1. How and Why the United States Is Exceptional

While most environmental protection laws are a relatively recent development, these measures built on centuries of policies that shaped the natural environment. European nations inevitably imposed legal systems in colonies they established to capitalize on natural resources in distant lands.Footnote ¹ Abroad, European land hunters tenaciously cleared land, filled wetlands, built farms, and extracted salt, iron, precious metals, and other valuable materials. Advances in international markets increased demand for furs, crops, and timber.Footnote ² Even then, governments limited the rate of colonial resource exploitation to serve practical purposes, such as preserving trees suitable for ship masts. Local, regional, and national governments began to expand environmental conservation in the nineteenth century. In the mid-twentieth century, regional and national governments began more systematically to mitigate environmental hazards in the air, water, and soil. Between 1965 and 1975, the number of environmental laws increased dramatically in the wealthy nations of the Organisation for Economic Co-operation and Development (OECD).Footnote ³ In this period, the United States became an international environmental leader.

In the 1960s and 1970s, the United States pioneered strict and confrontational environmental laws and led international efforts to mitigate global environmental problems.Footnote ⁴ American environmental quality standards were “more stringent, comprehensive and innovative than in either individual European countries or in the European Union.”Footnote ⁵ The U.S. government pioneered the use of environmental impact statements, an important tool for auditing environmental threats of proposed activities. Nations around the world adopted this American invention.Footnote ⁶ The United States was a catalyst in the 1972 United Nations Conference on the Human Environment and in major international environmental treaties throughout the 1970s.Footnote ⁷

But American environmental efforts have fallen behind comparable wealthy democracies since the 1980s.Footnote ⁸ In a 2016 analysis of clean air and climate policy stringency in the OECD nations, the United States ranked below average, nineteenth out of thirty-three nations. The Scandinavian nations, Germany, Switzerland, South Korea, Japan, and Canada all ranked ahead of the United States.Footnote ⁹ The Bertelsmann Foundation ranked the United States dead last among forty-one nations in its wide-ranging index of environmental protection and clean energy efforts.Footnote ¹⁰ The libertarian, free-market Fraser Institute of Canada, adjusting for such factors as the remoteness of pollution from populated areas, ranked the United States twenty-third out of thirty-three nations on environmental performance (Canada ranked tenth).Footnote ¹¹ Once a leader in international environmental negotiations, the United States declined to participate in many international agreements after 1980 and refused to ratify them (the 1987 Montreal Protocol on ozone depletion is a major exception).Footnote ¹² Although President Obama unilaterally signed the Paris Climate Agreement of 2015 and took executive action to implement it, his efforts were not durable; his successor rejected the agreement and terminated implementation.Footnote ¹³ While California and some other states actively extend environmental protections, many states do not, including those that depend heavily on producing or consuming fossil fuel resources.

Comparison with Canada, the nation most similar to the United States, helps clarify the singularity of this American environmental policy shift. The two nations share ecosystems and abundant land, freshwater, forests, and fossil fuel reserves. Both nations developed as settler societies, where Europeans occupied lands that indigenous peoples inhabited. English culture and common law are embedded in the development of both nations. Canada, like the United States, is a wealthy capitalist democracy with a federal political system. In both nations, subnational governments have boosted the use of natural resources for profit (and for government revenue). Both Conservative and Liberal Party prime ministers have supported pipelines to facilitate the export of Canadian oil and natural gas.Footnote ¹⁴ While Canada's environmental policy performance has surpassed that of the United States, its performance has been modest compared to leading OECD nations. As in the United States, changes in party leadership of government resulted in a fitful pattern of climate change policy in Canada.

Despite its similarities to the United States, Canada unmistakably has pushed environmental protection further than the United States since the 1970s. Unlike the United States, Canada formally ratified the 2015 Paris Climate Agreement. The nation issued a Pan-Canadian Framework on Clean Growth and Climate Change in 2016.Footnote ¹⁵ The four most populous provinces—Ontario, Quebec, British Columbia, and Alberta—initiated a carbon tax or cap-and-trade system prior to the requirement by the federal government that all provinces would have to have a carbon pricing system by the end of 2018, and all the provinces had enacted carbon pricing by January 2020.Footnote ¹⁶ Unlike the United States, Canada has ratified such international environmental treaties as the 1989 Basel Convention on Transboundary Movements of Hazardous Wastes and Their Disposal, the 1992 Convention on Biodiversity, and the 1998 Protocol on Persistent Organic Pollutants. Canadian land-use planning, a provincial responsibility, is more proactive than American land-use planning; it favors more compact urban areas that reduce carbon energy use and encourages mass transit.Footnote ¹⁷

Factors like wealth, culture, and political polarization cannot sufficiently account for the relative American policy shift from leader to laggard. Although some American leaders single out environmental regulations as constraints on national economic growth, comparably wealthy democracies with more ambitious environmental policies have experienced at least as much or more economic growth than the United States.Footnote ¹⁸ American environmental policy pioneer Lynton Caldwell ascribed American reluctance to regulate the environment to its exceptional free-market political culture.Footnote ¹⁹ But political culture did not stand in the way of American environmental leadership. Caldwell's observation was published just as Congress passed unprecedented new laws—including the National Environmental Policy Act, which Caldwell himself heavily influenced.

