Dual Regulation, Collaborative Management, or Layered Federalism: Can Cooperative Federalism Models from Other Laws Save Our Public Lands?
To realize the goals of conservation biology and ecosystem management, the institutions that govern these systems must be able to work together harmoniously, across political boundary lines and into a biologically uncertain future. The rigidity of the current public lands model creates substantial barriers to the achievement of these goals.
This article's working premise is that unless the current governance structure for the management of public lands changes, the political conflicts over their use and management will continue to blight their future, just as it has marred their past. Further, failing to adapt the management of public lands to our changing perceptions about the nature and needs of the biological and social communities that depend upon them will only engender a new generation of conflicts and further diminish the vitality of those communities. Nowhere are these conflicts more intense and the risks and consequences of failure higher than on the "public domain" lands; those lands managed by the Bureau of Land Management (BLM) under the authority of the Federal Land Policy & Management Act (FLPMA).
The purpose of this article is to determine whether there are alternatives models of federalism, which might improve the management of public domain lands. None of the models discussed here, however, proposes complete rescission of federal authority over public lands; rather they offer an enhanced role for states in the federal decision-making process. A continuing federal presence is assumed to be necessary to prevent inter-state distribution inequities from arising or economic discrimination from occurring. Only the federal government can correct market failures when they occur and uniformly protect national norms, such as our natural heritage. And even if the Western states are becoming more supportive of these norms as some assert, serious questions would remain about the ability of those states to take on sole responsibility for management of these lands without an infusion of new funds.
The article examines three models of governance ("dual regulation," "collaborative management," and "layered federalism") found in other areas of environmental law to determine whether their application to public domain lands might lessen the federalism tensions inherent in the current model and enhance the land manager's ability to make decisions that are both ecologically sound and reflect the new voices populating these lands. Achieving rational ecosystem management and a more democratic mode of decision-making may be of greater importance than attaining non-fractious governance. Intergovernmental friction may be a necessary, unavoidable, even welcome byproduct of our "compound republic" form of government; a transaction costs of a federal structure that relies on overlapping and sometimes conflicting jurisdictions of governance to safeguard those liberties not protected by the explicit constitutional guarantees. No such benefit accrues from the other two problems.
The structure of the article is straightforward. Part II examines the current federalism model on public domain lands and concludes, despite some of its virtues, the model has caused inter-governmental friction and created barriers to rational ecosystem management and community-based participation in the decision-making process. Part III describes and then critiques each of the alternative federalism designs against the same three criteria. The article concludes by suggesting which, if any of the models holds the greatest promise for resolving the problems besetting public lands management. While the author recognizes that these problems may be too complex, diverse and endogenous to the public lands experience or a specific geographic area to enable a "single size fits all solution," she hopes that the analytical exercise of examining these models may enrich the storehouse of ideas we draw from in the search for solutions.
14 Hastings W.-Nw. J. Envtl. L. & Pol'y 449-482 (2008)
Scholarly Commons Citation
Babcock, Hope M., "Dual Regulation, Collaborative Management, or Layered Federalism: Can Cooperative Federalism Models from Other Laws Save Our Public Lands?" (2008). Georgetown Law Faculty Publications and Other Works. 947.
Environmental Law Commons, Natural Resources and Conservation Commons, Natural Resources Law Commons