St. Thomas Law Review
Article Title
Environmental Federalism in the United States and the European Union: A Harmonic Convergence
Abstract
In 1788, Benjamin Franklin wrote to some European friends just after the United States Constitution was signed in Philadelphia, "I send you. . . the proposed new federal Constitution for these states [i]f it succeeds, I do not see why you might not in Europe [do the same] by forming a Federal Union and one grand republic of all the different states and kingdoms; b' means of a like Convention, for we had many interests to reconcile." Here, in the twenty-first century, Americans still measure their system of federalism with reference to the same document to which Franklin referred. It was not until the mid-twentieth century, however, that the European Union began its evolution in the direction of a federal system. The New World's experiment in federalism is over two centuries old, while the Old World's continental effort is really just beginning. Both the Constitution of the United States and the treaties forming the European Union developed following wars: The American Revolution and World War II, respectively. In both situations, the importance of central authorities has grown since their initial formation, in the United States especially following the American Civil War and the Great Depression, and in Europe as the European Union emerged from the Coal and Steel Committee and then the European Economic Community following the Cold War. Comparisons of the founding eras of the two movements may be an appropriate task for historians. My task here is less ambitious. Today, I would like to take some 2002 "snapshots" of federal-state relations in the United States and in the European Union and make comparisons between the two systems. Before we begin, though, let me make two caveats about the discussion that follows. First, a comparison of the entire panoply of federal-state relations on the two continents is beyond my objective. Though such comparisons may be useful, they require much lengthier and weightier scholarship than appropriate to this brief paper. For the sake of greater utility, but perhaps to fewer practitioners, I will make comparisons only in one policy area - environmental law. Those who feel tempted to draw inferences for other policy areas are reminded of the Hindu fable about the "blind man and the elephant." Second, the discussion here is tentative - I sketched these comparisons during several days over the last month. It is not the result of the type of scholarly investigation and analysis usually found in law review articles. Like most discussions of federal-state relations, I will survey two dimensions - structure and function. By structure I mean the organization of the powers of government-legislation, execution, administration, and adjudication. By function I mean, "the conserving of soil . . . the harnessing of water power ... the collection of taxes and fees, and all the myriad activities with which modern administration is charged." Intergovernmental relations can be viewed as "the reciprocal adjustment of function and area." By area I mean "the ordinary citizen's ambit as he moves about from home to his work and his play, and the physical, social, and economic areas dictated by the location and movement of phenomena with which social action is concerned."