Intense political polarization—the increasing separation of Democrats and Republicans in political attitudes and behavior—clearly affected the shift in American environmental policy. While Democrats and Republicans tended to agree on the need for environmental protections half a century ago, environmental policy has become bitterly polarized since then.Footnote ²⁰ By 2012, those who identified as Democrats remained very supportive of the need for strong environmental protections, but fewer than half of self-identified Republicans agreed.Footnote ²¹ Anti-regulatory ideas have powerfully dominated the Republican Party, starting with the Reagan administration in the 1980s.The Republican Party has grown even more intensely hostile to regulation.Footnote ²² The denial of climate change distinguishes the American Republican Party from other major conservative political parties among wealthy democracies. The World Economic Forum has asserted that it is the American “division between the congressional parties that prevents serious progress in many issues of environmental and climate protection.”Footnote ²³

But political polarization is not a sufficient explanation for this shift because political polarization alone cannot explain why opponents of environmental regulation enjoyed such exceptional success in the United States. First, neoliberalism affected public policy in all the major wealthy democracies, not just the United States, but their environmental policies did not experience the exceptional shift seen in the United States. Second, polarized public opinion on climate change and the environment do not strongly shift policy outcomes in themselves. While left and right party candidates in Germany, Denmark, Sweden, and Australia have polarized on these issues, the first three of these nations rank higher on the OECD environmental stringency index than the United States.Footnote ²⁴

Above all, the antipathy toward environmental regulation is inseparable from the deeply rooted institutions that shape the interests and strategies of Republican donors, elites, and supporters. These embedded rules for governing the American environment foster confrontational environmental regulations, followed by intense backlash against these policies.

2. Institutions are Necessary to Understanding the Shift in American Environmental Policy

The American environmental policy shift in the 1970s was layered atop two centuries of entrenched environmental control by private landowners and state governments. These two institutions—private real property and federalism—differ from property rights and federalism in comparable nations in ways that shaped policy development since the environmental era of the 1960s and 1970s. The exceptional developments of American environmental policy over the past fifty years progressed along a path structured by these interwoven institutions.Footnote ²⁵

American farmers, ranchers, mine owners, and others became accustomed to exceptionally broad prerogatives over their environmental domains over two centuries. They have enjoyed expansive autonomy to buy, sell, and, for the most part, control and use their natural resource domains as they wish. Scholars emphasize that these broad private-property rights have been a critical factor in the development of American economic prosperity.Footnote ²⁶ Economic historian Gary Libecap credited its broad and strong private-property protections for a record of prosperity, well-being, and freedom unique to the United States.Footnote ²⁷ Lynton Caldwell, a critic of this perspective, agreed that “the existing aggregation of laws and practices pertaining to land ownership and use are beneficial primarily to persons interested in exploitation or litigation…. No other society appears to have gone so far in leaving the fate of the land to the discretion of the private owner.”Footnote ²⁸

American federalism works with private property to encourage the use of natural resources for profit. Political scientist Barry Weingast emphasized that the United States has a uniquely “market-preserving” form of federalism that made property rights exceptionally secure.Footnote ²⁹ State governments became used to managing their internal environments and natural resources (except federally owned properties). Interstate economic competition has intensified the state policies designed to profit from environmental endowments. States have strong incentives that encourage private owners to exploit the resources they own and that minimize laws restricting the use of land and natural resources. Other forces can counterbalance these incentives and contribute to stronger conservation and environmental measures. But these deeply rooted incentives are strong, durable, and dominant in many American states.

From the start of American history, struggles for political control shaped the way its distinctive property institutions and federalism have structured environmental politics. These institutions, cemented into environmental governance in preindustrial America, are easy to overlook because their origins are distant and their effects are not conspicuous. But, in historian Colleen Dunlavy's astute phrase, the “structuring presence” of those institutions is indispensable for explaining how and why proponents and opponents of environmental regulation were compelled to make federalism the key policy battlefield of the environmental era.Footnote ³⁰ Explaining the distinctive, enduring impact of these institutions requires an understanding of the political purposes they served in the founding period, and the way this positive feedback shaped the sequence of political accommodations that affected American environmental governance for decades since.

3. The Colonial-Era United States Established Broad Private Rights to Control Real Property

American private landowners gained extensive control over their environmental domains in the colonial period, and the states that succeeded the colonies strengthened this private control. Once put in place, these laws gave property owners exceptionally strong tools for fighting restrictions on their use of their land. Put in place in a preindustrial economy, these basic rules have remained in place as the U.S. economy evolved into an urbanized, industrialized economy with unimagined land uses and environmental threats.

