statutes
govern the maintenance and protection of the condition and capacity of the nations's coastal waters.7 Even in those circumstances where
neither an express constitutional provision nor a federal statute conveys federal authority, the U.S. Supreme Court has recognized that rarest
ofjudicial legal authority, federal common law, as a means of recognizing a federal interest in the nation's waters.' At the same time, there can
be no doubt that the federal government recognizes substantial sovereign rights of each state related to their dry land, submerg- ed lands, and
coastal waters. The Submerged Lands Act9 articulates the recognition of a state's title and right to coastal submerged land areas and also
expressly reserves certain federal authorities deemed paramount.' ° While those water-borne paramount rights allow the federal government
to pre-empt conflicting state law, that pre-emption authority decreases or disappears as the sea gives way to the shore. Given this regime of
concurrent jurisdiction over coastal waters where federal law may reign supreme and the coastal land where state sovereignty constitutes
greater strength, the question arises as to the best means of establishing a system that protects the entire nation's coastal zone, including both
wet and dry areas. That question was answered by Congress in 1972 when the CZMA became law." Based upon recommendation of the
Stratton Commission and with the knowledge that federal authority in the coastal zone dissipated at the water's edge, Congress enacted a law
designed to persuade, rather than mandate, the states to protect the resources of the coastal zone.'I At the outset of the CZMA, Congress
states that there is a "national interest in the effective management, beneficial use, protection, and development of the coastal zone."' 3 By
its very nature, the CZMA is contractual. The states need not enter into the partnership offered by the
federal government. 4 Nor does the federal government have to enter into a relationship with a state if
it deems the state's coastal management plan to be deficient. 5 The considerations exchanged in the
contract are cash from the federal government to the state government in exchange for a state program
designed to protect coastal zone in accordance with federal guidelines. Simply put, the effect of the
contract is that the states get money and the federal government gets a national system of coastal
management programs that meets its basic objectives. The Bargaining Chip-Giving the States a Voice in Federal Activities
and Federal Territory A significant bargaining chip in the CZMA contract or partnership is the federal consistency provision. 16 In addition to the
funding provided by the federal government, a state is effectively given a voice in federal activities via the consistency provision. Some
commentators contend that the contractual nature of this cooperative federalism relationship, particu- larly the consistency provision,
effectively produces a "reverse pre- emption" system whereby a state can effectively block the federal government from exercising its
authority. In his article advocating the abolition of the consistency provision, Mr. Kuhse characterizes the measure as an ill-conceived cession of
authority from the federal to the state government. The effect, contends Kuhse, amounts to a reverse pre-emption scenario, i.e., rather than
the federal government having the power to pre- empt state law, the state has authority to block what would otherwise be an allowable
federal activity. Kuhse's recounting of circumstances where states have used the consistency provision as a means of influencing or impeding
federal activity is constructed to illustrate the threat that this "negative pre-emption" poses not merely to the proposed activity at issue, but to
the very nature of federal authority itself. One reading Mr. Kuhse's argument might be led to believe that a federal government activity or a
permitting decision related to an activity that takes place outside state jurisdiction may be derailed by the whim of a state by the mere
utterance of the term "inconsistent." But in those circumstances where the federal activity may impact the state's coastal zone, the state must
do more than merely object; it must articulate some rational basis for doing so. In fact, in 1984, the U.S. Supreme Court ruled against a state for
failure to state a consistency objection within the meaning of the CZMA. This decision led to a congressional strengthening of the state's
consistency scope. 17 While there is no doubt that the states have effectively blocked some types of activity from occurring,"s they have done
so not in opposition to federal authority, but with the full understanding of the federal government and pursuant to a provision of afederal law
which has been revisited and re-authorized by Congress numerous times over the last quarter century.19 In some instances, the consistency
provision has proven to be a NEPA-like tool that fosters sound and informed decision-making. "When the EPA wanted to designate an ocean
dumping site, it consulted Louisiana: The 30-day comment period on EPA's Final EIS closed on January 11, 1999. Only one comment letter, from
the State of Louisiana, Department of Culture, Recreation and Tourism, Office of Cultural Development, was received on the Final EIS. The
Louisiana Office of Cultural Development found the document to be thorough and well written, and concurred with the evaluation that there
would be no effect on significant cultural resources, and as such, had no objections to the proposal. EPA's NEPA review included coordination
with the State of Louisiana underrequirements of the Coastal Zone Management Act. The State of Louisiana concurred with EPA's
determination that final designation of the Atchafalaya River Bar Channel ODMDS is consistent, to the maximum extent practicable, with the
Louisiana Coastal Resources Program. This final rulemaking document fills the same role as the Record of Decision required under regulations
promulgated by the Council on Environmen- tal Quality for agencies subject to NEPA." Id 114 OCEAN AND COASTAL LAW JOURNAL [Vol. 6:109
Who's Trumping Whom? In issues of pre-emption, courts often characterize the exercise of a superior federal power as a right to "trump," or
override, a state law or decision. Kuhse's notion of inverse pre-emption paints a picture of the federal government giving away this trump card
to the states when it comes to matters that may affect the coastal zone of the nation. However, a more accurate card-playing portrayal of the
federal-state partnership might be a picture of the federal government dealing a wild card to each state in exchange for each state anteing up
with a coastal zone management program that enriches the dealer by effecting his objectives. And while each state may play that wild card
from time to time in the form of a consistency objection, it is obvious that even that wild card may be trumped by any number of cards that the
federal government retains. The Trump Cards That Remain in the Federal Government's Hand While the state may hold a wild card in the form
of an "inconsistency" claim, there remain a number of trump cards in the federal government's hand. Exclusion The CZMA expressly excludes
federal lands from being considered part of a state's coastal zone.21 As a result, activity on federal lands within the borders of a state's coastal
zone have a trump card characteristic to them. Mr. Kuhse indicates that the exclusion provision is weakened by the fact that a state may "claim
inconsistency" for activity that takes place in an excluded area that might have an impact beyond the excluded area and in the state coastal
zone.22 He is correct, but that does not render the exclusion provision meaningless.23 Presidential Exemptions for Federal Activities Another
trump card exists even where a state plays its wild card in the form of a consistency objection to a federal activity. The President may "exempt
from compliance those elements of the federal agency activity... found . . . to be inconsistent with an approved State program, if the President
determines that the activity is in the paramount interest of the United States." Secretary Override for Federal Permitting Decisions The fact that
the consistency provision can be trumped by the Secretary of Commerce is illustrated by the numerous instances in which the Secretary,
contrary to a state claim of inconsistency, has ruled that a federal permit issuance was in fact "consistent" under the terms of the CZMA. The
fact that the federal government continues to play the game and raise the stakes suggests that it is willing to leave its own contribution, vis- avis the consistency provision, intact. In light of its growing reliance on states to develop more extensive coastal management programs with
increasing responsibilities, it is unlikely that the federal government wishes to eliminate its allowance for states to have a voice in federal
activities and permitting decisions that may affect their coasts Conclusion When the notion of reverse pre-emption, as posited by Mr. Kuhse, is
considered in the context of the CZMA, it is important to remember that the federal government cannot be absolutely bound by the states in
any real ongoing way. In the CZMA contractual federalism card game, the federal government convened the game, wrote the rules, holds a
number of trump cards, and has the ability to end the game when it wishes. The
consistency provision that gives states a
voice that they would otherwise not have does not threaten federal authority. In its worst manifestation
it amounts to nothing more than a wild card that might be played by the state. The fact that on some occasions
the federal government allows the state's wild card to go untrumped does not mean that the federal government is powerless. Rather in those
circumstances, it may be better characterized that the federal government allows a state to benefit from the bargain struck in the CZMA
federal-state contract partnership. There is likely no doubt that in some of the situations Mr. Kuhse cites, certain individuals have borne a
greater burden than may have been anticipated. However, a distinction should be drawn between the limited situations in which these
arguable inequities occur and the overall nature of contractual federalism embodied in the CZMA regime. There may be remedies to addressing
the seemingly unfair circumstances that may result under a state's claim of "inconsis- tency.' 30 But a balancing of the bargaining chips seems
to indicate that states might drop out of the bargain if one of the biggest chips is taken out Approval Decisions on conditions for the Rhode
Island coastal nonpoint program. NOAA and EPA conditionally approved the Rhode Island coastal nonpoint program on September 27, 1997.
NOAA and EPA have drafted approval decisions describing how Rhode Island has satisfied the conditions placed on its program and therefore
has a fully approved coastal nonpoint program." ld. 30. A recent Supreme Court decision indicates that the U.S. federal government may have
to increase its financial contribution to the CZMA process in the form of payments back to prospective federal permittees whose development
proposals have been thwarted by, among other things, state CZMA consistency objections. See Mobil Oil Exploration & Producing Southeast,
Inc. v. U.S., 120 S. Ct. 2423 (2000). 118 OCEAN AND COASTAL LAW JOURNAL [Vol. 6:109 of the pot. And in light of recent efforts of Congress to
raise the stakes in the game, by requiring, for example that states implement non-point source pollution control management systems, it seems
even more inequitable for the federal government to reduce its contribution to the partnership. While the 106' Congress struggled to construct
budgets to fund federal programs, it became clear that the legislative and executive branches agreed that the CZMA ought to continue to
receive substantial federal financial support to assist states in administering their respective coastal management pro- grams. 3 1
The Federal Government can’t correctly implement environmental policy and states
will challenge it
Adler ’98 (Johnathan, political scientist, Environmental policymakers are increasingly turning to the states for solutions to today’s
environmental problems, Environmental Forum, http://home.earthlink.net/~jhadler/federalism.html, accessed: 7/11/14 GA)
Today, however, the
consensus in favor of a centralized, national approach to environmental policy is
disintegrating. Environmental analysts, government officials, and activists across the environmental spectrum are calling
for greater local control in environmental policy and are looking to places other than Washington, D.C.,
for solutions to environmental problems.1 State officials are particularly aggressive. In 1994, several state
environmental agency heads formed the Environmental Council of the States (ECOS) to lobby for greater
state flexibility. "State environmental leaders could no longer stand by and let EPA take the lead," explains
Mary Gade, Director of the Illinois Environmental Protection Agency. "States were quite simply ‘Fed up.’"2 The reason for the
disintegrating consensus is straightforward: the basic policy framework enacted in the 1970s does not serve America well in the 1990s. Costs
have escalated to the point where Americans now spend well over $150 billion complying with environmental regulations, and the results are
dwindling. Some laws, such as Superfund and the Endangered Species Act, are outright failures, at time exacerbating the environmental
problems they were meant to solve. As
regulatory commands piled up bureaucratic controls, the system has
neared a breaking point. In the words of law professor Richard Stewart of New York University, "The system has grown to
the point where it amounts to nothing less than a massive effort at Soviet-style planning of the economy
to achieve environmental goals."3 Of particular concern is the ability of a national, centralized regulatory structure to
address environmental problems that are largely local and regional in nature. The EPA’s Scientific Advisory Board
concluded in 1990 that most remaining environmental problems "are site-specific, varying from area to area and requiring tailored controls at
the regional, state, or local level for effective mitigation." Yet
current programs fail to allow state and local governments
sufficient flexibility in tailoring their programs to local needs. According to the United States Advisory Commission on
Intergovernmental Relations, "Federal rules and procedures governing decision-making for protecting the environment often are complex,
conflicting, difficult to apply, adversarial, costly, inflexible and uncertain."4 State
and local officials increasingly complain that
federal laws and regulations force them to implement environmental programs that make little sense in
their part of the country, diverting resources from more pressing concerns. As a Columbus, Ohio, health official said
a few years ago, "The new rules coming out of Washington are taking money from decent programs and making me waste them on less
important problems."5 State environmental agencies must follow federal dictates governing minute details of regulatory programs that are not
simply for pollution control purposes. Federal regulations require states to provide for the requisite amount of public participation and
opportunities for litigation by citizens and even ensure that permitting programs meet EPA’s standards for environmental justice. Whereas the
Clean Water Act speaks of preserving and protecting the states’ primary role in pollution control, "under the present scheme of the Act, the
states generally have a choice between acquiescing to federal proscriptions or ultimately facing the prospect of federal exemption," notes
environmental attorney Mark Pifher of Colorado Springs, Colorado.6 In this context, it should be no surprise that many analysts are calling for a
return of substantial policymaking authority to state and local governments. In 1995, for instance, the National Academy of Public
Administration (NAPA) concluded that "EPA and Congress need to hand more responsibility and decision-making authority over to the states."7
ECOS calls for "the long overdue transfer of power in the state-federal partnership."8 David Schoenbrod, an attorney formerly with the Natural
Resources Defense Council, argues that the historical preference for federal regulation is misguided. "The popular desire for a clean
environment can be realized with far more common sense by returning control of local government," Schoenbrod says.9 NAPA, ECOS, and
Schoenbrod are but three voices in a growing chorus calling for a new
environmental federalism that would return greater
environmental policymaking responsibility to the states.
Federal environmental policies are vulnerable to challenge
Adler, 2004 < Jonathan H. Adler, 2004 “Judicial Federalism and the Future of Federal Environmental
Regulation” Case Research Paper Series in Legal Studies Working Paper 04-6 April 2004 >
The expansive reach of federal environmental regulation places it in the middle of the federalism
debate.4 Environmental regulation arguably represents the most ambitious and farreaching assertion of
federal regulatory authority. The very premise of much environmental regulation is that ubiquitous ecological interconnections
require broad, if not all-encompassing, federal regulation.5 This premise is contrary to that of a federal government of limited and enumerated
power that underlies the constitutional structure of federalism.6 Due
to theirexpansive scope, environmental statutes are
particularly vulnerable to challenge on federalism grounds, a fact noted with great concern by Justice Stevens, among
others.7 Some even suggest that the revival of federalism has “the potential to undo the foundation of modern environmental law.”8 At a
fundamental level, the foundational principles of the Supreme Court’s federalism revival – that the Constitution creates a federal government
of defined and strictly limited powers and that state sovereignty remains a judicially enforceable limit on federal power – are in direct conflict
with the organizing principle of contemporary environmental law. The existing statutory framework is based upon the presumption that most
environmental problems require broad assertion of federal power. Even though
federal environmental regulation adopts a
“cooperative federalism” model, it is a model in which the federal government sets environmental
priorities, imposes far-reaching restrictions on potentially environmentally destructive behavior, and
provides general direction for state efforts. Insofar as federalism is a judicially enforced constraint on the authority of the
federal government, it could have a significant impact on federal environmental regulation. Yet while federalism may limit federal regulatory
authority, it need not undermine the cause of environmental protection.
Other issues prove
States not afraid to challenge the federal government—domestic spy program and
gun-control prove
Ulbricht 14 (Adam, “Nullification movement grows as states challenge federal power”, http://watchdog.org/125992/nullificationfederal-government/)
The battle for power between states and the federal government has been raging since the ink was still wet on the freshly signed U.S.
Constitution. The struggle continues as state governments look to take back power they claim is rightfully theirs through a process called
nullification. STATES’ RIGHTS: Nullification bills are challenging federal power all around the country. Although the application of the concept
has started to take off more recently, the idea itself dates back to the late 1790s, when Thomas Jefferson and James Madison penned the
Kentucky and Virginia Resolutions, opposing theAlien and Sedition Acts. Today,
a number of nullification bills have popped
up in states across the country that addressing a wide range of issues. Multiple states, including Washington,
Arizona, New Hampshire and Tennessee, have introduced legislation that bar state workers from cooperating with
the National Security Administration’s domestic spy program. Some bills, such as HB1533 in New Hampshire, even
make it a Class-A misdemeanor if state employees are caught violating the proposed law. In other states,
such as Montana and Missouri, nullification bills have either been passed or introduced that refuse to
recognize gun-control requirements made by the federal government. In 2009, Montana passed the Firearms
Freedom Act, which prohibited federal regulations of guns manufactured within the state’s borders. A federal appeals court struck down the
act in August, citing the commerce clause. A
host of states are challenging President Obama’s signature legislative
achievement, the Affordable Care Act. Indiana just introduced HB1406, which resists the enforcement of
ACA guidelines. The Hoosier State joins South Carolina, Oklahomaand Georgia in doing so. So, why all the
recent outrage from the states? That question is debatable. Geoffrey Skelley, a political analyst with the Center for Politics at the University of
Virginia, says major legislation, such as the ACA, often creates tension and “strident disagreement.” Skelley said he believes it’s actually
“healthy” because it “forces us to have conversations about these issues.” Still, others, such as Michael Maharrey of the Tenth Amendment
Center, say it’s the
federal government overstepping its bounds. “We have an unlimited federal government
today,” said Maharrey. “We seem to let the federal government decide what its own powers are.”
States will challenge the federal government over environmental policy—offshore
wind farms prove
Schroeder 10 (Erica, J.D., University of California, Berkeley, School of Law, 2010, Yale School of Forestry & Environmental Studies,
2004; B.A., Yale University, 2003 California Law Review Vol 98 Issue 5, Turning Offshore Wind On,
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1069&context=californialawreview)
Ultimately, the
CZMA, with its focus on decentralized, state control over coastal-zone management, leaves the
federal government and offshore wind proponents with minimal recourse in their struggle to develop
offshore wind projects. The CZMA allows states near-complete control over their coastal zones through
their CZMPs, with almost no role for the federal government in promoting offshore wind energy (or any kind of renewable energy).
Because electricity transmission lines must necessarily run through slates' coastal zones to reach consumers, states therefore have
significant control over offshore wind projects. Through federal consistency review, their direct control can even
extend into federal waters; though states have not often employed this process, the Secretary of Commerce has seemed willing to
give them some deference when they do. Given a policy of such strong local control, and the absence of a firm federal
mandate for offshore wind power development, local interests have been able to stall both federal and state
permitting processes, often through litigation. Proponents of offshore wind have little federal support, and no guaranteed
source of state support, on which to rely. Cape Wind presents a compelling and frustrating illustration of this problem.
States not afraid to challenge the federal government over controversial issues—
health care and abortion laws prove
McAllister 14 (Stephen R., law professor at the University of Kansas School of Law and solicitor general of Kansas “When States Object
to Federal Law”, http://www.csg.org/pubs/capitolideas/2013_may_june/federalism.aspx)
In recent years, states with some frequency have disagreed with and objected to a variety of federal laws.
Sometimes the objectionable federal law has been in the form of federal statute. Sometimes the federal
law is constitutional law, in the form of U.S. Supreme Court decisions interpreting the scope of the federal government’s power and
federal constitutional rights. Prominent examples in recent years include state objections to the federal health
care law, in particular the individual mandate that requires people to purchase health insurance, and the federal government’s decision not
to exempt certain employers with religious objections from mandatory contraceptive coverage as part of employee health plans. Other
prominent examples include state-sponsored personhood amendments or laws that would declare life
to begin at conception, an objection to the current abortion jurisprudence under federal law.
