The Functions of Overlapping Pollution Control Federalism

Abstract

Using the federal pollution control laws as examples, this chapter explores the significance of governmental function in understanding and prescribing overlapping authority. It begins by showing how characterizations of pollution control federalism have neglected functional jurisdiction, either by overlooking the extent of overlap entirely or, more recently, by overlooking the extent to which agencies' substantive and functional jurisdictions overlap. It then argues that assessments of pollution control federalism have routinely ignored the value of distinguishing among different regulatory functions in assessing the extent to which jurisdiction should overlap or be distinct. Finally, the chapter asserts that policymakers should systematically and explicitly distinguish among functions in deciding the extent to which authority should overlap. Focusing on functional jurisdiction thus provides opportunities to tailor the extent of overlap for each function to correspond to the concerns and opportunities that relate to the performance of that function.