Broad rights for individual landowners provided a solution to the problem of governing the American colonies: how to exercise public control over an immense, exotic landscape with a thinly scattered European population. Unlike the populous but limited territory of Britain, a small number of Europeans populated a number of separate colonies spread across a thousand-mile-long North American coastal region inhabited by sometimes hostile natives.Footnote ³¹ Colonial officials discovered that privatized real property adequately solved this governance problem for the very different colonies. These officials encouraged European residents to take ownership of environmental parcels, “free to develop, sell, mine, or clear their land, unless prohibited by law; for whatever price the market would pay.”Footnote ³² English common law and the feudal system already were evolving toward the commodification of English land. The vast territory of the thirteen American colonies—abetted by their distance from the seat of English government, and the political turmoil of the home country in the seventeenth century—accelerated the pace of this private-property system faster and more fully than in England itself.Footnote ³³

Two key cases, Virginia and Massachusetts, exemplify how trial and error steered these very different American colonies toward the similar guarantees of broad private-real-property rights. Despite very different ecosystems, types of immigrants, and colonial philosophies, both colonies abandoned original management plans and made a virtue of privately owned parcels of landscape.

The Virginia Company, founded by profit-seeking investors, initially employed harsh military-style discipline to direct land use, production, prices, and individual behavior.Footnote ³⁴ When gold and silver did not materialize, Virginians hit upon on opportunities afforded by growing tobacco for export. Motivated by personal ambition, colonists claimed and cultivated lands radiating outward from Jamestown. Virginia's leaders tried to use strong discipline to govern these subjects, but discipline became increasingly useless as land-hungry settlers scattered across the landscape.Footnote ³⁵ Once it became a royal colony in 1624, Virginia's leaders employed a much more practical and indirect approach: They implemented legally enforceable land boundaries and titles, and they constructed an administrative system with some property regulations, some local policing, and courts to adjudicate property disputes. Government-certified private landholdings and free markets enlisted the acquiescence of landowners, the most influential local residents. Rights to immovable property encouraged individual investors to make the environment economically profitable. Private landholdings with fixed boundaries were easier to tax. With the right to vote, freeholders had a stake in their own laws and administration. The legal system, with the acceptance of local landowners, became crucial to governing: Local courts became “the institutional nexus of justice, administration, taxation, and local governance in the new regime.”Footnote ³⁶

Six hundred miles to the northeast, the Massachusetts Bay colony gradually replaced its initial plans for communal land use with broad individual private-real-property rights. The Puritan founders of Massachusetts Bay mandated that families settle in towns built around a nucleus of a church and town center, with many fields held in common fanning out from this center.Footnote ³⁷ But abundant land and individual ambition undermined this model. Massachusetts colonists seized additional land for their own crops and domestic animals, to reap the benefits of their individual effort on their own land.Footnote ³⁸ Bowing to this centrifugal pressure, private ownership of land parcels spread across the Massachusetts landscape.Footnote ³⁹ Colonial government sanctioned this change, gradually gaining expertise in settling land conflicts unknown to English common law.Footnote ⁴⁰ Massachusetts went even further than England and Virginia in constructing a systematically administered environment of private real property. Massachusetts much more carefully recorded land ownership and ensured rectangular land surveys.Footnote ⁴¹ Ownership maps, deeds, and regulations helped state and local governments keep track of the private subdominions, and to tax the land and improvements on it.

As the American colonies continued to simplify the sale, purchase, and titling of land, private owner control of real property advanced faster in the future United States than in England.Footnote ⁴² After independence, the American states reinforced these arrangements by adding explicit protections against government seizure of private land. States made this government power of “eminent domain” much more costly by requiring “just compensation” to private owners.Footnote ⁴³ The Fifth Amendment to the U.S. Constitution extended this rule to the federal government. Decades later, the U.S. Supreme Court declared that even regulations that restricted land uses could constitute a taking that required just compensation.Footnote ⁴⁴ These fair compensation requirements have armed landowners with legal weapons for challenging environmental regulations, and these weapons havebeen used vigorously in recent decades.

These expansive American real-property rights prioritized and encouraged the use of natural resources for profit. James Wilson, a framer of the 1787 Constitution and one of the original members of the U.S. Supreme Court, specifically cited the failed experiments in Massachusetts and Virginia when he praised the natural and “exclusive” right to property as a superior means of governance. He argued that exclusive property ensures that “the productions of the earth and the means of subsistence are secured and preserved, as well as multiplied.” For Wilson, private, exclusive organization of the landscape is an essential tool for governing a populous territory: “Exclusive property prevents disorder, and promotes peace” and “is a principal source of attachment to the country, in which one resides.”Footnote ⁴⁵

Canada, which became mostly self-governing in 1867, inherited more limited private property institutions than those that the United States had put in place in the preceding century. Canadian privately held property rights remain more limited than American land rights in two important ways. First, as is true in most countries, Canadian landowners lack the broad legal protections against eminent domain powers that American property owners enjoy. The Canadian government, like the governments of the United Kingdom and Australia, never implemented American-style constitutional protection against property takings. In a comparison of thirteen wealthy democracies, Canada ranked last in compensation rights for land taken by the government.Footnote ⁴⁶