Oceans key
Generic
There is balance between state and federal over ocean policy now - Expanding federal
government control collapses federalism
Weilkinson 12, Weilkinson, Laura titrust partner in the Washington, DC office of Weil, Gotshal &
Manges with a practice focusing on mergers and acquisitions. "First U.S. National Ocean Policy
Established – Congress Just Needs to Support It." The George Washington Journal of Energy
Environmental Law. The George Washington Journal of Energy Environmental Law, 13 Nov. 2012. Web.
11 July 2014. CS
For reasons that have to do with federalism principles and a historically piecemeal approach to ocean management, no
regulatory entity oversees U.S. ocean waters as a whole.[4] Coastal states exercise exclusive control over
the first three miles of coastal waters, and the federal government has sovereignty over the expansive Exclusive Economic Zone, which
extends two hundred miles offshore.[5] Overall management of ocean and coastal waters is divided among
numerous federal, state, and local agencies, operating under different, overlapping, and sometimes conflicting
regulatory regimes and objectives.[6] As a result, each activity or threat to ocean health is typically
considered in isolation; the coordinated management of cumulative impacts is rare and difficult to achieve.[7] The National Ocean
Policy is the first federal ocean program to espouse principles of ecosystem-based management (“EBM”). EBM is an integrated approach to
managing ocean resources that considers the entire ecosystem and the cumulative impacts of human activities and environmental changes.[8]
This holistic approach is crucial to preserving our failing ocean ecosystems. To implement EBM, the National Policy
calls for the
creation of Regional Planning Bodies to engage in comprehensive coastal and marine spatial planning of the
Large Marine Ecosystems bordering U.S. coasts.[9] Coastal and Marine Spatial Plans will take into account ecosystem-wide effects,
identify vulnerable areas, prioritize ocean uses, and designate regions for suitable uses and activities.[10] The National Ocean Policy has
been controversial among some congressional and industry circles because it seems to expand federal
authority over a historically state-dominated field and threatens to saddle commercial development with more
environmental priorities and protection.[11] More recently, states and regional partnerships have taken initiatives to
implement the National Ocean Policy, but ocean programs are still underfunded by Congress.[12] William
Ruckelshaus, co-chairman of the Joint Ocean Commission Initiative, said in a statement, “We cannot let partisan politics threaten
our ability to adequately manage ocean resources to improve ocean health and support numerous
businesses and jobs around the country.”[13]
Oceans are a key area in federalism- must maintain proper balance between state and
federal control
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
Full scale industrialization of the oceans is now upon us. Ready or not, government agencies are considering
and processing proposals for increasing commercial use of the oceans for energy generation, mining, seawater
desalination, and fish farming, creating a modern ocean industrial revolution. n1 Though some ocean uses have well- [*1357]
established legal authorizations, the regulation of new ocean uses and development projects is just emerging. This Article evaluates the
offshore federalism framework that may be used - despite its many known flaws - to facilitate ocean and coastal development in the twentyfirst century.
Ocean governance is at a crossroads, and contemporary discourse on oceans law and policy is characterized by
of a formal property
system for managing competing ocean uses argue that "all these new uses share a common problem
and raise a common concern - policy regarding their use in U.S. waters is being formulated piecemeal,
many ideas for change. In addressing the growing number of industrial uses of ocean resources, advocates
and they are all developing economically in the absence of a coherent and publicly-vetted policy framework." n2 Laws designed to
accommodate certain uses are being stretched to apply in factual scenarios not previously contemplated: no overarching institution or
institutional framework manages or coordinates all activities, it
is evident that all potential ocean uses cannot be
accommodated, and, perhaps most importantly, marine environment health continues to decline. n3 Despite these problems, recent
efforts at legal reform continue to perpetuate the same failed approaches to addressing the enduring controversies over exploitation of ocean
resources. While "old issues never quite die in the [*1358] management of the Outer Continental Shelf, and new issues constantly emerge," the
regulatory response remains consistently inadequate. n4 Any
meaningful attempt at ocean governance reform must
confront - and if possible, resolve - the long-standing conflict between coastal states and the federal
government. This conflict continues both to define and complicate ocean governance reform. n5 At its center is a geographic
boundary that, in an ecological sense, is purely arbitrary: coastal states have jurisdiction over the shoreline up to
three miles seaward, and beyond this boundary, the federal government regulates an expansive Exclusive
Economic Zone (EEZ) internationally recognized to extend 200 miles from the shore. n6 Intergovernmental relations with
respect to this boundary are dictated in large part by the Coastal Zone Management Act (CZMA), n7
which creates a "cooperative federalism" approach to offshore management n8 and the Outer Continental Shelf Lands Act
(OCSLA). n9 Both statutes were amended recently by the Energy Policy Act of 2005 (EPA of 2005), n10 a flawed legislative response to the
continuing conflicts over onshore and offshore energy development. Altogether, coastal
and Outer Continental Shelf (OCS)
development remains a contentious, politically charged battle between coastal states, the federal
government, environmentalists, and private entrepreneurs. This tension has long been recognized (particularly due to highly
publicized conflicts over offshore oil drilling), but it is now at a critical point because it limits the ability to ensure the
sustainable development of [*1359] ocean resources - a vital policy goal that is compelled by both economic and ecological
considerations - as industrialization of the oceans accelerates. n11
Ocean Federalism Bad- Env Management
State-federal conflict over ocean policy ensures continued environmental
degradation- must have a consistent framework for policy
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
The relationship between the coastal states and the federal government - the two main regulators of marine
resources on the outer [*1371] continental shelf - is of increasing importance for several reasons. First, we are utilizing
marine ecosystems and resources now more than ever before. Human activities once only possible in shallow waters are
increasingly being carried out farther offshore in federally controlled areas, which lie beyond the three-mile boundary demarcating areas of
state control. Near-shore activities continue, including historical ocean uses such as shipping commerce, oil and gas exploration, and
commercial and recreational fishing.
Lawmakers are also approving new mineral extraction operations, n83
aquaculture and mariculture developments, n84 wind and wave energy production projects, n85 and
marine research for medical and pharmaceutical applications farther offshore in areas previously frequented only by fishermen or
shipping barges. n86 This proliferation of ocean users contributes to concern about [*1372] the failing health of the marine environment n87
and heightens concern about leasing offshore areas without sufficient environmental safeguards directed toward individual activities or their
potential cumulative impacts. n88 Second,
as the population of coastal states is expected to increase steadily,
land-based pollution and pollution originating from offshore activities will continue to burden the
marine ecosystem. Land-based pollution is a grave threat to the health of the estuarine and coastal environment and has a significant
impact on the entire marine ecosystem. n89 The United States Commission on Ocean Policy [*1373] (USCOP) estimated that over fifty percent
of the American population lives on coastal lands, representing less than twenty-five percent of the total land base. n90 In response to the
report prepared by USCOP, the Bush Administration created the Ocean Action Plan (OAP) which acknowledges that it "expects that by 2025,
approximately 75 percent of Americans will live in coastal areas." n91 This fact alone heightens concern about the increased use of coastal and
ocean resources and calls into question the viability of restoring key coastal ecosystems that are already overtaxed by human activity. The
direct dependence on coastal and ocean ecosystems is growing as increasing numbers of people are moving to the coastal zone. But while
increasing activities in the ocean carries one set of risks, this intensified use of the coastal zone also threatens additional land-based pollution
and erosion. n92 These
circumstances underscore the need for coordinated land-ocean management
between coastal states and the federal government. Finally, the sustainable development of the oceans is
an indispensable element in achieving the goal of lasting economic prosperity. The oceans are severely
impacted by human activities, and efforts to reduce land-based pollution as well as a myriad of other adverse marine impacts are far
outpaced by increasing demands on marine resources - particularly ocean fish as a source of food. n93 While leadership on these
management issues is desperately needed, more problematic in this regard is the fact that the
development tail is currently wagging the ocean governance dog. For example, the OAP proposes to intensify ocean use
and to rely more on privatization of ocean space to achieve efficiency of ocean use. n94 The Bush [*1374] Administration recognizes a difficulty
in reconciling conservation with increased productive use. n95 Yet in contrast to the approvals of proposals for additional ocean uses and
development, the Bush Administration has been slow to advance a conservation agenda or to implement existing laws that are protective of
the marine environment. n96 Nor
has Congress embraced recommendations directed toward conservation and
ocean health restoration (and recently has been slow to embrace most other types of environmental reform). n97 This has in
turn led to more significant actions by coastal states, both in state legislative activity and in the lobbying
of congressional representatives for extraordinary measures such as offshore drilling and open-ocean
aquaculture moratoria through appropriations limitations. n98 Thus, the fact that coastal states and the
federal government continue to clash over development and conservation on the OCS presents one with
a rather depressing picture: imagine a boat being rowed with opposing oars, destined to circle but
moving forward only miraculously by the current or a strong wind.
State independence key to fed
States’ ability to protect their independence is key to successful federalism
Weingast 2006
Barry R. Weingast, Senior Fellow, Hoover Institution, and Ward C. Krebs Family Professor, Department of
Political Science, Stanford University, “Second Generation Fiscal Federalism: Implications for
Decentralized Democratic Governance and Economic Development”, June 2006,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1153440, accessed 7/12/14)
Decentralization differs in federal versus unitary systems, the most important of which is constitutional: the decentralization of authority in
federal states has a constitutional basis, often supported by explicit institutions, whereas decentralization in unitary states is legislative or by
decree. Per condition F5, this means that decentralization in unitary states remains at the discretion of the central government. And what is
given may be taken back. We should not overdraw this distinction, however. Constitutions are mere parchment, and many constitutional are
honored in the breach or simply ignored.17 Some
constitutionally federal systems, such as the Soviet Union or
Mexico prior to the early 1990s, are highly centralized in which subnational governments function as
administrative units of the national government. Similarly, constitutionally unitary states, such as modern
China, have devolved power in sufficient ways that maintaining the system is no longer at the discretion
of the central government. What matters, therefore, is not simply whether decentralization is constitutionally mandated, but
what mechanisms subnational governments have at their disposal to protect their independence. A classic
constitutional mechanism is the explicit representation of states in a national Senate, as in Argentina, Germany, and the United States. This
gives states a forum within which to pursue their collective interest and, potentially, to defend these interests against encroachments by the
center.18 As Riker (1964) observed, absent
mechanisms to protect the subnational government autonomy, the
central government has a tendency to “overawe” the states and make the system more centralized. This
has happened in both India and Mexico, and appears to be happening in contemporary Russia. Similarly, a center that is too weak
cannot prevent encroachments on the common whole, such as internal trade barriers or subnational governments forcing the center to bail out
their deficits. Russia during the mid-1990s exhibited some of these qualities, as did Argentina in the late 1980s and early 00s.
New plans key
Despite recent changes in structure, there is still no set institutional frameworkfuture policy will set the tone for federal-state cooperation
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
Congress essentially turned OCSLA into a multiple-use statute, authorizing the MMS to lease areas on
the EEZ for aquaculture, oil drilling, alternative energy projects and reusing already-placed oil platforms
for "alternate uses" without providing any hierarchy of uses or suggestions for a desirable mix of uses. n244 The MMS is
drafting regulations to implement these provisions, is developing a Renewable Energy and Alternate Use Program, and recently published an
Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act. n245 In the EIS, the MMS only considered the next
five to seven years as a time frame. n246 The potential projects it has contemplated approving "include, but are not limited to, offshore wind,
wave, ocean current, and solar energy capture technologies." n247 Further, alternative uses of previously sited oil platforms include "offshore
aquaculture, research, education, recreation, support for other offshore operations and facilities, and telecommunications." n248 While
Congress did not initiate a planning process for overall EEZ development, it authorized the MMS to move ahead with offshore developments.
n249 As already indicated in the EIS that the MMS has prepared, the immediate plan is for facilitation of projects that industry has indicated
they are interested in at this time, which provides a rationale for limiting the focus of the EIS to the next five-to seven-year time frame. n250
Looking forward, statutes
governing additional aspects of offshore development are being developed that
are likely to supplement these OCSLA provisions or to replace them for particular uses. n251 However, the
ideas being exchanged by policymakers [*1396] frequently model OCSLA by using leasing provisions to obtain competitive bids, bonuses, and
rental payments, in addition to some form of royalties on profits. n252 Although the National Offshore Aquaculture Act of 2005, drafted and
promoted in large part by NOAA, has yet to be adopted by Congress, it
is likely that some form of new aquaculture
legislation will soon come to bear on open-ocean fish farming. n253 The Bush Administration vowed to increase
aquaculture five-fold, in part to balance the trade deficit in farmed fish and to provide a local source of fish currently demanded by the
American marketplace. n254 Some of the elements of the National Offshore Aquaculture Act of 2005 reflect lessons learned under OCSLA, such
as the need to require bonds for clean-up and removal of offshore structures. Congress also amended the CZMA in anticipation of aquaculture.
n255 Development conflicts
continue, and progress is hampered by states and the federal government
often acting alone rather than in tandem. The interest in offshore development and recent attention to
the need for legislative reform present an important opportunity to engage in structuring an
institutional framework for sustainable development offshore.
Federalism disputes are coming now- must be consistent in application of power
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
In a recent article on the emergence of additional offshore uses, Professor John A. Duff urged that we extend our lessons from public lands
management to offshore management. n257 Professor Duff specifically looked to the Federal Lands Policy and Management Act (FLPMA),
adopted by Congress in 1976, to distill important policy goals such as retention of public lands, conservation, and multiple-use sustained yield
management principles. n258 One
aspect of public lands management that is a potential source of ways to
improve offshore management is the resolution of federalism conflicts. Several cases involving natural
resource management conflicts on the public lands illustrate the inevitability of the unfolding ocean
federalism disputes. These cases often involve wildlife or conservation objectives or plans for natural
resource development. n259 Two constitutional provisions, the Property Clause n260 and the Supremacy Clause, n261 are often at
issue in these federalism disputes on public lands. n262 In addition to the Property Clause, constitutional provisions such as the Commerce
Clause, the Navigational Servitude (implicit in the Commerce Clause), n263 and the [*1398] so-called War Power n264 also sustain the legality
of federal activities outside of federally owned lands and have been tested thoroughly in the context of onshore water regulation and
development. n265 These constitutional
provisions have generally been applied to support federal government
actions beyond the boundaries of federal property. n266 But in designing our model of federalism, the
Founders enabled potential activities of multiple sovereign powers within the United States. n267 This
framework's design creates a tension with states at physical borders, particularly in the modern
environmental law and natural resources context where a transition to ecosystem management is
sought. n268
New court rulings will affect state power for years to come
Gaylord ’13 (Scott, associate professor of law at Elon University School of Law, States Need to Keep Federal Power From Overstepping,
New York Times, http://www.nytimes.com/roomfordebate/2013/07/16/state-politics-vs-the-federal-government/states-need-more-controlover-the-federal-government, accessed: 7/10/14 GA)
As the old saying goes, all politics are local. State and federal governments affect our daily lives in numerous ways. Yet, in our federal system,
there is supposed to be a balance between federal and state power. As James Madison envisioned it in Federalist No. 51, “the power
surrendered by the people” would be “divided between two distinct governments,” creating a balance of power that would enable the
“different governments [to] control each other.” Under the United States Constitution, the
federal government has broad
authority in specific enumerated areas, but its power is not unlimited. State government plays a critical role in all
those areas that are not left exclusively to the federal government. As a result, state politics are
extraordinarily important because states are charged with protecting the welfare, safety and health of their citizens (which is one
reason why roughly 95 percent of criminal court cases are handled in state courts). At least since the New Deal, however, the balance of power
has shifted decisively in favor of federal politics. The
expansion of administrative agencies and other federal programs
have encroached on state sovereignty, often with little or no resistance from the states themselves. Fortunately, governors and
state attorneys general have begun to challenge overstepping by the federal government. But the winds of change are blowing in states across
the country. Governors and state attorneys general have begun to challenge what they view as the federal government’s overstepping its
constitutionally prescribed role. In 2010, more than 20
states filed suit against the federal government claiming that
the Patient Protection and Affordable Care Act exceeded Congress’s power. In addition, state attorneys
general have successfully challenged various actions by the Environmental Protection Agency and other
federal agencies, using state politics to protect the vertical separation of powers. Moreover, recent Supreme
Court decisions provide a glimmer of hope to those championing state sovereignty. In National Federation of Independent Business (N.F.I.B.) v.
Sebelius,
a majority of the court determined that the individual mandate under the health care act
exceeded Congress’s commerce clause power. In Shelby County v. Holder, the court held that Congress unconstitutionally
infringed on state sovereignty by using an outdated formula under the Voting Rights Act to decide which states had to get federal approval
before changing their voting laws. In United States v. Windsor, the court emphasized that the Defense of Marriage Act was unconstitutional in
part because the regulation of domestic relations has always been left to the exclusive province of the states. Yet even in these cases, federal
supremacy lurks in the background, ready to limit the reach of state political power. According to the court, Congress had ample taxing power
to enact the individual mandate; Congress can propose a new formula under Section Four of the Voting Rights Act; and state control over
domestic relations remains subject to the federal Constitution. As evidenced by the court’s 5-4 decisions in N.F.I.B., Shelby County and Windsor,
the Supreme Court has been the last arbiter of the balance between state and federal power, and that balance is dictated by the narrowest of
margins. Consequently,
federal politics, including the next Supreme Court appointment, may determine
the scope of state sovereignty for years to come.
Impact
Modeling
Generic
US federalism modeled now
Tarr 05
Chair of the Department of Political Science at Rutgers University [G. Alan Tarr “United States of America” appearing in John Kincaid and G.
Alan Tarr, editors Constituional Origins, structure and change in federal democracies” McGill Queen’s University Press, Montreal and
Kingston: 2005 pg 382]
The United States of America is the world's oldest, continuing, modern federal democracy. Indeed, the framers of the United
States Constitution are widely regarded as the inventors of modern federalism, as distinct from ancient forms of
federalism, especially confederalism. The US Constitution has been influential as a model of federal
democracy, and key principles of the Constitution - such as federalism, the separation of powers, an independent
judiciary, and individual rights - have gained acceptance worldwide. Americans believe that the nation's success owes much
to the brilliance of the Constiution's drafters. Yet neither the Constitution, nor the federal polity it created,
has remained static. Amendments adopted after the Civil War (186 1 -65) altered the federal-state balance, and the authorization of a
federal income tax in the Sixteenth Amendment (1913) greatly augmented the fiscal power of the federal government. The Constitution has also
both influenced and been influenced by political and social developments, including the transformation of the United States from a few states
hugging the Atlantic Coast to a continental nation and also from a country recently liberated from colonial rule to an economic and military
superpower.