Second, private ownership of property beneath the soil—including minerals, coal, oil, and others—is rare in Canada but common in the United States. In the early republic, the federal government conveyed farmland to private parties without making any claim on the minerals beneath the land.Footnote ⁴⁷ Today, the United States “is unique in the world insofar as private individuals own a majority of subsurface minerals.”Footnote ⁴⁸ Canadian subsoil resources and forests were owned by the British Crown until that ownership largely passed to provincial governments rather than individuals after 1867. Today, Alberta, with immense oil reserves, owns 81 percent of the province's resources (the national government owns another 10 percent).Footnote ⁴⁹ Of course, policymakers face powerful incentives for expedited extraction in both nations. But Canadian provinces have more opportunity to administer the use of natural resources from a broader, longer-term perspective than American states because provinces own most of these resources in Canada, while private-property owners control subsoil rights in the United States.Footnote ⁵⁰

4. The U.S. States Institutionalized Governance of Land and Natural Resources

In the critical years between the Declaration of Independence and the crafting of the U.S. Constitution, American colonies took control over the environment within their boundaries. The national government acquiesced to state governance of natural resources in this period. Congress undertook the tasks of parceling and privatizing land as a commodity and preparing the development of new states to govern a largely privatized landscape.

The colonies reinvented themselves as separate, self-governing republics when they divorced themselves from Britain. Each state claimed authority over its internal lands and natural resources.Footnote ⁵¹ The states made steady progress in gaining a measure of effective control over their lands east of the Appalachians.Footnote ⁵² Long accustomed to exercising many of the prerogatives of environmental governance, the states used their new independence to fortify broad property rights, implement property taxes, and employ regulation and military power.Footnote ⁵³

Governments of these new states sped up the process of organizing, privatizing, and administering their internal environments. The state of Virginia set the pace, shedding remnants of English feudal claims and obligations and declaring that freeholders had “absolute and unconditional property” rights with “fee simple” titles.Footnote ⁵⁴ Virginia established a government land office to sell off unclaimed state land to private parties.

The state and local governments secured their territorial power by taxing privately owned real estate. These taxes left arable lands in private hands but required governments to authenticate the ownership, size, value, and uses of lands.Footnote ⁵⁵ Massachusetts and other New England states had implemented real-property taxes for decades and quickly adapted these policies to independent statehood. Virginia initially had little ability to tax property but developed a workable land tax policy by 1782. Once in place, property taxes diverged widely among the states, effectively preempting a national property tax. When the U.S. Treasury secretary surveyed the state property tax systems in 1796, he found them “utterly discordant and irreconcilable, in their original principles”—a fact that stymied any practical nationwide property tax layered atop the diverse state tax systems.Footnote ⁵⁶

States and especially their local governments also extended colonial regulation of land and natural resources. The English common law of nuisance already set some limits on landowner actions that affected others. Colonial land titles routinely had included requirements that owners clear, fence, or otherwise improve the land, subject to penalties or liability for damages. In some colonies, owners could lose mineral rights to their land if they failed to extract resources. Landowners could lose control over undeveloped riverside sites suited to the construction of mills or ironworks. Towns sometimes required the removal of unsightly or noxious vegetation. Some restrictions aimed to control the density of land use in towns. Other regulations aimed to set building standards for community safety.Footnote ⁵⁷ New England states’ regulations complemented bounties, tax abatements, monopoly rights, and road and bridge building to nurture mills, glassworks, and saltworks.Footnote ⁵⁸

As independent governments, the states exercised treaty making and military power to increase effective control of the territories they claimed. Colonists’ spreading land demands sparked ferocious resistance where they clashed with Native Americans’ land use. Colonial and state governments developed harsh tactics to overpower this Native American resistance and to clear Indians from desired lands. Virginia conducted wartime Indian massacres as early as 1610, indiscriminately killing villagers, burning villages, and destroying crops. Connecticut soldiers vigorously slaughtered Pequot villagers in a notorious 1637 massacre. To destroy native resistance to the Europeans’ incursion on their lands, colonies developed agile ranger units that combined mobility, guerilla tactics, and unlimited destruction. To increase the number of Indian hunters, some colonial governments offered bounties for Native American scalps.Footnote ⁵⁹ When American settlers poured into Kentucky seeking land in the 1770s, the state governments mobilized to protect them.

The states took charge of suppressing Indian resistance because the financially hard-pressed Congress had little capacity to do so. When the British tried to enlist the Cherokees as allies against the southern frontier of the rebellious United States, Virginia, South Carolina, and North Carolina military units laid waste to their settlements and compelled the Cherokee to accept tributary status. After Continental army troops proved ineffectual in pacifying Virginia's lands north of the Ohio River, Virginia commissioned George Rogers Clark and a force of rangers to drive the Shawnee from the area. The ruthlessness of Clark's forces, sometimes matched by the Shawnees, continued even after the British surrender at Yorktown.