Environment
Federalism in the US is modeled globally—especially in the context of environmental
policy
Sovacool 08 (Benjamin, Research Fellow in the Energy Governance Program at the Centre on Asia and Globalization, Adjunct Assistance
Professor at the Virginia PI and University in Blacksburg VA Wrote a book, PhD in Science and Technology, Stanford Environmental Law Journal,
June, 27 Stan. Envtl. L.J. 397)
Third, other countries
continue to model American-style federalism. Germany, the Republic of Austria,
Russian Federation, Spain, India, and Nigeria have all based parts of their government structure on
American federalism, choosing to decentralize power by adopting constitutions that are more federalist
than the ones that they have replaced. n24 The "American experience with ... federalism," writes John
Kincaid, "may have useful implications for an emerging federalist revolution worldwide." n25 Mikhail Gorbachev
even stated that "the phenomenon of federalism affects the interests of the entire global community." n26
Given such trends, it seems likely that other countries may model American environmental federalism. If this
is the case, ensuring that the United States government addresses renewable energy and climate policy at
the proper scale becomes even more important for the signal it sends to the world.
Solve conflict
US federalism is modeled globally—promotes peace and innovation
Mallat 3 (Chibli, Ph.D., University of London, “Federalism in the Middle East and Europe” CASE WESTERN RESERVE JOURNAL OF
INTERNATIONAL LAW, Winter 2003, p. 3, http://content.lib.utah.edu/utils/getfile/collection/utlawrev/id/570/filename/14805.pdf)
Federalism is the quintessential American invention. I have had occasion to dwell on it recently in a work which was
published in English as a long series of newspaper articles which accompanied the 2000 presidential campaign in America, and appeared in
book shape in Arabic in August 200I. It dwells on what
makes America successful, its achievements, but also its limitations, and
concludes that the
excellence of law is one of the two distinctive features of pride for the American model — the other being science.
While this rooting in law is not particularly new to an American audience, what one may not perceive as
strongly from within the US is how much the world has been Americanized in terms of law. Laurence
Tribe, in Constitutional Choices,4 summarized what he calls the underlying political ideas of the American
system into a list of six categories: representative republicanism, federalism, separation of powers,
equality before the law, individual autonomy and procedural fairness. America has shared many of these traits with
other democracies for a long time, but two constitutional features stand out on a world level as typically American
— federalism and the Supreme Court. The American people deserve credit for both inventions which
brought new dimensions to democracy and the rule of law for the rest of the planet. Perhaps America does not
know it, but the world has been a consistently better place wherever her two home-grown intellectual
products have found anchor. In contrast, and as further illustration to this point, federalism and the protection of law
by an independent supreme court appear as the two missing ingredients for a peaceful and creative
future in the many countries and regions that do not know them.
US federalism is modeled worldwide—solves conflict
Calabresi ’95 (Steven G., Assistant Prof – Northwestern U., Michigan Law Review, "A Government of
Limited and Enumerated Powers": In Defense of United States v. Lopez”, JSTOR)
First, the rules of constitutional federalism should be enforced because federalism is a good thing, and it is
the best and most important structural feature of the U.S. Constitution. Second, the political branches cannot be relied upon to enforce
constitutional federalism, notwithstanding the contrary writings of Professor Jesse Choper. Third, the
Supreme Court is
institutionally competent to enforce constitutional federalism. Fourth, the Court is at least as qualified to act in this area
as it is in the Fourteenth Amendment area. And, fifth, the doctrine of stare [*831] decisis does not pose a barrier to the creation of any new,
prospectively applicable Commerce Clause case law. The conventional wisdom is that Lopez is nothing more than a flash in the pan. 232 Elite
opinion holds that the future of American constitutional law will involve the continuing elaboration of the Court's national codes on matters like
abortion regulation, pornography, rules on holiday displays, and rules on how the states should conduct their own criminal investigations and
trials. Public choice theory suggests many reasons why it is likely that the Court will continue to pick on the states and give Congress a free ride.
But, it
would be a very good thing for this country if the Court decided to surprise us and continued on its
way down the Lopez path. Those of us who comment on the Court's work, whether in the law reviews or in the newspapers, should
encourage the Court to follow the path on which it has now embarked. The country and the world would be a better place if it did. We have
seen that a desire for both international and devolutionary federalism
has swept across the world in recent years. To a
is due to global fascination with and emulation of our own American federalism
success story. The global trend toward federalism is an enormously positive development that greatly
increases the likelihood of future peace, free trade, economic growth, respect for social and cultural
diversity, and protection of individual human rights. It depends for its success on the willingness of
sovereign nations to strike federalism deals in the belief that those deals will be kept. 233 The U.S.
Supreme Court can do its part to encourage the future striking of such deals by enforcing vigorously our
own American federalism deal. Lopez could be a first step in that process, if only the Justices and the legal academy
significant extent, this
would wake up to the importance of what is at stake.
Democracy
Federalism k2 Demo
Federalism is key to global democracy
Wright, 97 (Robin, a contributing correspondent of The Washington Quarterly, covers the patterns of
democratization and other global issues for the Los Angeles Times, Washington Quarterly, Summer)
The most dynamic political trend promoting democracy worldwide in the 1990s is devolution, the
transfer of power beyond capitals and traditional elites in ways that are in turn redefining democracy's
scope and application. It is now the frontline of democratization in Latin America, Central Europe, Africa,
and Asia. The most radical experiment in Latin America is Bolivia's new "popular participation" program, which is devolving power and
resources long concentrated in three urban centers to 311 municipalities. The project effectively expedites democracy. Towns and villages no
longer have to appeal to regional or national authorities for everything from electricity to school desks. The goal is for communities to provide
services and handle problems according to local needs and priorities as a check against the abuse of power at the national level. Before the
transition to democracy began in the 1980s, Bolivia witnessed 189 coups in 162 years. For the first time, popular participation has included the
country's majority -- the 65 percent indigenous population that has long been excluded by descendants of Spanish colonials. Many of Bolivia's
Aymara and Quechua Indians, whose civilizations date back millennia, are getting their first taste of modern power. In Africa, Mali's first
democratic government contends decentralization works because it forces engagement. The West African state, which is twice the size of
Texas, has shifted control of key administrative and financial functions, including education, health, and development, to more than 500 rural
and urban communities. Each locality fixes tax rates and allocates revenues. To allow local direction and limit corruption, each area also
negotiates directly with foreign aid groups. Devolution
also helps block democracy's undoing by dispersing power
beyond the reach of armies or strongmen -- a recent problem among Mali's neighbors. Democratic progress in Niger and Gambia has
been reversed by military intervention, while Nigeria's army stepped in to void results of the oil-rich state's first democratic elections. Former
dictators have won democratic elections in Benin and Burkino Faso. And irregularities have marred elections in Mauritania, Guinea-Bissau, and
Equatorial Guinea. Devolution can also provide a mechanism to ease ethnic or sectarian disparities. Ethiopia
boasts one of Africa's most radical experiments in devolution in an attempt to prevent further dismemberment. Differences among its 80 ethnic
groups -- which use a dozen major languages and three alphabets -- have spawned a host of conflicts during both monarchial and communist
rule. (Eritrea broke away in 1993.) As part of its still-tentative transition to democracy, Ethiopia has introduced a new constitution that divides
55 million people into nine ethnic-based states. It also bestows major powers of self-administration and even the right to secede. The motive
for transferring power is not always altruistic. Devolution often also represents an attempt to transfer the onus of solutions beyond central
governments no longer able to provide services or answers. In reaction to the strong centralization of communism, democratic Poland is
moving in the opposite direction as the state devolves power to gaminas, local communities of various sizes run by councils now locally elected.
Warsaw has several gaminas, whereas a rural gamina may include several villages. Among all the units of government, gaminas now have the
highest public support. n15 In 1996, the state began to transfer control of education to gaminas, which are now allocated about 10 percent of
national revenues. Gaminas also collect local taxes, although income varies widely depending on local resources. But the combination of local
and state funds is often insufficient to pay for schools and other services the federal government once provided. As a result, some communities
have actually appealed to Warsaw to reassume responsibility for schools. Devolution is also not without basic conceptual problems. In many
places, shortcomings include poorly educated or inexperienced new officials, including some who can barely read or who know virtually nothing
about budgets and managing a municipality. Initial projects have often been flashy rather than thoughtful infrastructure schemes. Local areas
are also not immune to corruption, which in Bolivia led to installation of "vigilance committees" to oversee its mayors. Yet as in many places,
the government in La Paz contends devolution
is still the best mechanism for both the initial democratization
process and subsequent stabilization. Devolution shares problems as well as power. It introduces a
wider array of players to shoulder the burdens as well as to have a stake in the outcome. And by
embracing men and women in the most remote rural corners of countries, devolution also prevents or
defuses the flashpoints behind competition and strife.
US leadership on federalism is essential to democracy worldwide
David Broder, Washington Post, June 24, 2001, “Lessons On Freedom.” Broder was a pulitzer prize
recipient and reciepient of 16 honory degrees, earned a bachelor’s degree in liberal arts from the
University of Chicago in 1947 and continued his studies there, receiving a master’s degree in political
science in 1951.
Even more persistent were the questions about the role the United States would play,
under this new administration, in supporting democratic movements around the
world. It is sobering to be reminded how often, during the long decades of the Cold War, this country backed (and in some cases,
created) undemocratic regimes, simply because we thought military rulers and other autocrats were more reliable allies against
communism. The week of the Salzburg Seminar coincided with President Bush's first tour of Europe. He was a target of jokes and
ridicule for many of the fellows as the week began. But the coverage of his meetings and, especially, his major address in Poland on
his vision of Europe's future and America's role in it, earned him grudging respect, even though it remains uncertain how high a
priority human rights and promotion of democracy will have in the Bush foreign policy. Another great lesson for an American reporter
is that the
struggle to maintain the legitimacy of representative government in the eyes
of the public is a worldwide battle. Election turnouts are dropping in almost all the established democracies, so
much so that seminar participants seriously discussed the advisability of compulsory voting, before most of them rejected it as
smacking too much of authoritarian regimes. Political parties -- which most of us have regarded as essential agents of democracy -are in decline everywhere. They are viewed by more and more of the national publics as being tied to special interests or locked in
increasingly irrelevant or petty rivalries -- anything but effective instruments for tackling current challenges. One large but unresolved
question throughout the week: Can you organize and sustain representative government without strong parties? The single most
impressive visitor to the seminar was Vaira Vike-Freiberga, the president of Latvia, a woman of Thatcherite determination when it
comes to pressing for her country's admission to NATO, but a democrat who has gone through exile four times in her quest for
freedom. She is a member of no party, chosen unanimously by a parliament of eight parties, and bolstered by her popular support.
But how many such leaders are there? Meantime, even as democracy is tested everywhere from Venezuela to Romania to the
Philippines, a new and perhaps tougher accountability examination awaits in the supranational organizations. The European Union has
operated so far with a strong council, where each nation has a veto, and a weak parliament, with majority rule. But with its
membership seemingly certain to expand, the
age-old dilemma of democracy -- majority rule vs.
minority and individual rights -- is bound to come to the fore. The principle of
federalism will be vital to its success. And, once again, the United States has important
lessons to teach. But only if we can keep democracy strong and vital in our own
country.
Impacts
That outweighs war
Rummel, 97 ( Prof of Political Science at University of Hawaii, “Democracy, Power, and Democide”
http://www.hawaii.edu/powerkills/SOD.CHAP17.HTM)
Our century is noted for its absolute and bloody wars. World War I saw nine-million people killed in battle, an incredi ble record that
was far surpassed within a few decades by the 15 million battle deaths of World War II. Even the number killed in twentieth century revolutions and civil wars have
set historical records. In total, this century's battle killed in all its international and domestic wars, revolutions, and violent conflicts is so far about 35,654,000.
Yet, even more unbelievable than these vast numbers killed in war during the lifetime of some still living, and largely
unknown, is this shocking fact. This century's total killed by absolutist governments already far exceeds that
for all wars, domestic and international. Indeed, this number already approximates the number that might be killed in
a nuclear war. Table 1 provides the relevant totals and classifies these by type of government (following Freedom House's definitions) and war. By government killed is meant any
direct or indirect killing by government officials, or government acquiescence in the killing by others, of more than 1,000 people, except execution for what are conventionally considered
criminal acts (murder, rape, spying, treason, and the like). This killing is apart from the pursuit of any ongoing military action or campaign, or as part of any conflict event. For example, the Jews
that Hitler slaughtered during World War II would be counted, since their merciless and systematic killing was unrelated to and actually conflicted with Hitler's pursuit of the war. The totals in
the Table are based on a nation-by-nation assessment and are absolute minimal figures that may under estimate the true total by ten percent or more. Moreover, these figures do not even
include the 1921-1922 and 1958-1961 famines in the Soviet Union and China causing about 4 million and 27 million dead, respectably. The former famine was mainly due to the imposition of a
command agricultural economy, forced requisitions of food by the Soviets, and the liquidation campaigns of the Cheka; the latter was wholly caused by Mao's agriculturally destructive Great
Leap Forward and collectivization. However, Table 1 does include the Soviet government's planned and administered starvation of the Ukraine begun in 1932 as a way of breaking peasant
opposition to collectivization and destroying Ukrainian nationalism. As many as ten million may have been starved to death or succumbed to famine related diseases; I estimate eight million
died. Had these people all been shot, the Soviet government's moral responsibility could be no greater. The Table lists 831 thousand people killed by free -- democratic -- governments, which
should startle most readers. This figure involves the French massacres in Algeria before and during the Algerian war (36,000 killed, at a minimum), and those killed by the Soviets after being
forcibly repatriated to them by the Allied Democracies during and after World War II. It is outrageous that in line with and even often surpassing in zeal the letter of the Yalta Agreement
signed by Stalin, Churchill, and Roosevelt, the Allied Democracies, particularly Great Britain and the United States, turned over to Soviet authorities more than 2,250,000 Soviet citizens,
prisoners of war, and Russian exiles (who were not Soviet citizens) found in the Allied zones of occupation in Europe. Most of these people were terrified of the consequences of repatriation
and refused to cooperate in their repatriation; often whole families preferred suicide. Of those the Allied Democracies repatriation, an estimated 795,000 were executed, or died in slave-labor
camps or in transit to them. If a government is to be held responsible for those prisoners who die in freight cars or in their camps from privation, surely those democratic governments that
turned helpless people over to totalitarian rulers with foreknowledge of their peril, also should be held responsible. Concerning now the overall mortality statistics shown in the table, it is sad
that hundreds of thousands of people can be killed by governments with hardly an international murmur, while a war killing several thousand people can cause an immediate world outcry and
global reaction. Simply contrast the international focus on the relatively minor Falkland Islands War of Britain and Argentina with the widescale lack of interest in Burundi's killing or
acquiescence in such killing of about 100,000 Hutu in 1972, of Indonesia slaughtering a likely 600,000 "communists" in 1965, and of Pakistan, in an initially well planned massacre, eventually
killing from one to three million Bengalis in 1971. A most noteworthy and still sensitive example of this double standard is the Vietnam War. The international community was outraged at the
American attempt to militarily prevent North Vietnam from taking over South Vietnam and ultimately Laos and Cambodia. "Stop the killing" was the cry, and eventually, the pressure of foreign
and domestic opposition forced an American withdrawal. The overall number killed in the Vietnam War on all sides was about 1,216,000 people. With the United States subsequently refusing
them even modest military aid, South Vietnam was militarily defeated by the North and completely swallowed; and Cambodia was taken over by the communist Khmer Rouge, who in trying to
recreate a primitive communist agricultural society slaughtered from one to three million Cambodians. If we take a middle two-million as the best estimate, then in four years the government
of this small nation of seven million alone killed 64 percent more people than died in the ten-year Vietnam War. Overall, the best estimate of those killed after the Vietnam War by the
victorious communists in Vietnam, Laos, and Cambodia is 2,270,000. Now totaling almost twice as many as died in the Vietnam War, this communist killing still continues. To view this double
standard from another perspective, both World Wars cost twenty-four million battle deaths. But from 1918 to 1953, the Soviet government executed, slaughtered, starved, beat or tortured to
death, or otherwise killed 39,500,000 of its own people (my best estimate among figures ranging from a minimum of twenty million killed by Stalin to a total over the whole communist period
of eighty-three million). For China under Mao Tse-tung, the communist government eliminated, as an average figure between estimates, 45,000,000 Chinese. The number killed for just these
two nations is about 84,500,000 human beings, or a lethality of 252 percent more than both World Wars together. Yet, have the world community and intellectuals generally shown anything
like the same horror, the same outrage, the same out pouring of anti-killing literature, over these Soviet and Chinese megakillings as has been directed at the much less deadly World Wars? As
can be seen from Table 1, communist governments are overall almost four times more lethal to their citizens than non-communist ones, and in per capita terms nearly twice as lethal (even
considering the huge populations of the USSR and China). However, as large as the per capita killed is for communist governments, it is nearly the same as for other non-free governments.
This is due to the massacres and widescale killing in the very small country of East Timor, where since 1975 Indonesia has eliminated (aside from the guerrilla war and associated violence) an
estimated 100 thousand Timorese out of a population of 600 thousand. Omitting this country alone would reduce the average killed by noncommunist, nonfree governments to 397 per
the more freedom in a nation, the
fewer people killed by government. Freedom acts to brake the use of a governing elite's power over life
and death to pursue their policies and ensure their rule. This principle appeared to be violated in two aforementioned special cases.
10,000, or significantly less than the 477 per 10,000 for communist countries. In any case, we can still see from the table that
One was the French government carrying out mass killing in the colony of Algeria, where compared to Frenchmen the Algerians were second class citizens, without
the right to vote in French elections. In the other case the Allied Democracies acted during and just after wartime, under strict secrecy, to turn over foreigners to a
communist government. These foreigners, of course, had no rights as citizens that would protect them in the democracies. In no case have I found a democratic
government carrying out massacres, genocide, and mass executions of its own citizens; nor have I found a case where such a government's policies have knowingly
Absolutism is not only many times
deadlier than war, but itself is the major factor causing war and other forms of violent conflict. It is a major cause of
militarism. Indeed, absolutism, not war, is mankind's deadliest scourge of all.
and directly resulted in the large scale deaths of its people though privation, torture, beatings, and the like.
Democratization solves nuclear war
Muravchik, 2k1 (Joshua, resident scholar The American Enterprise Institute, July 11-14,
http://www.npec-web.org/syllabi/muravchik.htm)
The greatest impetus for world peace -- and perforce of nuclear peace -- is the spread of democracy. In a
famous article, and subsequent book, Francis Fukuyama argued that democracy's extension was leading to "the end of history." By this he
meant the conclusion of man's quest for the right social order, but he also meant the "diminution of the likelihood of large-scale conflict
between states." (1) Fukuyama's phrase was intentionally provocative, even tongue-in-cheek, but he was pointing to two down-to-earth
historical observations: that democracies are more peaceful than other kinds of government and that the world is
growing more democratic. Neither point has gone unchallenged. Only a few decades ago, as distinguished an observer of international relations
as George Kennan made a claim quite contrary to the first of these assertions. Democracies, he said, were slow to anger, but once aroused "a
democracy . . . . fights in anger . . . . to the bitter end." (2) Kennan's view was strongly influenced by the policy of "unconditional surrender"
pursued in World War II. But subsequent experience, such as the negotiated settlements America sought in Korea and Vietnam proved him
wrong. Democracies are not only slow to anger but also quick to compromise. And to forgive. Notwithstanding the insistence on unconditional
surrender, America treated Japan and that part of Germany that it occupied with extraordinary generosity. In recent years a burgeoning
literature has discussed the peacefulness of democracies. Indeed the
proposition that democracies do not go to war with
one another has been described by one political scientist as being "as close as anything we have to an
empirical law in international relations." (3) Some of those who find enthusiasm for democracy off-putting have challenged this
proposition, but their challenges have only served as empirical tests that have confirmed its robustness. For example, the academic Paul
Gottfried and the columnist-turned-politician Patrick J. Buchanan have both instanced democratic England's declaration of war against
democratic Finland during World War II. (4) In fact, after much procrastination, England did accede to the pressure of its Soviet ally to declare
war against Finland which was allied with Germany. But the declaration was purely formal: no fighting ensued between England and Finland.
That Freedom House could count 120 freely elected
governments by early 2001 (out of a total of 192 independent states) bespeaks a vast transformation in
human governance within the span of 225 years. In 1775, the number of democracies was zero. In 1776,
the birth of the United States of America brought the total up to one. Since then, democracy has spread at an accelerating
pace, most of the growth having occurred within the twentieth century, with greatest momentum since
1974. That this momentum has slackened somewhat since its pinnacle in 1989, destined to be
remembered as one of the most revolutionary years in all history, was inevitable. So many peoples were swept
up in the democratic tide that there was certain to be some backsliding. Most countries' democratic evolution has included
some fits and starts rather than a smooth progression. So it must be for the world as a whole.
Nonetheless, the overall trend remains powerful and clear. Despite the backsliding, the number and
proportion of democracies stands higher today than ever before. This progress offers a source of hope
for enduring nuclear peace. The danger of nuclear war was radically reduced almost overnight when
Russia abandoned Communism and turned to democracy. For other ominous corners of the world, we
may be in a kind of race between the emergence or growth of nuclear arsenals and the advent of
democratization. If this is so, the greatest cause for worry may rest with the Moslem Middle East where
nuclear arsenals do not yet exist but where the prospects for democracy may be still more remote.
Surely this is an exception that proves the rule. CONTINUES…
FREEDOM!
Fed key to Freedom
States are necessary to individual freedom, the Constitution leaves all reasonable law
making to the States
Hawkins ’13 (Dustin, law professor at The University of Pennsylvania law school, Federalism: Case for Reinvigorating State's Rights, US
conservatives, http://usconservatives.about.com/od/conservativepolitics101/a/The-Conservative-Case-For-Returning-Government-Power-ToThe-States.htm, accessed: 7/10/14 GA)
There is an ongoing battle over the proper size and role of the federal government, especially as it relates to conflicts with state governments
over legislative authority. Conservatives believe that state and local governments should be empowered to handle local issues such as
healthcare, education, immigration, and many other social and economic laws. There is little question that
the current role of the
federal government far exceeds anything ever imagined by the founders and has clearly taken over
many roles originally designated to individual states. The founding fathers, through the U.S. Constitution, sought
to limit the possibility of a strong centralized government and in fact gave the federal government a very
limited list of responsibilities. Simplified, the founders thought that the federal government should handle issues that it would be
difficult or unreasonable for states to handle such as the maintenance of military and defense operations, negotiating with foreign countries,
creating currency, and regulating commerce with foreign countries. Ideally,
individual states would then handle all most
matters that they reasonably could. The founders even went further in the U.S. Constitution’s Bill of Rights to prevent the federal
government from grabbing too much power. One of the clear benefits of a weaker federal government and stronger state governments is that
the needs of each individual state are more easily managed. Alaska, Iowa, Rhode Island, and Florida are all very different states with very
different needs, populations, and values. A law that may make sense in New York might make little sense in Alabama. For example: Some states
have determined it is necessary to prohibit the use of fireworks due to an environment that is highly susceptible to wild fires. Other states have
no such problems and have laws that allow fireworks. It would not be valuable for the federal government to make one standardized law for all
states prohibiting fireworks when only a handful of states need such a law in place.
State control also empowers states to
make tough decisions for their own well-being rather than hope that the federal government will see
the states’ problem as a priority. A strong state government also empowers citizens in two ways. First, state governments
are far more responsive to the needs of the residents of their state. If important issues are not
addressed, then voters can hold elections and vote in people they feel are better suited to handle the
problems. However, if an issue is only important to one state and the federal government has authority over that issue, then they have little
influence to get the change they seek as they are but a small part of a larger electorate. Second, empowered state governments
also allow individuals to choose the state that best fit their own personal values. Families and individuals are able
to choose states that either have no or low income taxes, or states with higher ones. They can opt for states with weak or
strong guns laws, with restrictions on marriage or without them, and so on. Some people may prefer to
live in a state that offers a wide range of government programs and services, others may not. But just as
the free market allows individuals to pick and choose products or services they like, so to can they
choose a state that best fits their lifestyle. An over-reaching federal government limits this option.
Federalism protects freedom
Calabresi 95
(Steven G., Asscociate professor at Northwestern University of Law, “A Government of Limited and
Enumerated Powers: In Defense of the United States v Lopez”, December 1995, Jstor)
Because it
often may be unclear what bundles of public goods are desirable at what cost, competition
among jurisdictions holds out the potential for a market mechanism that can provide an empirical
answer to the most important questions of governance.69 This argument has built into it two crucial assumptions: first,
that the policies adopted by the states do not generate significant externalities, a point I come back to; and second, that there be free
movement of capital and labor across state borders with no important residency requirements of any kind. Obviously, a right of exit is crucial to
any competition among jurisdictions because it is that right that allows market discipline of those jurisdictions that provide less desirable
bundles of public goods.70 Without a right of exit, a situation of jurisdictional monopoly prevails like that which exists under all uni- tary
national governments. Jurisdictional monopoly is conducive not only to a low-quality bundle of public goods; at the extreme, it could be said
also to lead to the denial of fundamental individual liberties. Jurisdictional
competition, then, is also beneficial because it
leads to the protection of liberty. If I dislike the laws of my home state enough and feel tyrannized by them enough, I
always can preserve my freedom by moving to a different state with less tyrannous laws. Some may think this liberty
argument for federalism is just another form of the argument already made that federalism leads to competition in the provision of public
goods. And, of course, if one wrongly believes that fundamental private liberties are "provided" by government as a public good, then these
two points indeed do collapse into each other. In fact, however, it turns out that fundamental
private liber- ties are actually
antecedent to government,71 and, therefore, the protection of those liberties through jurisdictional
competition is a great and additional benefit of federalism.
Impact
Protecting freedom is a priori – it cannot be sacrificed for anything
Petro in 74 (Sylvester Petro, professor of law at Wake Forest, Spring 1974, Toledo Law Review, p. 480)
However, one
may still insist on echoing Ernest Hemingway – "I believe in only one thing: liberty." And it is
it is unacceptable
to say that the invasion of one aspect of freedom is of no import because there have been invasions of
so many other aspects. That road leads to chaos, tyranny, despotism, and the end of all human
aspiration. Ask Solzhenstyn, Ask Milovan Djilas. In sum, if one believes in freedom as a supreme value and proper
ordering principle for any society aiming to maximize spiritual and material welfare, then every invasion
of freedom must be emphatically identified and resisted with undying spirit.
always well to bear in mind David Hume's observation: "It is seldom that liberty of any kind is lost all at once." Thus,
Violence/Conflict
Federalism prevents violence and war
Calabresi, 1995,Steven Law Prof @ NWU, December, 94 Mich. L. Rev. 752.
Small state federalism is a big part of what keeps the peace in countries like the United States and
Switzerland. It is a big part of the reason why we do not have a Bosnia or a Northern Ireland or a Basque country or a Chechnya or a Corsica or a
Quebec problem. American
federalism in the end is not a trivial matter or a quaint historical anachronism. American-style
it prevents
violence and war. It prevents religious warfare, it prevents secessionist warfare, and it prevents racial
warfare. It is part of the reason why democratic majoritarianism in the United States has not produced
violence or secession for 130 years, unlike the situation for example, in England, France, Germany, Russia, Czechoslovakia,
Yugoslavia, Cyprus, or Spain. There is nothing in the U.S. Constitution that is more important or that has done
more to promote peace, prosperity, and freedom than the federal structure of that great document. There is nothing in the
federalism is a thriving and vital institutional arrangement - partly planned by the Framers, partly the accident of history - and
U.S. Constitution that should absorb more completely the attention of the U.S. Supreme Court.
Federalism is key to preventing violence, secessions, and rebellions—prefer empirical
studies
Lawoti, 09- Professor of Political Science at Western Michigan University (Mahendra, “Federalism for
Nepal”, Telegraph Nepal, 3/18,
http://www.telegraphnepal.com/backup/telegraph/news_det.php?news_id=5041)//MC
Cross-national studies covering over 100 countries have shown that federalism minimizes violent
conflicts whereas unitary structures are more apt to exacerbate ethnic conflicts. Frank S. Cohen (1997)
analyzed ethnic conflicts and inter-governmental organizations over nine 5-year –periods (1945-1948 and 19851989) among 223 ethnic groups in 100 countries. He found that federalism generates increases in the incidence
of protests (low-level ethnic conflicts) but stifles the development of rebellions (high-level conflicts). Increased
access to institutional power provided by federalism leads to more low-level conflicts because local groups mobilize at
the regional level to make demands on the regional governments. The perceptions that conflicts occur in federal structure is not entirely
incorrect. But the conflicts are low-level and manageable ones. Often,
these are desirable conflicts because they are
expressions of disadvantaged groups and people for equality and justice, and part of a process that consolidates
democracy. In addition, they also let off steam so that the protests do not turn into rebellions. As the demands
at the regional levels are addressed, frustrations do not build up. It checks abrupt and severe outburst. That
is why high levels of conflicts are found less in federal countries. On the other hand, Cohen found high levels of
conflicts in unitary structures and centralized politics. According to Cohen (1997:624): Federalism moderates politics by expanding the
opportunity for victory. The increase in opportunities for political gain comes from the fragmentation/dispersion of policy-making
the compartmentalizing character of federalism also assures cultural distinctiveness by
offering dissatisfied ethnic minorities proximity to public affairs. Such close contact provides a
feeling of both control and security that an ethnic group gains regarding its own affairs. In general, such
power…
institutional proximity expands the opportunities for political participation, socialization, and consequently, democratic consolidation.
Saidmeman, Lanoue, Campenini, and Stanton’s (2002: 118) findings also support Cohen’s analysis that federalism influences peace and
violent dissent differently. They used Minority at Risk Phase III dataset and investigated 1264 ethnic groups. According to Saideman et al.
(2002:118-120): Federalism reduces the level of ethnic violence. In a federal structure, groups at the local level can
influence many of the issues that matter dearly to them- education, law enforcement, and the like. Moreover, federal arrangements
reduce the chances that any group will realize its greatest nightmare: having its culture, political and educational institutions destroyed
by a hostile national majority. These
broad empirical studies support the earlier claims of Lijphart, Gurr, and Horowitz
that power sharing and autonomy granting institutions can foster peaceful accommodation and
prevent violent conflicts among different groups in culturally plural societies. Lijphart (1977:88), in his
award winning book Democracy in Plural Societies, argues that "Clear boundaries between the segments of a plural society have the
advantage of limiting mutual contacts and consequently of limiting the chances of ever-present potential antagonisms to erupt into
actual hostility". This is not to argue for isolated or closed polities, which is almost impossible in a progressively globalizing world. The
case is that when quite distinct and self-differentiating cultures come into contact, antagonism between them may increase. Compared
to federal structure, unitary structure may bring distinct cultural groups into intense contact more rapidly because more group members
may stay within their regions of traditional settlements under federal arrangements whereas unitary structure may foster population
movement. Federalism reduces conflicts because it provides autonomy to groups. Disputants within federal
structures or any mechanisms that provide autonomy are better able to work out agreements on more specific issues that surface
repeatedly in the programs of communal movement (Gurr 1993:298-299). Autonomy agreements have helped dampen rebellions by
Basques in Spain, the Moros in the Philippines, the Miskitos in Nicaragua, the people of Bangladesh’s Chittagong Hill Tracts and the
affairs of Ethiopia, among others (Gurr 1993:3190) The Indian experiences are also illustrative. Ghosh (1998) argues that India state
manged many its violent ethnic conflicts by creating new states (Such as Andhra Pradesh, Gujurat, Punjab, Harayana, Arunachal Pradesh,
Goa, Himachal Pradesh, Meghalaya, Mizoram and Nagaland) and autonomous councils (Such as Darjeeling Gorkha Hill Council, Bodoland
The basic idea,
was to devolve powers to make the ethnic/linguistic groups feel that their
identity was being respected by the state. By providing autonomy, federalism also undermines militant
appeals. Because effective autonomy provides resources and institutions through which groups can make significant progress toward
their objectives, many ethnic activities and supporters of ethnic movements are engaged through such arrangements. Thus it builds
long-term support for peaceful solutions and undermines appeals to militant action (Gurr 1993:303).
Autonomous Council, and Jharkhand Area autonomous Council, Leh Autonomous Hill Development Council).
according to Ghosh (1998:61),
Policies of regional devolution in France, Spain and Italy, on the other hand, demonstrate that establishing self-managing autonomous
regions can be politically and economically less burdensome for central states than keeping resistant peoples in line by force: autonomy
arrangements have transformed destructive conflicts in these societies into positive interregional competition". Federalism for Nepal
Federalism is essential in plural countries like Nepal because it provides cultural autonomy to different
cultural groups within a country. By allowing ethnic groups to govern themselves in cultural and developmental matters, it lessens their
conflicts with the central state. Many of the conflicts of the identity movements are in cultural issues like religion, language, education
and so on. Once regional governments are established, either the contesting parties from their own governments at the regional level,
and decides in those matters, and/or influence the outcome because their proportional presence at the regional level is more than in the
national level. Thus, many ethnic and linguistic groups can effectively put more pressure to the regional governments. Under unitary
system, numerous regionally concentrated groups have not been able to put pressure on the central government because their
conflicts
will be regionally focussed. Hence, many of the conflicts will decrease in intensity and strength at
the central level. The bureaucracy will also increasingly reflect the regional composition because the regional governments would
population and voice are small at the central context. Even if they are not, their nature will become different. Some of the
hire local people in the administration. Bureaucrats with knowledge of local languages and specific local problems will be able to provide
relatively more efficient administration. This will also reduce conflicts. Inclusion of more ethnic members into regional politics and
administration will ensure more public politics directed toward regional needs, instead of irrelevant policies directed by the center. This
will contribute to reducing conflicts arising out of mal-distribution of resources. If minorities want some form of autonomy to protect and
promote their culture, develop their people and regions, and self-determine their future, they are likely to struggle for it unless some
autonomy is provided. The struggle might take different form in different periods due to varying circumstances. Even if unfavorable
circumstances may lead to non-actions during some periods, favorable
conditions for mobilizations in other periods
may lead to more activities, perhaps in violent ways. The growth of ethnic movements in Nepal after 1990 is an example. Thus,
to address the conflicts arising out of issues of identity and cultural rights that are inherent human aspirations, autonomy is essential.
Granting of federalism would in all likelihood bring an end to ethnic insurgencies like the Khambuwan
Mukti Morcha because it meets their major demand. It will also prevent the possibilities of other ethnic insurgencies with demand for
Territorial federalism can work for the benefit of large ethnic groups concentrated
regionally but may not be able to address problems of the numerous low populated ethnic groups or groups that are not
federalism.
concentrated because they may not form majorities anywhere. For these groups, non-territorial federalism, as in Belgium, Austria etc.
may address their needs. In non-territorial federalism, members of ethnic groups have rights to decide about their culture, education,
language and so on by electing councils who have jurisdiction over cultural, social and developmental realms. The problems of the dalit
and small ethnic groups can be addressed through non-territorial federalism. Federalism and its critics in Nepal The dominant group in
Nepal often argues against federalism by raising the fear of secession. I have argued elsewhere that this fear is misplaced. In demanding
only a few of the rights that mainly deal with cultural and social issues, the minority groups acknowledge that advantages of staying
within the existing nation-state. On the other hand,
devolution helps to avert separatism because granting of
devolution meets substantial demand of the minorities. However, power has to be devolved in ways that make the
state and minorities perceive benefit form it. Large numbers of ethnic groups with small population further minimize the secessionist
possibilities in Nepal, if any. The lack of resources and difficult topography of settlement in may cases make the creation and sustenance
of smaller independent nations difficult, more so when the groups are in a state of under development. On the other hand, experience
elsewhere demonstrates that absence of autonomy may lead to secessionist movements. Federalism was
considered "slippery" in the 60s in Sri Lanka when the Tamils demanded autonomy. Today, autonomy does not satisfy the demands of
federalism, in fact, may contribute in keeping a
country together by satisfying communities have power over themselves, there is less need to
secede; hence, a federal structure can keep different communities united within a nation-state
framework. Where cultural autonomy has not been provided, many countries have seceded or are
undergoing civil war or violent ethnic conflicts. Many in Nepal ignorantly argue that a small country like Nepal does
the movement that arouse out of its denial (Stepan 1999). Hence
not need a federal structure. However, federal countries like Belgium, Switzerland, Israel, Papua New Guinea, Holland and Austria have
less population than Nepal. This belies the widespread fallacy that ‘small’ country like Nepal does not require federalism. The difficult
geographic terrain and the problems of transportation and communication, on the other hand, make Nepal effectively larger than its
area and population indicates. The perception that Nepal is a small country is due to its sandwiched position between the world’s two
most populous countries. In terms of real and effective population, geography and cultural diversity, Nepal is not a small country. In fact,
it is the 40th populous country among 227 countries in the world as of 2002 (US Census Bureau 2002). Federalism
in not only in
the interests if the marginalized groups, however. It is also in the interests of the dominant
community because it lessens the underlying reasons for conflicts. Conflicts are more costly to the
privilege sections of the society; hence as a toll for lessening the conflicts, federalism can serve the
interests of the dominant community as well. Excerpts from the book "Nepal Tomorrow: Voices and visions" edited by
D.B. Gurung.