5. The States Competed to Control Territory

The newly self-governing states competed and clashed over control of the vast American landscape. Each new state government viewed authority over land, the most valuable commodity in English North America, as a major advantage. New York and Massachusetts claimed Vermont. Pennsylvania disputed its borders with Maryland and Virginia. Connecticut settlers carved out settlements in the Wyoming River valley entirely within Pennsylvania, and the state of Connecticut recognized the area as a county of Connecticut. Land companies representing clashing state interests maneuvered to advance their own state's claims.Footnote ⁶⁰

Immense disparities of land inflamed these state rivalries. Seven land-rich states—Massachusetts, Connecticut, New York, Virginia, North and South Carolina, and Georgia—reasserted their colonial charter claims to lands that stretched from the Atlantic coast to the Mississippi River. Virginia claimed the Kentucky territory and all of the vast “Northwest Territory” between the Ohio River and Canada. Pennsylvania, Massachusetts, and Connecticut also claimed western strips of these lands.Footnote ⁶¹ These land-rich states could reap substantial revenue from selling this land, relieving political pressure to tax their residents and allowing them to grant land to restive soldiers. Favoritism in dispersing land could please influential speculators and land companies.

Virginia forcefully asserted its territorial claims.Footnote ⁶² In its 1776 Constitution and subsequent laws, the state declared control of land within the expansive boundaries of its original colonial charter, including the Northwest Territory. The state declared void any land company purchases from Indian tribes in this area, a mandate that angered land speculators in other states who had been trying to capitalize on these lands.Footnote ⁶³ Virginia outraged other states by creating a state land office to distribute these lands. This controversy forced the national Congress to begin to sort national and state authority over the landscape.

6. The U.S. Congress Acquired, Commodified, and Conveyed Natural Resources to Private Owners and States

Between 1776 and 1787, the U.S. Congress set national government responsibility to commodify and transfer most of its acquired land to private parties and to accede to states the authority to govern these privatized natural resource domains. Congress's actions marked a critical turning point in American environmental governance because it extended evolving environmental responsibilities to a vast new territory: formerly British lands between the Appalachians and the Mississippi River, an area much larger than the colonial lands between the Appalachians and the Atlantic coast. State environmental authority was secured in the Articles of Confederation and Virginia's conditional cession of northwestern land claims. The Land Ordinance of 1785 established the federal role in commodifying and distributing lands. The Northwest Ordinance of 1787 ensured the handover of these privatized environmental domains to state administration.

A counterfactual captures the critical importance of this period for the development of American environmental policy. Had Congress exercised more direct control over the administration of arable land, it might have greatly strengthened national leverage in the American environment thereafter. Instead, Congress's choices entrenched the states’ authority over their internal environments, and within the states, private landowners’ control over environmental domains. Instead of environmental control over arable land, the national government would pacify, survey, distribute, and title lands that the new states would govern.

7. The U.S. Constitution Cemented Environmental Authority in Economically Competitive States

The 1787 U.S. Constitution cemented these evolving environmental institutions and stripped the states of some defenses against economic competition from other states. First, the Constitution established national power to manage acquired land and left intact its responsibilities to commodify this land for private owners and the states. Second, it bolstered the states’ control of their internal affairs, including the environment within their borders. Third, it eliminated some of the powers the states had used to gain competitive advantage over other states. Fourth, it enabled states to resist national rules that impinged on their administration of private natural resources. Fifth, it enabled regions of states with shared interests to block, delay, or weaken national laws, including environmental protection. Together, these constitutional provisions underwrote state governance of most of the American environment and strengthened state incentives to capitalize on the use of their natural resources for profit in competition with other states.

1. 1. Federal sovereignty over American territory. The Constitution institutionalized the federal government's sovereignty over the territory it claimed. As the agent of the nation's interests in the world, Congress now had an express warrant to make treaties with foreign powers and with Native American tribes. It could mobilize an army to control its territorial claims. Armed with stronger treaty and military authority, the U.S. government soon took charge of driving Native Americans out of the way of European settlement.Footnote ¹⁰⁶ Congress could levy tariffs and other taxes to pay for the military, land surveys, and land disposal. It could make trade agreements that expanded markets for crops and natural resources. The Constitution enumerated federal legislative authority and declared that federal laws—within the boundaries of this authority—superseded state laws. The Supreme Court subsequently upheld federal laws such as air pollution regulation as a legitimate exercise of federal power in interstate commerce.Footnote ¹⁰⁷ These provisions must be understood in the context of the decision of the federal government to survey and transfer most of its arable land to private parties, ultimately accepting that the states would govern most of the land within their borders.Footnote ¹⁰⁸

2. 2. State governance of the privatized land. The Constitution underwrote the policy that the states retained the regulation of land, its uses, and commerce within their boundaries. Congress's powers did not include the authority to manage or police private property. Roger Sherman, a leading participant in the Constitutional Convention, assured his state's governor that the added national powers “extend only to matters respecting the common interests of the Union and are specially defined, so that the particular states retain their Sovereignty in all other matters.”Footnote ¹⁰⁹ In the Federalist, Alexander Hamilton declared that the “supervision of agriculture and of other concerns of a similar nature … which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction”Footnote ¹¹⁰ Today the states still administer most of the inhabited American environment.