Secessionism causes global wars
Gottlieb, 93 (Gidon, Director of the Middle East Peace Project and Visiting Fellow at Council on
Foreign Relations, Nation Against State, 127-7)
Self-determination unleashed and unchecked by balancing principles constitutes a menace to the society of states.
There is simply
no way in which all the hundreds of peoples who aspire to sovereign independence can be granted a state of their own without loosening
fearful anarchy and disorder on a planetary scale. The proliferation of territorial entities poses
exponentially greater problems for the control of weapons of mass destruction and multiplies situations in which
external intervention could threaten the peace. It increases problems for the management of all global issues,
including terrorism, AIDS, the environment and population growth. It creates conditions in which domestic strife in
remote territories can drag powerful neighbors into local hostilities, creating ever widening circles of conflict.
Events in the aftermath of the breakup of the Soviet Union drove this point home. Like Russian dolls, ever smaller ethnic groups dwelling in
larger units emerged to secede and to demand independence. Goergia, for example, has to contend with the claims of South Ossetians and
Abkhazians for independence, just as the Russian federation is confronted with the separatism of Tartaristan. An international system made up
of several hundred independent terriatorial states cannot be the basis for global security and prosperity.
Countries adopt decentralization for a laundry list of reasons—protects countries
against external conflict, achieves economies of scale, and are easier to mange
Brancati 5 (Dawn, Harvard University Institute for Quantitative Political Science, “Decentralization: Fueling the Fire or Dampening the
Flames of Ethnic Conflict and Secessionism”, http://www.nyu.edu/gsas/dept/politics/seminars/brancati_f05_paper.pdf)
Many countries, moreover, have adopted decentralization for reasons other than the need to manage
ethnic conflict and secessionism. Some countries, like the United States and Canada, have adopted
decentralized systems of government in order to unite different territories into a single country protect
themselves against external military threats (Hamilton, Madison and .Jay, 1987; Hiker, 1964), and achieve economies
of scale (Hamilton, Madison and Jay. 1987: Alesina and Spolare, 1997; Bolton and Roland, 1997). Some countries also have
decentralized systems of government because they are large and cannot be easily managed from a
single central government located far away from most of its constituents (Panizza, 1999; Treisman. 2002). Other countries, like
Nigeria and South Africa. have decentralized systems of government because they are former colonies of the United Kingdom. The
United Kingdom used decentralization to maintain control over its colonies - many of which have continued to use
decentralization after gaining independence because decentralization entrenched regional elites, who
were unwilling to relinquish power once their colonies gained independence (Young, 1994; Elerbst, 2000). Other
colonial powers, including France and Spain, did not use this system of government to maintain control over their colonies, even though their
colonies were very diverse ethnically and religiously.
Econ
General
Federalism is key to the economy
Katz, Vice Pres and Dir-Metropolitan Policy Program, 12
(Bruce, February 06, “Remaking Federalism to Remake the American Economy”, Campaign 2012 Papers, No. 3, LL)
To achieve these twin goals, the
U.S. needs to restructure the economy from one focused inward and characterized
by excessive consumption and debt, to one globally engaged and driven by production and innovation. It must do so
while contending with a new cadre of global competitors that aim to best the United States in the next industrial revolution and while
leveraging the distinctive assets and advantages of different parts of the country, particularly the major cities and metropolitan areas that are
the engines of national prosperity. This is the tallest of economic orders and it is well beyond the scope of exclusive federal solutions, the
traditional focus of presidential candidates in both political parties. Rather, the
next President must look beyond Washington
and enlist states and metropolitan areas as active co-partners in the restructuring of the national
economy. Remaking the economy, in essence, requires a remaking of federalism so that governments at all
levels “collaborate to compete” and work closely with each other and the private and civic sectors to
burnish American competitiveness in the new global economic order. The time for remaking federalism could not be
more propitious. With Washington mired in partisan gridlock, the states and metropolitan areas are once again playing their traditional roles as
“laboratories of democracy” and centers of economic and policy innovation. An
enormous opportunity exists for the next
president to mobilize these federalist partners in a focused campaign for national economic renewal.
Given global competition, the next president should adopt a vision of collaborative federalism in which: the federal government leads where it
must and sets a robust platform for productive and innovative growth via a few transformative investments and interventions; states
and
metropolitan areas innovate where they should to design and implement bottom-up economic
strategies that fully align with their distinctive competitive assets and advantages; and a refreshed set of
federalist institutions maximize results by accelerating the replication of innovations across the federal,
state and metropolitan levels.
Competitiveness
Federalism encourages economic competitiveness- finds the best policies
Feld, Zimmermann, and Döring 2004
(Lars P., Full Professor of Economics, particularly Economic Policy at the Uni versity of Freiburg, Horst,
Thomas, Professor at Humbolt University of Berlin, “Federalism, decentralization, and economic
growth”, Marburger volkswirtschaftliche Beiträge 2004,30,
http://www.econstor.eu/handle/10419/29883, accessed 7/12/14)
2.2 Federalism and decentralization as a growth-generating process Because of the regionally differentiating effects of growth processes, the
question must be more precisely, how federalism actually influences economic development: Which impact on regional development processes
should be ascribed to the fiscal federalism and in particular to fiscal competition? Usually economists
evaluate competition
positively as the main force creating a high variability and quality of product supply and the possibility
that individuals can pursue their preferences. Tiebout’s metaphor (1956) of voting by feet thus implies that competition
has positive effects that mainly develop in a dynamic economy. A decentralized experimentation of new
governmental solutions for economic problems occurs such that new solutions are adapted by
competing jurisdictions. Competition between jurisdictions thus becomes a discovery process which
enhances the prospects of political innovation. Federalism and decentralization lead to a higher innovative capacity of the
political system. Already in 1932, Louis Brandeis, judge at the U.S. Supreme Court, summarized this argument in the following way: lt is one of
the happy incidents of the federal system that a
single courageous State may, if its citizens choose, serve as a laboratory; and
try novel social and economic experiments without risk to the rest of the country (quoted from Oates 1999, p. 1132). In
this context Oates (1999) speaks of laboratory federalism’ and points out that the reform of welfare in the USA in 1996 followed exactly these
considerations (Inman and Rubinfeld 1997). This competition may induce regions to create favorable conditions for the use of agglomeration
advantages and to counter agglomeration disadvantages (Zimmermann 1990). In a slightly different fashion, Weingast (1995) points to the
advantages of a ‘market preserving federalism’. Starting from a ,,fundamental political dilemma”, according to which “a government strong
enough to protect property rights and enforce contracts is also strong enough to confiscate the wealth of its citizens” (p. 1), he considers
competitive federalism
as a chance to reduce the scope of the government and thus to maintain market
efficiency. Because of the better migration chances of mobile investors, the governments of sub-central
jurisdictions conduct investor-friendly policies and adopt solutions promoting market outcomes. Weingast
continues an earlier analysis by Hayek (1939), according to which ,,planning in a federation cannot assume the forms which today are preeminently known under this term; ... In a federation economic policy will have to take the form of providing
a rational permanent
framework within which individual initiative will have the largest possible scope and will be made to
work as beneficently as possible’ (p. 268). This competition appears as particularly favorable, whenever fiscal regimes do not
provide a reliable protection against excessive taxation (Schnellenbach 2003). Similar conclusions can be drawn from the political economy
analysis by Brennan and Buchanan (1980). Weingast does however not provide more precise considerations as to the growth effects of
federalism. He only considers to the advantageous regulatory framework in England in the 18(11 century and in the US in the 1gth century as
such systems of market- preserving federalism’. Rodden and Rose-Ackerman (1997) doubt that matters are so simple. They argue that
decentralized government may follow the demand of local interest groups and possibly protect these by protectionist measures from external
competion instead of serving the general interests of mobile investors. Whether federalism produces market-preserving or protectionist
policies thus depends on further elements of the institutional framework. The
higher innovative capacity of federations as
compared to unitary states as possible explanations of differences in economic development is also
contested in general. In a decentralized system, citizens use the performance of the governments of other
jurisdictions as yardstick when considering their re-election (‘yardstick competition’ according to Salmon 1987, Besley
and Case 1995, Feld, Josselin and Rocaboy 2003). A government is re-elected if it provides a bundle of services and tax prices that are at least
not worse as compared to other jurisdictions. Governments thus have incentives to initially wait to see
which policies of other
jurisdictions turn out to be relatively successful, and then imitate these. Uncertain about their re-election prospects,
governments have an incentive to free ride with respect to the policy innovations of other jurisdictions such that the absolute amount of policy
innovations in a federation is reduced (Rose-Ackerman 1980). Strumpf (2002) emphasizes that this free-rider position strongly depends on
homogeneity and on the number of jurisdictions. Heterogeneous jurisdictions less probably free ride, because it pays off to them to proceed
with custom-made policy innovations. Kotsogiannis and Schwager (2001) argue that in a federation policy innovations offer the possibility to
selfish politicians to obtain personal advantages while marketing them as the result of the uncertainty of policy innovations. Schnellenbach
(2003a) takes the incentives of voters in a decentralized process of political innovations into account. As voters are normally rationally ignorant
— due to the low incentives to be politically n formed — policy innovations are mainly possible in times of crises. The
incentives of
citizens to be informed about policy innovations are improved by high mobility and by elements of
direct democracy in political decision-making processes. Thus, political rents of governments can be reduced by
competition and politicians have incentives to innovate.
Leadership
Federalism Key to Heg
US leadership is preserved by the balance of federalism
Rivlin 92 (Alice, Brookings Institution, “Reviving the American Dream: The Economy, The States, and the Federal Government)
The inexorably rising frequency and complexity of U.S. interaction with the rest of the world add to the stress on federal decisionmaking
If the United States is to be an
effective world leader, it cannot afford a cumbersome national government overlapping responsibilities between the federal
government and the states, and confusion over which level is in charge of specific domestic government functions.
processes and underline the need for making those processes simpler and more effective.
As the world shrinks, international concerns will continue threatening to crowd out domestic policy on the federal agenda. Paradoxically,
effective domestic policy is now more crucial than ever precisely because it is essential to U.S. leadership in
world affairs. Unless we have a strong productive economy, a healthy, well-educated population, and a responsive
democratic government, we will not be among the major shapers of the future of this interdependent world.
however,
If the American standard of living is falling behind that of other countries and its government structure is paralyzed, the United States will
find its credibility in world councils eroding. International considerations provide additional rationale, if more were needed, for the United
One answer to this paradox is to rediscover the strengths of our
federal system, the division of labor between the states and the national government. Washington not
States to have a strong effective domestic policy.
only has too much to do, it has taken on domestic responsibilities that would be handled better by the states. Revitalizing the economy
may depend on restoring a cleaner division of responsibility between the states and the national government.
Heg Good
Hegemony prevents all wars through cooperation and democracy
Brooks et al 13 STEPHEN G., is Associate Professor of Government at Dartmouth College. G. JOHN
Ikenberry, is Albert G. Milbank Professor of Politics and International Affairs at Princeton University and
Global Eminence Scholar at Kyung Hee University in Seoul. WILLIAM C. Wohlforth, is Daniel Webster
Professor of Government at Dartmouth College. This article is adapted from their essay "Don't Come
Home, America: The Case Against Retrenchment," International Security, Winter 2012-13. “Lead
Forward: In Defense of American Engagement” January/February 2013
http://www.foreignaffairs.com/articles/138468/stephen-g-brooks-g-john-ikenberry-and-william-cwohlforth/lean-forward?page=show. Web. 05 July 2014. CS
KEEPING THE PEACE of course, even if it is true that the costs of deep engagement fall far below what advocates of retrenchment claim, they
would not be worth bearing unless they yielded greater benefits. In fact, they do. The most obvious benefit of the current strategy is that it
reduces the risk of a dangerous conflict. The United States' security commitments deter states with aspirations to regional hegemony from
contemplating expansion and dissuade
U.S. partners from trying to solve security problems on their own in ways
that would end up threatening other states. Skeptics discount this benefit by arguing that U.S. +security
guarantees aren't necessary to prevent dangerous rivalries from erupting. They maintain that the high costs of
territorial conquest and the many tools countries can use to signal their benign intentions are enough to prevent conflict. In other words, major
powers could peacefully manage regional multipolarity without the American pacifier. But that outlook is too sanguine. If
Washington
got out of East Asia, Japan and South Korea would likely expand their military capabilities and go nuclear,
which could provoke a destabilizing reaction from China. It's worth noting that during the Cold War, both South Korea
and Taiwan tried to obtain nuclear weapons; the only thing that stopped them was the United States,
which used its security commitments to restrain their nuclear temptations. Similarly, were the United States to leave the
Middle East, the countries currently backed by Washington -- notably, Israel, Egypt, and Saudi Arabia -might act in ways that would intensify the region's security dilemmas. There would even be reason to
worry about Europe. Although it's hard to imagine the return of great-power military competition in a
post-American Europe, it's not difficult to foresee governments there refusing to pay the budgetary
costs of higher military outlays and the political costs of increasing EU defense cooperation. The result might be a
continent incapable of securing itself from threats on its periphery, unable to join foreign interventions on which U.S. leaders
might want European help, and vulnerable to the influence of outside rising powers. Given how easily a U.S. withdrawal from key
regions could lead to dangerous competition, advocates of retrenchment tend to put forth another argument: that such
rivalries wouldn't actually hurt the United States. To be sure, few doubt that the United States could survive the return of
conflict among powers in Asia or the Middle East -- but at what cost? Were states in one or both of these
regions to start competing against one another, they would likely boost their military budgets, arm client
states, and perhaps even start regional proxy wars, all of which should concern the United States, in part
because its lead in military capabilities would narrow. Greater regional insecurity could also produce
cascades of nuclear proliferation as powers such as Egypt, Saudi Arabia, Japan, South Korea, and Taiwan
built nuclear forces of their own. Those countries' regional competitors might then also seek nuclear
arsenals. Although nuclear deterrence can promote stability between two states with the kinds of nuclear forces that the Soviet Union and
the United States possessed, things get shakier when there are multiple nuclear rivals with less robust arsenals.
As the number of nuclear powers increases, the probability of illicit transfers, irrational decisions,
accidents, and unforeseen crises goes up
Answers To
Fed key to international relations
The federal government is no longer needed for effective international relations
Spiro 2001
(Peter J., Professor of Law, Hofstra University. This essay is based on a panel presentation delivered at
an American Enterprise Institute conference, "American Sovereignty: Issues for the New Administration
and the New Decade" (April 3-4, 2001)., “Contextual Determinism and Foreign Relations Federalism”,
Chicago Journal of International Law, 2 Chi. J. Int'l L. 363, Fall, 2001, Lexis Nexis)
Take the
late nineteenth century example of Louisiana's failure to afford adequate protection (as required by
international law) to Italian nationals from mob violence. n18 Even assuming that Italy understood American
federalism and the general autonomy afforded states in matters involving local law enforcement, it
would have been difficult for Italy to have sought a remedy directly from Louisiana, in the absence of established
communication channels and leverage points. Remedial entreaties, and the threat of retaliation, were more efficiently
directed against Washington, and that efficiency was reflected in international law doctrines under which Italy
could respond against the United States as a whole for the misdeeds of the component part. This context dictated the rule against
state-level interference with foreign relations; the externalities of state action were too great to tolerate in a fragile
international environment. But globalization shifts the balance. International actors, for the most part, do now
understand the internal workings of other nations. They have regular contact with subnational
authorities, and, perhaps most importantly, they have gained leverage over subnational entities. In the face of
globalization, international economic [*368] competitiveness is critical to local economic prosperity. The
threat of lost foreign investment or lost global sales offers the possibility of effective direct remedial action against subnational jurisdictions. If
these direct remedial channels become entrenched, national-level responsibility may become
redundant or obsolete. In that context, the subnational activity no longer poses a risk of interfering with
national policy, and there is no need to depart from the federalism construct that governs other areas of
regulation.
Aff Harmonizes Policy
Harmonization of federal and state law fails without a framework leads to vague laws
that courts have to interpret- doesn’t ensure an adequate balance of power
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
As the foregoing cases illustrate, physical
boundaries alone are not enough to prevent the extension of federal
management imperatives to state lands under the Property and Supremacy Clauses of the United States Constitution. As we
increase different uses of offshore areas, the potential for a similar set of conflicts grows. Furthermore,
conservation and restoration activities now play a greater role in the mix of ocean uses because of the
decline in commercial fisheries and other valuable marine resources (such as coral reefs and [*1410] kelp beds). n353
Thus, states will increasingly have to contend with the potential for federal prerogatives that cross the
three-mile border. And while humans do have the capacity to recognize and abide by borders, the ones we have constructed offshore
are merely a legal fiction: they are not consistent with ecosystem management, nor do they have any binding power over wildlife. n354
Secondly, as shown in Ventura County and Granite Rock, regulated industries frequently push for consolidated permitting. n355 Private
developers often balk at multiple layers of regulation due to added cost, delay and unpredictability. n356 Nonetheless, while
preemption
is always theoretically available, Congress may choose instead to encourage harmonization of federal
and state efforts. This requires a legal framework that clearly defines the relative roles and
responsibilities of each level of government. Such a framework, however, is frequently lacking. As the cases on
cooperation and coordination mandates illustrate, vague mandates often leave courts with little room to reinforce the
political compromise reached in legislation promoting "cooperative" approaches between the states and
the federal government. n357 These mandates may be politically difficult to achieve within legislation, as
with section 302(b) of the FLPMA. The more unified Congress can be in encouraging a cooperative approach and including express statements
thereof in statutory language, the more appropriate it will be to turn to the judicial branch for enforcement of these mandates.
AFF
Uniqueness
States don’t have control
Court Rulings
Supreme Court ruling on Arizona immigration law single biggest blow to American
federalism in history
Chicago Tribune, June 28 [2012, Federalism Destroyed; http://articles.chicagotribune.com/201206-28/news/chi-120628shinn_briefs_1_federalism-arizona-immigration-law-individual-mandate]
So the
Supreme Court has upheld the individual mandate after striking down most of the Arizona
immigration law. This has truly been an historical week. Never before has more power been taken from
the states and the people and transferred to Washington in a single week. On Monday the court said that
states cannot legislate in areas where the federal government legislates, and given how the federal
government legislates on just about every issue, this means the states can legislate in very few areas
indeed. On Thursday the court ruled that the federal government can compel individuals to engage in
commerce, whether they want to or not, and penalize them if they do not purchase whatever the
government says they must. In a single week, federalism, the 10th Amendment and any ability of an
individual to control his or her own money were destroyed. "Conservative" court? Ha!
Supreme court ruling on health care effectively destroyed federalism –
Turley, June 30 2012, Jonathan Turley, the Shapiro Professor of Public Interest Law at George
Washington University, is a member of USA TODAY's Board of Contributors.
http://www.guampdn.com/article/20120630/OPINION02/206300321/Federalism-biggest-loserdecision?odyssey=nav|head]
The Supreme
Court's blockbuster health care ruling caused a spasm of celebration and recrimination around the country
Thursday as the Affordable Care Act was upheld on a 5-4 vote. In reality, the case was never really about health care but
federalism -- the relative authority of the federal government vs. the state. I support national health care, but I oppose the individual mandate
as the wrong means to a worthy end. Indeed, for federalism advocates, the ruling reads like a scene out of Julius Caesar-- a principal killed by the
unseen hand of a long-trusted friend. Brutus, in this legal tragedy, was played by Chief Justice John Roberts. The opinion starts out well. Roberts
defends federalism by ruling that the administration exceeded its authority under the commerce clause. Just as many readers were exalting in the
affirmation of federalism, however, Roberts
struck a deadly blow by upholding the individual mandate
provision as an exercise of tax authority. Federalism rose and fell so fast it didn't have time to
utter, "Et tu, Roberts?" Roberts joined the four liberal justices in upholding the law. He clearly believed that the law was
constitutional, and he refused to yield to the overwhelming public pressure. Indeed, he must have known that people would view this as a betrayal
of states' rights, but he stuck with his honest view of the Constitution. None of that will diminish the sense of betrayal. After all, Brutus acted for
the best reasons, too. The
health care case was viewed as the final stand for federalism. If the top court
could make a federal issue out of a young person in Chicago not buying health insurance, it was
hard to imagine any act or omission that would not trigger federal authority. Roberts agreed that this was
beyond the pale of federalism: "Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring
countless decisions an individual could potentially make within the scope of federal regulation, and -- under the government's theory -- empower
Congress to make those decisions for him." But no
sooner had Roberts proclaimed his love for federalism than he
effectively killed it. Roberts held that the individual mandate still fell squarely within the taxing authority of Congress. If so, all those
"broccoli" questions asked by Roberts and other justices simply move over to the tax side. If Congress can "tax" people for not having health
insurance, how about taxes on people who don't have cellphones (as Roberts asked)? Just as there was no clear limiting principle in the commerce
clause debate, there is a lack of such a principle in the tax debate. Instead, Roberts simply says the individual mandate is supported by a
"functional approach" that has long allowed federal taxes to "seek to influence conduct" by citizens. Roberts did rule that states could not be
threatened with the loss of Medicaid funds if they didn't want to be part of the program. That was an unexpected protection for the states facing
threats from Congress. But this still leaves citizens of every state subject to the penalties of the federal government for failing to get insurance.
Moreover, in mandating the right to opt out, Roberts rewrote the law, precisely what most justices didn't want to do. Before the law was enacted,
Congress refused to add an opt-out provision. After the justices complained in oral arguments that they did not understand the massive law, this
judicial amendment could increase health care costs and undermine the uniform national character of the program. Given such problems,
President Obama might have been better off losing before the court than accepting this victory from the hands of Roberts. In the end, the court's
decision could be viewed as a success only to the extent that a crash landing is still considered a landing. It is hard to see who will be the ultimate
winner from this decision. But the
biggest loser is federalism. Roberts lifted it up only to make it an
exquisite corpse. In that sense, the decision reads like the funeral speech of another character in Julius Caesar. To paraphrase Mark
Anthony, Roberts came to bury federalism, not to praise it.
Federal Gov. Overrides states now
The federal government can override a state’s objection to ocean policy and require it
to be responsible for updates to the infrastructure.
Dhanju and Firestone 2009 (Amardeep and Jeremy, College of Marine and Earth Studies, Center for
Carbon-free Power Integration, University of Delaware, “Access System Framework for Regulating Offshore Wind
Power in State Waters”, Coastal Management. Sep2009, Vol. 37 Issue 5, p441-478. 38p., Business Source Premier,
Date Accessed: 11 July 2014)
Because the state resource agency will likely be the lead government agency and because USACE does not have expertise in resource
management, USACE may rely in large part on the MMS programmatic EIS for alternative energy projects in federal waters and any state
environmental evaluation of the offshore wind power proposal. A further complicating
issue would arise if a project
straddled state and federal waters. Given the close proximity of the state–federal boundary line to the
coast, such an eventuality is conceivable. In that case, the state would be the lead agency for the project
in state waters while MMS would be the lead agency in federal waters. Concerns of various federal agencies such as
the Federal Aviation Administration will also need to be addressed. For a full list of pertinent regulations, their jurisdiction, and potential
applicability refer Firestone et al. (2004). The federal Coastal Zone Management Act (CZMA) of 1972 adds another regulatory layer. It
encourages coastal
states to prepare and gain federal agency approval of state coastal zone management
plans. Most importantly for present purposes, it allows a coastal state with an approved coastal program plan to review for consistency with
that state’s coastal zone management plan, federal projects, and applications for federal permits and licenses that “affect any land or water use
or natural resource of the state coastal zone, regardless of location or activity”9 (NOAA, 2009, 21). The review under the provisions of federal
consistency is a comprehensive review of an activity’s effect on the coastal zone, including impacts to environmental quality, navigation, fish
Upon completion of the review, a coastal state can choose to concur, issue a
concurrence that places conditions on the license or permit should one be issued, or file an objection. If
a coastal state decides not to concur in the issuance of a federal permit or license, the permit or license
cannot be issued without a decision by the U.S. Secretary of Commerce to override the state position—a
and wildlife, commerce, and tourism.
decision that is rarely made and that in any event only can be made on very narrow grounds. The key here, however, is that the consistency
review can only be based on enforceable policies included in the state’s National Oceanic and Atmospheric Administration (NOAA)- approved
coastal zone management plan. These enforceable policies need to be based on existing state regulations and cannot go beyond (be stricter)
As federal consistency review limits a coastal state’s authority over a proposed project to
speak to the arguable effects of an activity, a state cannot categorically prohibit or allow a particular
use, such as offshore wind. As all enforceable policies are rooted in existing laws, the state coastal program is
responsible for including updates and additions to existing laws in relevant Routine Program Changes submitted to
than state law.
NOAA.
Oil and Natural Gas
States don’t have jurisdiction over the outer continental shelf
SUPREME COURT OF THE UNITED STATES decision on MARYLAND ET AL. v. LOUISIANA
in 1981
(451 U.S. 725; 101 S. Ct. 2114; 68 L. Ed. 2d 576; 1981 U.S. LEXIS 27; 49 U.S.L.W. 4562; 40 P.U.R.4th 1; 69
Oil & Gas Rep. 553, January 19, 1981, Argued, May 26, 1981, Decided
DECISION: Louisiana's
"first use" tax imposed on certain uses of natural gas brought into state, principally from outer
continental shelf, held violative of supremacy clause and commerce clause of United States Constitution.
SUMMARY: Eight states filed a motion for leave to file a complaint under the United States Supreme Court's original jurisdiction
pursuant to Article III, Section 2 of the United States Constitution, seeking a declaratory judgment that
Louisiana's "first use" tax imposed on certain uses of natural gas brought into the state, principally from the outer
continental shelf, was unconstitutional under, among other things, the United States Constitution's commerce
clause (Art I, 8, cl 3) and supremacy clause (Art VI, cl 2), and sought injunctive relief against Louisiana or its agents collecting the tax
with respect to any gas in interstate commerce as well as the refund of taxes already collected. The Supreme Court granted the motion for
leave to file (61 L Ed 2d 307), and subsequently appointed a Special Master to facilitate handling of the suit (63 L Ed 2d 597). The Special
Master issued two reports, the first report recommending that the Supreme Court approve the motions of New
Jersey, the United States, the Federal Energy Regulatory Commission, and several pipeline companies to intervene as plaintiffs, and the
second report recommending that (1) the Supreme Court deny Louisiana's motion to dismiss and reject the submissions that the plaintiff states
had no standing to bring the action and that the case was not an appropriate one for the exercise of the Supreme Court's original jurisdiction,
and (2) the plaintiff states' motion for judgment on the pleadings on the grounds that the tax was unconstitutional on its face be denied and
that further evidentiary hearings be conducted, even though the statute was constitutionally suspect in certain respects. On exceptions to the
reports of the Special Master, the United
States Supreme Court overruled exceptions and adopted the
recommendations contained in the first report, rejected exceptions to the second report's recommendation that the motion to
dismiss be denied, and sustained exceptions to the recommendation that judgment on the pleadings be denied pending further evidentiary
hearing. In an opinion by White, J., joined by Burger, Ch. J., and Brennan, Stewart, Marshall, Blackmun, and Stevens, JJ., it was held that (1) the
plaintiff states, as substantial consumers of natural gas, had standing to bring suit against Louisiana since
their gas costs had increased as a direct result of the imposition of the first use tax so that they were directly affected in a substantial and real
way so as to justify the exercise of the Supreme Court's original jurisdiction, and jurisdiction was supported by the states' interest as parens
patriae in protecting their citizens from substantial economic injury presented by imposition of the tax, since individual consumers could not be
expected to litigate the validity of the tax and were foreclosed from suing for a refund in the state's courts, (2) the action was an appropriate
case for the exercise of the Supreme Court's exclusive jurisdiction under 28 USCS 1251(a), even though there were
pending state court lawsuits raising the identical constitutional challenges to the validity of the tax, since neither the plaintiff states nor the
United States was a named party in any of the state actions nor had they sought leave to intervene and the tax implicated serious and
important concerns of federalism fully in accord with the purposes and reach of the Supreme Court's original jurisdiction and the tax
affected the United States' interest in the administration of the outer continental shelf thus making the case an
appropriate one for the exercise of the Supreme Court's original jurisdiction under 28 USCS 1251(b)(2) permitting suits by the United
States against a state, (3) a provision of Louisiana's tax declaring that the tax be deemed a cost associated with uses made by the owner
in preparation of marketing of the gas and prohibiting allocation of the costs to any party except the ultimate consumer violated the supremacy
clause by interfering with the authority of the Federal Energy Regulatory Commission, under the Natural Gas Act (15 USCS 717a et seq.), as
amended by the Gas Policy Act of 1978 (15 USCS 3301 et seq.), to regulate the determination of the proper allocation of costs associated with
the sale of natural gas to consumers, and (4) Louisiana's
first use tax violated the commerce clause by discriminating
against interstate commerce in favor of local interests as a necessary result of various tax credits and exclusions in the
statute and other state statutes, whereby state consumers of outer continental shelf gas were substantially protected against the impact of the
tax and had the benefit of untaxed outer continental shelf gas which could be cheaper than locally produced gas, while outer continental shelf
gas moving out of the state was burdened by the tax, the tax not being justified as a compensatory tax, compensating for the effect of the
state's severance tax on local production of natural gas, the
state having no sovereign interest in being compensated for the
severance of resources from federally-owned outer continental shelf land.
States Don’t Challeng Fed
States don’t use their power to veto federal ocean projects in the status quo
Russell 2004
(Robert H., J.D., Harvard Law School. Mr. Russell teaches environmental law in the graduate program at
Tufts University, and has taught energy regulation, environmental law and policy, and property law at
other universities and law schools in the Boston area. He also consults with nonprofit organizations and
government agencies on environmental matters., “COASTAL WIND ENERGY GENERATION: CONFLICT
AND CAPACITIE: SYMPOSIUM ARTICLE: Neither Out Far Nor in Deep: The Prospects for Utility-Scale Wind
Power in the Coastal Zone”, 2004 Boston College Law School, Boston College Environmental Affairs Law
Review, Lexis Nexis)
But even if most agree that the consistency doctrine is more than a hobgoblin, is it in fact a barrier to projects like an offshore wind farm?
No formal analysis has addressed this question. n147 Yet, the way in which the process plays out suggests that it might
not be a
substantial barrier. State consistency objections to federal license and permit applications are reviewed
by the Secretary of Commerce. n148 The Secretary may override an objection if the proposal is found to
be consistent with the objectives of the CZMA, or if it is otherwise essential to national security. n149 In the
first instance, the Secretary must base a consistency finding on each of three criteria, one of which also requires the presence of a strong
national interest. n150 As the discussion [*249] below suggests, if review by the Secretary has had any impact at all, it has helped to stimulate
oil and gas exploration on the Outer Continental Shelf. n151 Whether it also might be of assistance to offshore wind power projects is
questionable, given long-standing federal energy policy. Indeed, initial
data suggest that the consistency doctrine has had
minimal impact. The simple truth is that most states go along with most federal licensing decisions almost all of
the time. The federal Office of Ocean and Coastal Resource Management estimates that states have
consented to approximately ninety-five percent of all reviewable federal actions. n152 Nonetheless, of the forty
cases decided on petition to the Secretary of Commerce since the early 1980s, more than a third have involved energy exploration. n153 The
Secretary upheld the state's objection in half of them. n154 Although one cannot confidently declare this a trend, it underscores a tendency
that may be of importance to near-shore wind generation: states scrutinize big projects closely. n155 Even though such proposals have been
relatively infrequent, such consistently searching scrutiny, over time, may create a powerful preference for the status quo. n156
Policy is Inclusive
Federalism is no longer exclusion of the states, policies implemented now promote
inclusion of all levels
Hamilton ’03 (Lee, Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for
34 years, Why Federalism Works, the Center on Congress at Indiana University, http://congress.indiana.edu/why-federalism-works, accessed:
7/10/14 GA)
Early in my congressional career, I discovered a simple truth about our governmental system: it's confusing. Like most new members of
Congress, I'd taken office with visions of wrestling with the future of our Republic. So it came as a small shock to learn that much of what my
constituents wanted from me was help in navigating the federal, state and local bureaucracies. If you think back to your seventh-grade civics
class, you'll
remember learning about a system that resembles a layer cake, with local government at the
bottom, the states in the middle, and the federal government at the top, all clearly delineated. That's
still how most of us think of "federalism," or the division of responsibilities among different levels of government. But we're
hopelessly out of date. If anything, the American political system is like a marble cake, with a blend of elected
and appointed officials from all levels of government sharing policy and program duties. Think about
transportation, for instance. It's difficult enough to figure out which agency at which level of government maintains a particular stretch of
roadway. But it can be next to impossible to untangle how a given decision got made about, say, widening a road. The funding was provided by
Congress, as were certain guidelines on how the money could be spent, but the specifics were up to a welter of state, county and local elected
officials and highway engineers. You can find the same assortment of responsibilities in everything from the administration of welfare benefits
to law enforcement to cleaning up toxic waste. There's a reason for this. As with many of the questions we sort through as a nation, the basic
framework for dividing governmental responsibilities was set by the Constitution. Though
the Founders were quite specific on
some matters– states, for instance, don't have the power to declare war or coin money– they
deliberately left much room for flexibility. Just as they believed that dividing power among the various branches of the federal
government would make it more responsive, so would dividing power among the different levels. "[It]is not by the consolidation, or
concentration of powers, but by their distribution, that good government is effected," Thomas Jefferson wrote in his Autobiography. "Were not
this great country already divided into states, that division must be made, that each might do for itself what concerns itself directly, and what it
can so much better do than a distant authority... Were we directed from Washington when to sow, and when to reap, we should soon want
bread." And so, over the decades, each level of government has seen its share of responsibilities ebb and flow with the demands of the era. The
New Deal, for instance, brought new power to Washington, with its myriad of federal agencies helping American individuals and communities
cope with the aftermath of the Depression; so, too, did the civil rights movement, which relied on federal authority to bring about change in the
states. On the other hand, over the last two decades a mix of federal cutbacks, legislative changes, and Supreme Court decisions have returned
authority to the states and even local communities. In some cases, this has been driven by the belief that problems should be resolved closer to
where people actually live, rather than by federal power. In other cases, it has been driven by practicality, as new approaches to problems
bubble up from the states– as was the case with welfare reform. We live in an era that is more difficult to categorize. On the one hand, the
federal government is responding to the threat of terrorism by expanding and consolidating its power, especially for its various law
enforcement and national security agencies. At the same time, however, the attorneys general in the various states have responded to a
vacuum at the federal level by taking on responsibility for consumer enforcement in everything from policing Wall Street to tackling antitrust
cases, as when they sued drug makers for trying to block lower-cost generic competitors. The distribution of power is constantly shifting, and
sometimes, as at the moment, it moves in different directions simultaneously. For an ordinary citizen trying to get answers to a specific
problem, this can be confusing; it's why, when I was in Congress, my staff and I spent so much time directing constituents to the office and the
level of government that could best help them. It can also lead to conflict within the system, as when states sue a federal agency they believe
has failed to live up to its responsibilities. But in the end,
the flexibility created by our Constitution allows for a
pragmatic response to the evolving challenges we face as a nation. It creates the chance for policymakers to gauge whether problems are best confronted in town halls or state capitals or in Washington–
or in some combination of all of them– and then to work together to assign each level of government its appropriate role. That these roles
change over time is a sign not of weakness, but of the system's enduring strength.
Alt Causes
Economic Decline
Economic decline harms federalism
Tubbesing, 2k2 (Carl, NCSL's deputy executive director, State Legislatures, February 1,
lexis)
When the economy slows, he argues, the federal government has to step in to get it back on track. The
federal government has many tools to do this. It can lower interest rates; it can cut taxes; and it can spend
money. The states are more constrained in what they can do to help. In fact, the requirements that states have balanced
budgets often forces them into policy decisions that actually exacerbate the economic downturn. They may have to raise taxes when cutting
them could help the economy. They may have to cut funding just when more spending might create jobs and encourage economic activity.
Congressional and administration proposals to stimulate the economy surfaced immediately after the terrorist attacks. Debate, posturing and
negotiations over the proposals dragged well into December and eventually broke down. The conflict over economic stimulus revealed classic,
philosophical fissures between Republicans and Democrats. But the debate, less conspicuously perhaps, also demonstrated tensions in the
federal system. "State legislators understood that some of the recovery proposals were better for the states than others," notes Saland. "Some,
in fact, would actually be harmful. Good intentions at the national level do not necessarily translate into benefits for the states." One major
proposal that would have been included in a final package would have done considerable harm to the states. Negotiators rejected several
proposals that state officials had advanced. The economic stimulus proposal most damaging for states was an accelerated depreciation
schedule for business investments. Supported by both Republicans and Democrats in Congress and the administration, this proposal would
actually have caused revenue losses for state governments as high as $ 15 billion over the next three years-at a time when their budgets are
already reeling from the recession. The reason? Most states tie their business depreciation to the federal schedule. A change in the federal
structure means a change in state schedules. Most of the proposals that would have been sensitive to state concerns were not included in 11th
hour negotiations. State officials liked those that freed them of financial obligations, made tax changes without affecting states or sent new
federal money in their direction. NCSL, for example, supported a plan offered by New Mexico Senator Pete Domenici that would have created a
month-long federal payroll tax holiday. For a month, employees and employers would stop making their FICA (Social Security) contributions.