3. 3. States stripped of sovereign economic defenses. The Constitution increased each state's exposure to interstate economic competition, strengthening state government incentives to administer their natural resources for short-term profit. The colonies long had used land, trade, currency, and credit policy to protect their own economic and political interests, and the newly independent states used these tools more actively. For example, states could protect debt-ridden farmers by printing additional currency to inflate prices and protecting debtors from creditors.Footnote ¹¹¹ When a nation-state uses these tools, it can delay, shift, or even conceal some of the adverse impacts of popular redistributive or regulatory policy.

   The Constitution stripped the states of most of these policy defenses. States could not block competitors or try to price out of state competitors out of the in-state market.Footnote ¹¹² Without these powers, state laws that interfered with the discretion of private-property owners to fell trees, farm, mine, drill, and build could have immediate, visible, and negative consequences for public officials, especially if they harmed state employment or public revenues.

   This increased economic exposure placed strong pressures on American state officials—elected for relatively short terms of office—to nurture short-term market-driven economic growth, resist proposals that reduced the economic value of natural resources and commodities, and copy policies that benefited in-state private enterprises.Footnote ¹¹³

4. 4. State power to resist federal control. States were expected to defy unwelcome federal government policies, through their own legislatures and through the influence designed for them into the national policy process. In public and in private, James Madison put great stock in the states’ capacity to defy the federal government. Several weeks after Virginia and New York ratified the Constitution, he assured Jefferson that “the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.” In presenting the future Bill of Rights in the first new U.S. Congress, he declared that the “State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do.”Footnote ¹¹⁴ A few years later, Madison and Jefferson themselves would write the Virginia and Kentucky state resolutions defying the use of federal power by the Adams administration. Individual state defiance could succeed indefinitely under the right circumstances (as in Nevada's resistance to the Yucca Mountain nuclear waste site), but regional alliances of states provide much more potent examples of successful state defiance of the federal government.

5. 5. Regional defense of state resource control. The Constitution fortified the power of regional coalitions of states to obstruct national rules, an institutional feature that contributes to the environmental policy polarization today. At the Constitutional Convention, Madison observed that “States were divided into different interests above all … by other circumstances [than their size]; the most material of which resulted partly from climate, but principally from [the effects of] their having or not having slaves.”Footnote ¹¹⁵ Southern delegates insisted on rules that defended their slaves and the commodity exports they produced. Georgia's Pierce Butler declared bluntly, “The security the South[ern] States want is that their negroes may not be taken from them.”Footnote ¹¹⁶ After the Great Compromise made their influence in the new government less certain, Southerners successfully pressed for a boost in their representation in the House of Representatives and the Electoral College. They also secured enumerated federal powers, protection for the slave trade, and the return of escaped slaves.Footnote ¹¹⁷ The continued ability of the South to resist civil rights law shows that these rules, particularly equal representation in the U.S. Senate, made it possible to build a very successful Congressional coalition that could resist national directives, including environmental rules, even if the region represented a minority of the American population.

   These constitutional provisions also impeded the success of regional coalitions in favor of national restrictions on pollution and the exploitation of natural resources. The separation of powers and independence of the branches advantages opponents of new federal laws because they provide multiple veto points for stopping, slowing, or weakening such initiatives. The Constitution also left the judiciary in a position of acquiring independent power in public policymaking—eventually encouraging adversarial litigation and the judicialization of political conflicts in many environmental and other policy battles.

8. Enduring Consequences of State Natural Resource Management and State Exposure to Economic Competition

Since the adoption of the Constitution, many state officials, often viewing other states as economic competitors, often have fostered public policies that privileged private entrepreneurs and the swift exploitation of natural resources—forests in the upper Midwest, coal in Appalachia, oil in the south-central states.Footnote ¹¹⁸ Since the expansion of national environmental regulation in the 1970s, some state officials consider laxity environmental regulation a tool for attracting investment and economic development—absent unusually strong public support to the contrary.Footnote ¹¹⁹

Polluting industries’ threats of disinvestment or relocation can influence environmental policy as strongly as actual relocation.Footnote ¹²⁰ In the 1960s, a U.S. Bureau of the Budget official pointed out that

The first director of the U.S. Environmental Protection Agency (EPA), William Ruckelshaus, recalled that environmental protection in the 1960s “was left to the states, and they competed with one another so fiercely for the location of industry that they weren't very good regulators of those industries.”Footnote ¹²² A 1990s survey revealed the durability of this observation, concluding that “concern over industry relocation and siting causes state legislators and business groups to exert substantial pressure upon state environmental regulators to relax the strictures of state environmental programs.”Footnote ¹²³ During a much more recent debate on a bill to address climate change in New York state, Greg Biryla, state director for the National Federation of Independent Business, warned, “This just makes other states that much more attractive for investment.”Footnote ¹²⁴ Political scientist David M. Konisky found that state regulators are keenly aware of the competitive regulatory actions of rival states.Footnote ¹²⁵ Other scholars found that interstate competition discourages state efforts to enact significantly more stringent regulations than those of other states, and that some polluting industries relocate part of their production to less polluted areas to avoid stricter regulation.Footnote ¹²⁶