Employers-including state governments-would save money and employees would have bigger paychecks. Both outcomes would generate
economic activity. Negotiators flirted with the Domenici proposal, but eventually dropped it. The National Governors Association made changes
in Medicaid matching rates its biggest economic stimulus priority. The governors' organization likened reductions in state Medicaid spending to
revenue sharing. The Bush administration and congressional negotiators rejected this plan as cumbersome, expensive and politically unfeasible.
NCSL leaders argued for tax rebates for individuals instead of permanent changes to the income tax code. Negotiators, instead, opted for a
reduction in one of the middle income tax brackets-a change that would substantially reduce revenues in states that link their income tax
system to the federal one. Panelist No.2, our FDR look-alike, claims he has won the argument-that is that the
center of federalism
gravity moves toward the national government when the economy is weak. "What would the states have gotten
out of that stimulus package?" he wonders. "Not much. If anything, their budgets would have been in worse shape because of the changes in
the federal tax code." He's willing, though, to give Ben Franklin a chance.
No Link
Aquaculture
NOAA is best suited to oversee aquaculture—has greatest responsibility for
sustainable use
NOAA No Date (National Oceanic and Atmospheric Administration, “NOAA'S AQUACULTURE POLICY”,
http://www.nmfs.noaa.gov/sfa/sfweb/aqua_policy.htm”
Worldwide fisheries production will be inadequate to meet the needs of the world's population, without supplementation through
aquaculture.
Constituent and Congressional support for aquaculture dictates that the National Oceanic and
Atmospheric Administration (NOAA) bring together its diverse programs to develop a comprehensive
aquaculture policy and strategy to provide a context for agency activities for the next ten to twenty years. The
impetus for the development of aquaculture extends beyond food production. NOAA involvement in aquaculture can help to
foster sustainable economic development and environmentally friendly technologies, create new
employment opportunities, reduce the trade deficit in fish products, reduce fishing pressure on living
marine resources, and rebuild depleted stocks. The 1980 Memorandum of Understanding (MOU) between the Departments of
Agriculture (USDA), Commerce (DOC) and Interior (DOI), defined aquaculture as "the propagation and rearing of aquatic species in controlled or
selected environments." Pursuant to this MOU, DOC, through NOAA's National Marine Fisheries Service (NMFS), and the National Sea Grant
College Program, carried out aquaculture research and development on marine, estuarine, and anadromous species. Work on anadromous
species has been coordinated with DOI and USDA (Forest Service). The National Sea Grant College Program has conducted research, education,
training and advisory services in aquaculture; its advisory services programs have been carried out in collaboration with USDA's Extension
Service. Subsequent to the establishment of this MOU, the Fisheries Finance Program, administered by NMFS, and the
Coastal Zone
Management Act (CZMA), administered by NOAA's National Ocean Service (NOS), were amended to
include comprehensive planning, conservation and management of aquaculture facilities within the
coastal zone. Furthermore, the National Aquaculture Development Act of 1980, amended in 1985, established a coordinating group, the
Joint Subcommittee on Aquaculture (JSA), chaired by USDA. The JSA has been responsible for developing the National Aquaculture
Development Plan, which identifies the relative roles of USDA, DOI and DOC, and establishes a strategy for the development of an aquaculture
industry in the United States. NOAA, the Federal Oceans agency, has a strong statutory basis for the promotion and regulation of marine
aquaculture. A listing of the legislative authorities is attached (Attachment 1). NOAA,
having the greatest responsibility for
the sustainable use and conservation of marine resources and the environment, is best suited to
oversee aquaculture activities that affect marine ecosystems and occur in public waters. NOAA has a variety of
established responsibilities for marine, estuarine, and anadromous species aquaculture; including research,
development, and outreach, for stock enhancement and private sector development, as well as the
adoption of appropriate environmental safeguards and technology.
NOAA has jurisdiction over aquaculture except when limited by written agreement
with the state
NOAA 11 ((National Oceanic and Atmospheric Administration, “MARINE AQUACULTURE POLICY”,
http://www.nmfs.noaa.gov/aquaculture/docs/policy/noaa_aquaculture_policy_2011.pdf)
NOAA may engage in regulatory actions in the Exclusive Economic Zone under the authority of the MagnusonStevens Fishery Conservation and Management Act (Magnuson-Stevens Act) through Fishery Management Plans for species in need of
conservation and management. NOAA
may also engage in regulatory action under National Marine Sanctuaries
Act (NMSA) authority with respect to aquaculture activities within or potentially affecting Sanctuaries. NOAA has
a direct regulatory role for aquaculture within the sanctuaries, in both state and federal waters, except
in state waters when limited by formal written agreement with the Governor of that state. NOAA also engages
in consultations with other federal permitting agencies under the authority of the Endangered Species Act, Marine Mammal Protection Act, the
Essential Fish Habitat provisions of the Magnuson-Stevens Fishery Conservation and Management Act, the National Environmental Policy Act,
and other statutes. Through the Coastal Zone Management Act, NOAA also reviews and approves state coastal management programs, which
identify permissible uses in the coastal zone, and oversees federal consistency with these programs.5
Energy Generic
State ocean energy projects currently require federal approval
Vartabedian 2014
(Ralph, National correspondent for the latimes covering energy, space, bullet trains and auto safety
issues, “Offshore wind farm is planned; Five huge turbines off Oregon's coast get the initial OK to test
the emerging technology.”, Los Angeles Times, February 6, 2014 Thursday, Lexis Nexis)
A Seattle energy company received initial regulatory approval Wednesday to build five massive wind turbines
floating 16 miles off the Oregon coast. The pilot project off Coos Bay would be the first offshore wind facility on the West Coast. It also
would be the biggest demonstration of technology that places floating turbines on platforms in deep water, according to federal officials and
executives at Principle Power, the developer. The turbines would be as tall as a 60-story building, vastly larger than typical turbines on landbased wind farms, and able to tap strong winds that blow consistently off southern Oregon, said Kevin Banister, Principle's vice president for
business and government affairs. Each turbine, generating 6,000 kilowatts of power, would be supported on three floating platforms moored
by cables anchored to the sea floor, about 1,400 feet below the surface. The electricity would be transmitted to shore via underwater cable.
The Interior Department's Bureau of Ocean Energy Management, Regulation and Enforcement gave
approval for the company to submit a formal plan for the 30-megawatt project. Principle Power would lease 15 square
miles of ocean away from shipping lanes and barely visible from the coast. Interior Secretary Sally Jewell and Democratic
Gov. John Kitzhaber announced the project Wednesday in Oregon, invoking the Obama administration's vision
for clean energy and reducing carbon pollution. Banister said the venture would cost about $200 million and was expected to be
operational by 2017. It has received $4 million in Energy Department funding as an advanced demonstration project. Principle hopes for a
power purchase agreement with Oregon utilities. Approval
for the lease followed a process to ensure that other
parties had no competitive interest in the part of the ocean that Principle would use. The company still must go
through the federal regulatory approval process under the National Environmental Protection Act, said
Doug Boren, the bureau's West Coast renewable energy manager.
Ocean Management/Monitoring
NOAA, which is part of the United States Department of Commerce, has full
jurisdiction over ocean monitoring
NOAA No Date (National Oceanic and Atmospheric Administration, “Monitoring Oceans and Coasts”,
http://oceanservice.noaa.gov/observations/monitoring/)
Our planet is constantly changing in ways that impact every facet of our society. To keep coastal
communities, economies, and ecosystems healthy requires keeping track of ocean and coastal areas—monitoring
and assessing how these areas are changing. From tracking contaminants in the water, assessing environmental change, monitoring
sea-level rise, or surveying the coastline and coastal sea floor, NOS physical, chemical, and biological observations help coastal communities
make the best decisions for them and for the environment. Scientists all over the globe are monitoring how our planet is changing. They
use tools, such as satellites, thermometers, and tide gauges, to collect observations. However, not all collected
observations are in the same format, meaning they cannot be easily used together. Also, there are gaps in the information that is collected.
Enter the
Integrated Ocean Observing System, or IOOS®. Led by NOAA, IOOS brings together federal and non-federal
people and technology, building a network to fill observing gaps. IOOS is also establishing standards for data collection,
so that data can be used together and be more accessible to users. All of this means more information, which means a more comprehensive
understanding of our planet
OTEC
OTEC projects fall under NOAA or Department of Energy jurisdiction
NOAA 2011
(National Oceanic and Atmospheric Association, http://coastalmanagement.noaa.gov/otec/oteca.html,
accessed 7/11/14)
Ocean Thermal Energy Act of 1980 In
1980, the Ocean Thermal Energy Conversion Act (OTECA) granted the authority
for licensing OTEC facilities located within the territorial sea of the United States to the Administrator of
the National Oceanic and Atmospheric Administration (NOAA). Under the Ocean Thermal Energy Conversion Research,
Development, and Demonstration Act the U.S. Department of Energy may authorize demonstration
projects which are exempt from the NOAA licensing requirements after consulting with NOAA.
Internal Link
Federalism Flexible
American Federalism is flexible—it is no longer a constitutional doctrine
Morgan 6(Denise C., Professor at New York Law School , New York Law School Law Review, "A Tale of
(At Least) Two Federalisms,")
The first four pieces in this volume, which were presented at the Federal Courts section panel at the 2005 AALS convention, ask some version of
the Federal Courts scholar's distressed query. My colleague, Professor Edward A. Purcell, Jr., opens the volume by putting that question into a
broader historical and theoretical context. His articleasks: Whether, and to what extent, it is
possible for "federalism" to serve as
a meaningful and independent norm in the nation's constitutional enterprise. In other words, are the
provisions of the Constitution that establish the federal structure, sufficiently clear, specific, and complete to
direct those who construe them to "correct" decisions or, at least, to eliminate wide ranges of discretion in such decision making?n29 Can an
examination of history set us on the proper path prescribed by the Constitution, or, when it comes to American federalism, are we condemned
to muddle through, always wondering, "What on earth is going on?"Professor Purcell's
interrogation provides some lessons
and yields some insights into the "true" nature of American federalism, but more fundamentally, it "reveals
disagreement, uncertainty, conflict, and change."n30 Indeed, he contends that federalism has been,
remains, and always will be a contested issue, in part because "some of our most basic conceptions and
assumptions about the federal system have changed substantially over the years."n31 In sharp contrast to the
work of Federal Courts scholars who propound[*624]clear cut prescriptive theories of federalism,n32 Professor Purcell concludes that "the
idea of 'constitutional federalism' - that is, federalism as a directive constitutional norm - [is] deeply
problematic."n33 Each of the sections of Professor Purcell's article examines one of the moving parts of
American federalism: our ideas about the proper role of the Supreme Court in the federal system; our
ideas about the values of federalism; our understanding of the nature of federalism as a structure of
government; and our ideas about the nature and meaning of the Constitution itself. He finds that even
the founding generations had at least five conflicting ideas about the appropriate role of the Supreme
Court and judicial review. Moreover, "although the five views were distinct, they were also frequently intermixed in the minds of the
founders."n34 Professor Purcell traces those different understandings of the Court's proper function from the ante-bellum period to the
modern era and attributes our failure to settle on one dominant conception to the fact that "neither the Constitution nor any other
authoritative source unequivocally defined such a system or such a role."n35 Professor Purcell
contends that discussions of the
values of federalism - "usually described as including protecting liberty, encouraging diversity and innovation, ensuring political
accountability, promoting democratic participation, and protecting local values and interests" - are similarly unhelpful in
identifying clear lines between state and federal authority.n36 Indeed, he asserts [*625] that those conversations, which
began to proliferate in the late twentieth century, were driven by an anxious sense that many"traditional" lines ostensibly separating national
and state power were no longer sound, easily detectable, or even operationally plausible. Some
kind of functional analysis
seemed necessary to justify the existence of the states as independent governing units, to assure
Americans that those state governments actually produced public benefits, and to identify useful and
intelligible lines that could be drawn between federal and state authority.
Federalism is resilient and flexible
Greston 7 (Larry, San Jose St-Politics, American Federalism: A concise introduction, p. 13-4)
To be sure, over the past
two hundred twenty years, the powers of some institutions have been clarified,
while the resources of others have evolved considerably. Even more remarkable, some power relationships
have shifted over time, revealing a profound flexibility within the American government framework. More
times than not, such shifts in power have not occurred with unanimity. In fact, great debates over the appropriate
assignments of government functions continue to this day. Nevertheless, the basic elements of American federalism remain
in place, even if the applications are different. And other than the Civil War nearly one hundred and fifty years ago, the
political “operating system” of the nation has functioned without serious bloodshed. Along
federalism has demonstrated a great sense of continuity.
with resilient adaptability, American
Not Zero Sum
Federalism is not zero-sum
Kasprzyk 10 (Karissa, Sr. Thesis-Stetson U., http://www2.stetson.edu/library/seniorprojects_2010004.pdf)
Since 1965, the U.S. Congress has taken a more active role in using the “elastic clause” to legislate in areas traditionally regulated by the states
(Zimmerman 1992). This
Congressional preemption of state power has expanded the role of the national
government in many policy areas and resulted in the expectation that Congress will legislate in any areas
of national significance with at least minimum standards and rules. This trend would seemingly take away many of the powers given to
the states as they defer to national rules, but scholars have noted that, due to the cooperative nature of U.S. federalism,
the power relations are not “zero-sum” (Zimmerman 2005). Most Congressional preemption of power occurs
when rules and regulations are established for the states to carry out in their own manner, because excessive
command and control to establish uniform state actions has historically been ineffective. This cooperative federalism creates
overlapping structures and regulations that may seem inefficient, but actually ensure that there are no
policy gaps (Buzbee 2006). Therefore, in the past few decades, states have taken a larger role in many of these
policy areas, such as environmental or banking regulations, which has resulted in more capable and
active state governments even while acting.
Impact
Ocean
Federalist division of power over the oceans creates conflict between the states and
federal government that prevents effective management of ocean resources
Rachael E. Salcido in 2008 Associate Professor of Law, University of the Pacific, McGeorge School of
Law, Offshore Federalism and Ocean Industrialization, Tulane Law Review 82 Tul. L. Rev. 1355
Ocean and coastal resources of the United States are managed through a proliferation of laws for living and
nonliving resources. n69 [*1369] The first generation of environmental laws was designed to address one issue at a time, such as water quality,
air quality, or wildlife preservation. n70 Therefore, among the laws governing ocean and coastal resources, different provisions address water
pollution, n71 construction of fixed objects, n72 extraction of minerals, n73 fisheries management, n74 marine mammal protection, n75 and so
forth. Different agencies have responsibilities for implementing these laws, and the lead regulatory responsibilities may be vested at the
federal, state, or local government level, or some combination thereof. n76 This
fragmentation of laws has been blamed for
the "regulatory failure" that is being addressed by experimenting with laws that integrate decision
making over a variety of human actions that impact the environment. n77 Professor Bradley C. Karkkainen has
explained this as a shift from "rules-to-governance." n78 [*1370] One of the most significant challenges in making the shift from
rules-to-governance effective to overcome past regulatory failures is synchronizing regulatory efforts across political
borders. n79 As further explained earlier in Part II, the dividing line between state and federal jurisdiction of the
oceans exists three miles from shore. n80 Resource management across this three-mile state-federal
border is the root of significant tension between coastal states and the federal government. n81 The
resulting conflict presents two challenges: first, it impedes the efficient review of specific development proposals,
and second, it frustrates efforts to enhance the overall quality and effectiveness of ocean management. And beyond
specific project or resource conflicts, the three-mile border presents an additional challenge to transitioning to
much-needed comprehensive marine ecosystem management, where all parts of the environment are considered
synergistically in management decisions. n82
Econ
A strong federal government works better for the economy- Canada proves
COYNE 2013
(ANDREW, “An integrated national economy calls for national oversight”, The Gazette (Montreal), The
Gazette, SECTION: EDITORIAL / OP-ED; Andrew Coyne; Pg. A21, March 7, 2013 Thursday, Lexis Nexis)
My colleague John Ivison of the National Post had something of a scoop this week. The coming federal budget, it appears, will see Ottawa
reclaim the $2.5 billion it now gives the provinces for job training, and deliver the program itself. This is the same money the Harper
government had earlier made a great show of handing over to the provinces, though the bulk of it comes out of the federal employment
insurance envelope, on the ground that provincial job trainers were innately superior to federal job trainers, what with being "closer to the
people" and all. It's
never been clear to me just how a provincial bureaucrat in Halifax is in any meaningful sense
closer to an unemployed worker than a federal bureaucrat living and working in the same city. Perhaps they
stand a little nearer? But never mind. It seems the provinces weren't in fact doing a very good job of it, after all: skills shortages
have persisted, particularly in the resource sectors, even as workers in other parts of the country waste away on the dole. A national
approach, in a national economy, makes a certain sense. Now, it's perfectly possible the feds will make an even bigger mess
of it, to the point that some future government will see fit to send the money back to the provinces again (lather, rinse, repeat). What's
interesting to me is less the substance of the issue than what it tells us about the Harper government's thinking. Which, as shorthand, has the
disadvantage of being several syllables longer than Harper's thinking, which is all that matters. Every so often, one or another of my fellow
hacks will deliver themselves of a Grand Unified Theory of Harper as a fervent decentralist, driven by nothing so much as a desire to redesign
the federation in the shape of a doughnut, with a great hole where Ottawa used to be. This postulate has had to be flown in to take the place of
Harper the principled free marketer, previously the most popular theoretical Harper, who you'll remember collapsed, in a horrifying conjectural
mishap, with the whole country watching. But as long as we're in the mood for evidence-based punditry, perhaps it's time this chimera were
laid to rest as well. I don't doubt that one of Harper's knees jerks in that direction from time to time. But the other is as likely to jerk in the
opposite way. It is true, for example, that Finance Minister Jim Flaherty's brusque, "take it or take it" promise to the provinces that federal
transfers would go on rising in line with the economy, if not at the six per cent annual rate they had previously, was conceded without the
expected haggling over conditions. But that came only after the failure of a previous effort at conditionality, the Conservatives' promised "waittimes guarantee." And it reflects a bipartisan reality - no party is going to enforce the Canada Health Act. In any case, how is it decentralizing for
Ottawa to keep paying the provinces' rent, in perpetuity? You'd expect a genuinely decentralizing government to cut them off at some point, or
at least convert the transfers to tax points. Maybe the game is to ship the money off to the provinces so Ottawa can't spend it? Except that
direct federal spending, as a share of the total, has been consistently higher under the Harper government than it was under its "centralizing"
predecessors (although it is scheduled to fall back to pre-Harper levels in the next few years). The "decentralist" Harper government is also the
government that has poked, prodded and flat-out bribed the provinces into harmonizing their provincial sales taxes with the federal GST. It has
pushed hard for a national securities regulator, to replace the 13 separate provincial and territorial regulatory regimes, and has even muttered
under its breath - a throne speech here, an election platform there - about hauling out the federal trade and commerce power if the provinces
do not get serious about dismantling their trade barriers. That the results have been, charitably speaking, mixed does not invalidate the point.