Notably, some states overcome the drag of interstate economic competition to become national and global leaders in environmental protection. Political scientist William Lowry found that the force of interstate competition is neither a uniform nor an insurmountable in American environmental policy. California and other American states have actively pursued environmental protection policies despite the limitations they impose on short-term profits.Footnote ¹²⁷ Why is California more willing than other states to regulate its environment? Political scientist David Vogel explains that, compared to most states, California gains more than it loses by doing so. California governs an extraordinarily beautiful landscape from the Pacific to the Sierras. Its citizens and some of its businesses have a higher than average stake in protecting that environment. With a huge and diverse economy, grave environmental threats, powerful electoral support for environmentalism, a business sector that often is divided on environmental issues, and recent governors of both parties committed to addressing climate change, interstate economic pressures have often receded before environmental protection initiatives.Footnote ¹²⁸

Unlike the American states, there is been little evidence that Canadian provinces compete to relax their environmental standards to attract business and private investment.Footnote ¹²⁹ Three features of Canadian institutions greatly reduce these incentives. First, the Canadian federal government, like those in most other federal systems, redistributes revenues to equalize revenues among the provinces. These equalization payments—justified by unequal regional access to revenues from oil and other natural resources—provide a measure of interprovincial fiscal equity that relieves competitive pressures.Footnote ¹³⁰ Second, there are nationwide prohibitions against provincial subsidies to attract investment, preventing a massive provincial bidding war for business relocation.Footnote ¹³¹ Third, provinces have more power than American states to protect provincial enterprises from economic competition by setting up trade barriers against other provinces. These barriers have helped shield some economic interests from competitors in other provinces, moderating provincial officials’ incentives to compete to cut taxes and regulatory burdens.

Canada's Westminster-style federal and provincial parliamentary systems also make it easier (but still difficult) to build cooperation among the provincial and national governments. As leaders of their parties in parliament, the federal prime minister and provincial premiers can negotiate with more authority than American political executives. “Executive federalism” or “federal-provincial diplomacy”—combining federalism and cabinet government—has long been considered the defining characteristic of Canadian intergovernmental relations.Footnote ¹³² Cooperation in Canadian environmental regulation is more evident than in American environmental policy. The relatively small number of units (ten provinces and three sparsely populated territories) reduces the number of negotiating parties, also facilitating cooperation. Of course, better cooperation in itself does not predispose a political system to more stringent environmental protection.Footnote ¹³³

9. Conservation and the Fragmentation of Environmental Governance

The conservation movement in the second half of the nineteenth century exposed the vulnerability of American federalism to dramatically different environmental politics and divergent policies among the American states. The conservation movement challenged the dominant priority of using natural resources for short-term profit, such as increased use and pressure on game, water, and timber resources. Population growth and industrialization caused unprecedented depletion of timber, threats to water supplies, and pressure on stocks of game and fish. In his internationally bestselling book, George Perkins Marsh indicted the menacing lessons of the human destruction of nature. Authors like Henry David Thoreau and landscape artists such as Frederick Edwin Church and Thomas Cole recast nature as a romantic ideal. Professional, conservation, and sporting groups such as the American Forestry Association, the Sierra Club, and the Boone and Crockett Club advocated policies to conserve and to protect nature.Footnote ¹³⁴ Some businesses broke with others to advocate conservation, driven by concerns about pollution, natural resource depletion, and opportunities for tourism.

The impact of the conservation movement foreshadowed the unevenness of state environmental protection. States like California and New York were conservation pioneers. California farmers demanded that their state rein in hydraulic gold mining, a source of flooding and pollution that threatened them financially and personally. After a modest state statute failed to help, farmers went to federal court and won a far-reaching case that established rules on water pollution. California successfully sought a grant of federal land to protect the Yosemite Valley and Mariposa Grove (insufficient management resulted in the 1906 refederalization of the area as the centerpiece of Yosemite National Park).Footnote ¹³⁵ In the East, New York established the first continuous state park at Niagara Falls in 1885. Another coalition of sportspeople, conservationists, and New York commercial interests brought about the designation of Adirondack Forest Reserve in 1885 and the Adirondack State Park within that reserve in 1892.Footnote ¹³⁶

But while some states took the lead in conservation in this period, others fell behind these leaders and protected the use of their resources for profit. Wisconsin, for example, enacted a statute in 1878 creating a half-million-acre state park in the northern part of the state. However, Wisconsin never implemented this plan effectively, abolished the park designation in 1897, and authorized the sale of the land to lumber interests.Footnote ¹³⁷