And we're not done yet.
It would be hard to overlook the federal-provincial implications, in matters from procurement
to agriculture, of the Harper government's ambitious international trade agenda: other national governments may succeed in
bringing the provinces to heel, where it has not. Even Senate reform is implicitly federalizing, though again,
progress is scant. I don't mean any of this as criticism. This increasingly ungovernable country, whose provinces have lately grown
bold enough to demand payment of ransom before they will allow each other's exports to pass, could use
the firm smack of federal authority. But it does rather call into question the simple decentralist model of Harperian
federalism. His views have changed on a lot of things, and on a lot of others, he's merely been inconsistent. But in this case, I think you can
see a pattern. Neither "domineering federalism" nor "open federalism," it might best be called "logical federalism." Both the constitution and
common sense would assign health care, for example (among other of what the BNA Act called "merely local" matters), to the provinces. But
an integrated national economy demands national oversight. For the federal government to shirk its
responsibility in this regard is not consistency, but dereliction. Indeed, a federal government that was more respectful of
provincial prerogatives in the first instance might find it had more latitude to proceed on the second.
Federalism hurts economic stability.
Sudarshan Gooptu, Economist with the Debt and International Finance Division in the International
Economics Department of the World Bank. 2005. The World Bank Report: East Asia Decentralizes.
“Making Local Government Work.” http://siteresources.worldbank.org/INTEAPDECEN/Resources/dcfull-report.pdf , gooptu is Sector Manager, Economic Policy & Debt at The World Bank.
International experience since the early 1980s, especially in Latin America, suggests that without appropriate
accountability and transparency mechanisms, decentralization can encourage
dangerous opportunistic behavior by state and local authorities. If left unchecked,
such opportunism could undermine macroeconomic stability. The most vivid manifestation of this
phenomenon is the softening of subnational budget constraints (Rodden 2000a; World Bank 2002). Avoiding
this risk
depends on the ability of the central government to prevent subnational authorities from
passing their liabilities to higher-level governments.12 This, in turn, requires institutional
mechanisms to discipline borrowing by state and local governments.
Environment
State competition results in bad environmental policies
Oates 01< Wallace E. Oates, Professor of Economics, University of Maryland, College Park, MD, and
University Fellow, Resources for the Future, Washington, DC, A Reconsideration of Environmental
Federalism, http://www.rff.org/Documents/RFF-DP-01-54.pdf>
The basic contention in this literature is that in
a setting of interjurisdictional economic competition, local officials, in
their eagerness to attract new business investment and create new jobs, will introduce measures to
reduce costs to local business in the form of low taxes and excessively lax environmental standards, which
will result in suboptimal outputs of local public goods (including environmental quality). In one sense, the argument is
puzzling. If local governments seek to promote the well-being of their residents, then they should care about local environmental quality. If the
benefits from a marginal improvement in the local environment exceed the costs, we should expect the improvement to receive support and
be carried out. What is going on here? There is now a large—in fact an enormous—theoretical literature on all this.4 Let me first point out that
it is straightforward to construct a standard kind of model of local public decisionmaking in which
competition among governments induces efficient local choices (e.g., Oates and Schwab 1988; Wellisch 2000). In these
models, jurisdictions compete for mobile firms to increase local wage income and expand the local tax
base. The models generate what are effectively analogues to the purely competitive model for the private sector; they provide invisible-hand
theorems in which interjurisdictional competition guides local public choice into Pareto-efficient outcomes.
Modeling
Generic
New states don’t model US federalism
Moravcsik 05, Moravcsik, Andrew, Professor of Politics and director of the European Union Program
at Princeton University.. "Dream On America: World Rejects the US Model."Common Dreams.
Newsweek International, 31 Jan. 2005. Web. 14 July 2014. CS
Once upon a time, the U.S. Constitution was a revolutionary document, full of epochal innovations--free elections, judicial review, checks and
balances, federalism and, perhaps most important, a Bill of Rights. In the 19th and 20th centuries, countries around the world copied the
document, not least in Latin America. So did Germany and Japan after World War II. Today? When nations write
a new
constitution, as dozens have in the past two decades, they seldom look to the American model. When
the soviets withdrew from Central Europe, U.S. constitutional experts rushed in. They got a polite
hearing, and were sent home. Jiri Pehe, adviser to former president Vaclav Havel, recalls the Czechs' firm decision to adopt a
European-style parliamentary system with strict limits on campaigning. "For Europeans, money talks too much in American
democracy. It's very prone to certain kinds of corruption, or at least influence from powerful lobbies," he
says. "Europeans would not want to follow that route." They also sought to limit the dominance of
television, unlike in American campaigns where, Pehe says, "TV debates and photogenic looks govern
election victories." So it is elsewhere. After American planes and bombs freed the country, Kosovo opted for a European
constitution. Drafting a post-apartheid constitution, South Africa rejected American-style federalism in favor of a
German model, which leaders deemed appropriate for the social-welfare state they hoped to construct. Now fledgling African
democracies look to South Africa as their inspiration, says John Stremlau, a former U.S. State Department official who
currently heads the international relations department at the University of Witwatersrand in Johannesburg: "We can't rely on the
Americans." The new democracies are looking for a constitution written in modern times and reflecting
their progressive concerns about racial and social equality, he explains. "To borrow Lincoln's phrase, South Africa is now
Africa's 'last great hope'." Much in American law and society troubles the world these days. Nearly all countries
reject the United States' right to bear arms as a quirky and dangerous anachronism. They abhor the death
penalty and demand broader privacy protections. Above all, once most foreign systems reach a reasonable level of
affluence, they follow the Europeans in treating the provision of adequate social welfare is a basic right.
All this, says Bruce Ackerman at Yale University Law School, contributes to the growing sense that American law, once the world standard, has
become "provincial." The
United States' refusal to apply the Geneva Conventions to certain terrorist suspects,
to ratify global human-rights treaties such as the innocuous Convention on the Rights of the Child or to
endorse the International Criminal Court (coupled with the abuses at Abu Ghraib and Guantanamo) only reinforces the
conviction that America's Constitution and legal system are out of step with the rest of the world.
U.S. federalism isn’t modeled
Kymlicka, 2k (Will, Professor of Philosophy at University of Toronto, July, Canadian Journal of Law and
Jurisprudence)
Can the Model be Exported? Given this success in the West, one might expect that there would be great
interest in multination federalism in other countries around the world, from Eastern Europe to Asia andAfrica, most
of which contain territorially-concentrated national minorities. The phenomenon of minority nationalism, including the demand for [*217]
territorial autonomy, is a truly universal one. The countries affected by it are to be found in Africa (for example, Ethiopia), Asia (Sri Lanka),
Eastern Europe (Romania), Western Europe (France), North America (Guatemala), South America (Guyana), and Oceania (New Zealand). The
list includes countries that are old (United Kingdom) as well as new (Bangladesh), large (Indonesia) as well as small (Fiji), rich (Canada) as well
as poor (Pakistan), authoritarian (Sudan) as well as democratic (Belgium), Marxist-Leninist (China) as well as militantly anti-Marxist (Turkey).
The list also includes countries which are Buddhist (Burma), Christian (Spain), Moslem (Iran), Hindu (India), and Judaic (Israel)." n12 Indeed,
some commentators describe the conflict between states and national minorities as an ever-growing "third world war", encompassing an everincreasing number ofgroups and states. n13. We need to think creatively about how to respond to these conflicts, which will continue to plague
efforts at democratization, and to cause violence, around the world. I believe that federal or quasi-federal forms of territorial autonomy
(hereafter TA) are often the only or best solution to these conflicts. To be sure, TA is not a universal formula for managing ethnic conflict. For
one thing, TA is neither feasible nor desirable for many smaller and more dispersed national minorities. For such groups, more creative
alternatives are needed. So it would be a mistake to suppose that TA can work for all national minorities, no matter how small or dispersed. But
I believe it would equally be a mistake to suppose that non-territorial forms of cultural autonomy can work for all national minorities, no
matter how large or territorially concentrated. What works best for small and dispersed minorities does not work best for large, concentrated
minorities, and vice versa. n14 Where national minorities form clear majorities in their historic homeland, and particularly where they have
some prior history of self-government, it is not clear that there is any realistic alternative to TA or multination federalism. Yet
TA is
strongly resisted in most of Eastern Europe, Africa and Asia. And it is resisted for the same reasons it was
resisted historically in the West: fears about disloyalty, secession and state security. n15 In many countries,
majority- minority [*218] relations are "securitized"--e.g., viewed as existential threats to the very existence of the state, which therefore
require and justify repressive measures. n16 Where ethnic relations become securitized in this way, states are guided by a series ofinter-related
assumptions: (a) that minorities are disloyal, not just in the sense that they lack loyalty to the state, but also in the sense that they are likely to
collaborate with current or potential enemies; (b) that minorities are likely to use whatever power they are accorded to exit or undermine the
state; (c) that a strong and stable state requires weak and disempowered minorities. Put another way, ethnic relations are seen as a zero-sum
game: anything that benefits the minority is seen as a threat to the majority; and (d) that the treatment of minorities is above all a question of
national security. Where
one or more of these premises is accepted, there is virtually no room for an open
debate about the merits of federalism. The perceived connection between federalism and destabilizing
the state is too powerful to allow such a debate. Indeed, in many countries, for a minority to demand federalism is itself
taken as proof of its disloyalty. It is not only advocates of secession who are put under police surveillance: anyone who advocates
federalism is also seen as subversive, since it is assumed that this is just a covert first step to secession. Under these
conditions, the whole question of what justice requires between majority and minority is submerged,
since national security takes precedence over justice, and since disloyal minorities have no legitimate claims anyway. This resistance is so
strong that TA is typically only granted as a last-ditch effort to avoid civil war, or indeed as the outcome of civil war. n17 On this issue,
therefore, there is
a wide and perhaps growing gulf between most Western countries and most countries in
the rest of the world. In the West, it is considered legitimate that national minorities demand TA, and indeed these demands are
increasingly accepted. Most national minorities in the West have greater autonomy than before, and none have been stripped oftheir autonomy.
The idea ofTA is accepted in principle, and adopted in practice. The old self-image ofstates as unified nation-states is being replaced with the
new self-image of states as multination federations and/or as partnerships between two or more peoples. By contrast, in many countries in
Eastern Europe or the Third World, many national minorities have less autonomy than they had 30 or 50 years ago, and it is considered
illegitimate for minorities to even mention autonomy, or to make any other proposal which would involve redefining the state as a multination
state. These countries [*219] cling to the old model ofunitary nation-states, in which minorities ideally are politically weak, deprived of
intellectual leadership, and subject to long-term assimilation.
Nations do no model US federalism – no state has done so since the French revolution
Stepan 99, Stepan, Alfred C, rofessor of Government at Oxford University in 1996-99, is now Wallace
Sayre Professor of Government at Columbia University.. "Federalism and Democracy: Beyond the U.S.
Model." Journal of Democracy 10.4 (1999): 19-34. Project MUSE. Web. 14 July 2014. CS
The U.S. model of federalism, in terms of the analytical categories developed in this article, is "coming-together" in its origin, "constitutionally
symmetrical" in its structure, and "demos-constraining" in its political consequences. Despite
the prestige of this U.S. model of
federalism, it would seem to hold greater historical interest than contemporary attraction for other
democracies. Since the emergence of nation-states on the world stage in the after-math of the French
Revolution, no sovereign democratic nation-states have ever "come together" in an enduring
federation. Three largely unitary states, however (Belgium, Spain, and India) have constructed "holding-together" federations. In contrast
to the United States, these federations are constitutionally asymmetrical and more "demos-enabling" than [End Page 32] "demos-constraining."
Should the United Kingdom ever become a federation, it would also be "holding-together" in origin. Since it is
extremely unlikely that
Wales, Scotland, or Northern Ireland would have the same number of seats as England in the upper
chamber of the new federation, or that the new upper chamber of the federation would be nearly equal
in power to the lower chamber, the new federation would not be "demos-constraining" as I have defined that
term. Finally, it would obviously defeat the purpose of such a new federation if it were constitutionally
symmetrical. A U.K. federation, then, would not follow the U.S. model. The fact that since the French
Revolution no fully independent nation-states have come together to pool their sovereignty in a new
and more powerful polity constructed in the form of a federation would seem to have implications for
the future evolution of the European Union. The European Union is composed of independent states, most of which are nationstates. These states are indeed increasingly becoming "functionally federal." Were there to be a prolonged recession (or a depression),
however, and were some EU member states to experience very high unemployment rates in comparison to others, member states could vote
to dismantle some of the economic federal structures of the federation that were perceived as being "politically dysfunctional." Unlike
most classic federations, such as the United States, the European Union will most likely continue to be
marked by the presumption of freedom of exit. Finally, many of the new federations that could emerge
from the currently nondemocratic parts of the world would probably be territorially based, multilingual,
and multinational. For the reasons spelled out in this article, very few, if any, such polities would attempt to
consolidate democracy using the U.S. model of "coming-together," "demos-constraining," symmetrical
federalism. 7
Violence/Conflicts
Federalism does not work to solve conflicts
McGarry and O’Leary, 94 (John Warren and O'Leary. The political regulation of national and ethnic
conflict. Parliamentary Affairs v47.n1 (Jan 1994): pp94(22).)
Unfortunately, federalism
has a poor track record as a conflict-regulating device in multi-national and
polyethnic states, even where it allows a degree of minority self-government. Democratic federations
have broken…Federal failures have occurred because minorities continue to be outnumbered at the
federal level of government. The resulting frustrations, combined with an already defined boundary and
the significant institutional resources flowing from control of their own province or state, provide
considerable incentives to attempt secession, which in turn can invite harsh responses from the rest of
the federation…genuine democratic federalism is clearly an attractive way to regulate national conflict, with obvious moral advantages
over pure control. The argument that it should be condemned because it leads to secession and civil war can be sustained only in three
circumstances: first, if without federalism there would be no secessionist bid and, second, if it can be shown that national or ethnic conflict can
be justly and consensually managed by alternative democratic means; and third, if the secessionist unit is likely to exercise hegemonic control
(or worse) of its indigenous minorities.
Federalism sparks ethnic conflict
Mutunga 1 (Willy, Executive Director of the Kenya Human Rights Commission, The Nation)
Federalism promotes localism, ethnic and racial xenophobia and undermines the sense of nationhood.
Unsurprising the United States and Nigeria are living survivors of debilitating separatist wars between
their regions; India, despite its federal miracle still bleeds from secessionist movements. The
introduction of ethnic-based 'quasi-regionalism' in post-Mengistu Ethiopia has fuelled the conflict over
the proposed Oromia state by members of the Oromo ethnic population. Majimboism in the early 1960s
had let off the lid of secessionist movements, particularly by Kenyan Somalis in North Eastern Province
and the clamour for an autonomous "Mwambao" on the Coast. There is no guarantee that this time
around, majimboism will not trigger ethnic recidivism and separatist movements, especially in North
Eastern, Coast and Eastern province where the Oromo population may lean towards the movement for
an Oromia state. Federalism's main weakness is that it is a very expensive system that duplicates
services and office holders at the regional and federal levels. It lacks uniform policies on such issues of
national concern as laws regulating marriages, divorce, abortions, liquor, voting rights and public
education. Rather than ensuring economic equity, as many proponents of majimboism assume, it sets
those regions, states or cantons with a weak market-base, capital, and resources down the spiral of
economic decline. It subjects local governments to double subordination-by the central and regional
governments-and the citizens to triple taxation. At a time when the country's economy is on its knees,
the feasibility of a well-financed transition is highly doubtful.
Federalism just creates support bases for secessionist movements, increasing the
likelihood of ethnic conflict – federalism only works where there are zero security
threats.
Galligan 7 (Brian, Professor at the University of Melbourne, Australia. 2007 APSA Conference,
“Federalism, Subnational Government and Rights Protection” 26 September 2007.
www.arts.monash.edu.au/psi/news-and-events/...nz.../galligan.doc AD 7/6/09) JM
If this is what makes the multinational version of federalism attractive, it is
also the source of its weakness.
Using federalism to provide an institutional basis for ethnoculturally distinct peoples
can ‘either exacerbate or mitigate ethnic conflict’, as Horowitz (1985, 603) has pointed out. Where
there are deep divisions that divide regions, such as slavery in the United States,
federalism can provide institutional assistance for secession ‘by creating
opportunities for conflict and providing the region’ with the opportunity and the
institutions needed to mobilize support for secession (Anderson 2004, 96). Canada’s long-standing
national crisis over Quebec separatism shows how vulnerable multinational federalism can be, even in a long standing liberal
democracy. Studies of failed federations and attempts to deal with regions of ethnic conflict provide ample evidence of this dangerous
aspect of federalism (Dorff 1994, 99-114). Federalism
is in trouble where there is too little national
sense among the people, and too sharp differences among regionally based ethnic,
religious and linguistic groups. Examples abound in post-colonial federations hastily drawn up by retreating
European powers (Franck 1968), or in the recent failure of Yugoslavia where there was insufficient cohesion in the multiethnic
Yugoslav community (Zagar 2005, 107-33). As Kymlicka points out, multinational
federalism works best
where there are no security risks and deep consensus on liberal democratic values and respect for human rights,
including the recognition of and tolerance for ethnic differences. This explains why Europe has become the main theatre for
multinational federalism: the European Union ensures joint security and reduces the sovereign independence of nation states, and
there is deep consensus on liberal democratic values. In such a congenial environment, multi-national member states like Belgium and
Spain can adopt multinational federalism. Countries
without an overarching transnational
association to ensure national security and without a deep consensus on liberal
democratic values, such as many of the Asian countries, will not be drawn to
federalism in the same way.