Even the leaders in conservation pursued a uniquely American approach. While New York's efforts in Niagara Falls depended on enlisting private interests to manage the American side of Niagara Falls, Ontario's provincial government took a more direct ownership role in the Niagara River and in the electrical generating potential of the falls.Footnote ¹³⁸

10. How Deeply Rooted Institutions Affected Recent American Environmental Policy

Together, two long-established American institutions—exceptionally broad American private-property rights and an exceptionally competitive form of federalism—have exercised a powerful structuring presence in American environmental policy since the upsurge of environmental concern fifty years ago. Private property and federalism inconspicuously have shaped the unusual development of environmental support and opposition, reshaping environmental protection from a nearly bipartisan issue in the late 1960s into one of the most bitter cleavages separating Democrats and Republicans today.Footnote ¹³⁹

In the 1970s, Congress enacted very stringent national environmental standards in response to surging popular demands for environmental protection and frustration with the states.Footnote ¹⁴⁰ Efforts to leverage better voluntary state performance and interstate cooperation had failed by the late 1960s.Footnote ¹⁴¹ Federal legislators then conceded that there was no practical alternative to state administration of environmental laws, and they emphasized that that very stringent national standards were necessary to override states’ competitive incentives to overlook pollution.Footnote ¹⁴² Advocates of the Clean Air Act amendments of 1970 acknowledged that interstate competition compelled strong national limitations on pollution:

U.S. Representative Harley Staggers (D-WV), the floor manager of the bill, explained that “the Federal Government sets the standards, we tell the States what they must do and what standards they must meet.” When others questioned the strictness of these standards, Staggers responded that “this is a very strong bill, as strong as it could be made at the present time” and anticipated “more stringent laws and standards and requirements” in the future.Footnote ¹⁴⁴

These laws layered strict national standards atop long accustomed, deeply rooted state management of the privatized environment. State and local governments retained authority over their internal nonfederal landscape and the pollution that originated from it. The states created their own environmental protection agencies to administer these laws. Today, the states administer 90 percent of the EPA's major regulatory programs. The states have issued most environmental permits and undertake a large majority of all environmental enforcement actions.Footnote ¹⁴⁵

Some of the states, already environmental leaders before the 1970s, met or surpassed federal policymakers’ expectations. Strong public support for environmental protection can overcome opposition to environmental regulations in these states.Footnote ¹⁴⁶ California implemented statewide policies to deal with air pollution and other environmental problems much earlier than other states and is now a global leader in climate change policy.Footnote ¹⁴⁷ California has the economic strength and strong incentives to prioritize environmental protection and clean energy. California also has public support for environmental protection; half of Californians believe that climate change would harm them personally, a higher percentage than in any other state except Hawaii.Footnote ¹⁴⁸ A minority of other states have also acted on climate change. By 2020, fifteen states required greenhouse gas reductions.Footnote ¹⁴⁹ Ten states have carbon pricing programs that cap emissions but allow trading of pollution rights. Some of the states have formed regional blocs, such as the Regional Greenhouse Gas Initiative (RGGI), to limit carbon emissions.Footnote ¹⁵⁰

Once stringent regulations began to bite private interests, however, opponents began to mobilize to challenge, fragment, and slow these stringent environmental rules. Some state and local officials began to resist this environmental responsibility almost immediately after fully understanding the way powerful constituents would resent the actions necessary to put them into effect. For example, when even politically liberal Massachusetts developed its plan for implementing the Clean Air Act, the state legislature enacted a bill put forward by industry lobbyists that softened the plan. Acutely aware of interstate competition, North Carolina's legislature did the same after one state legislative house passed a bill to prevent state environmental laws from being more stringent than those of any other state.Footnote ¹⁵¹ “Political pressure and conflict” in this case flowed “to wherever administrative discretion exists in the regulatory process,” as political scientist Walter Rosenbaum observed.Footnote ¹⁵²

Those interests accustomed to insignificant interference with their control of the environment mobilized against these initiatives and enjoyed success in a number of states.Footnote ¹⁵³ Opposition to stringent environmental rules eventually drew together ideological conservatives, powerful industries (including chemicals, oil, coal, electrical utilities, and construction), developers, small businesses, farmers, and ranchers. Individual corporations upgraded their lobbying efforts. The U.S. Chamber of Commerce, the National Federation of Independent Business, the American Farm Bureau Federation, and trade associations struck back at all levels of government. Well-funded conservative organizations emerged to challenge the premises of regulation, including the Heritage Foundation, the Cato Institute, Citizens for a Sound Economy (precursor to Americans for Prosperity), the American Legislative Exchange Council (ALEC), the State Policy Network, the Manhattan Institute, and the Heartland Institute.Footnote ¹⁵⁴

By empowering regional opposition to national control of economic assets, the U.S. Constitution provides opponents of stringent environmental regulation considerable power in regions of states with valuable mineral and fossil fuel resources (such as Wyoming, Oklahoma, and West Virginia), as well as those with agricultural, grazing, and forest resources in the South and the Plains. States have a strong reason to protect existing rules for these activities because these resources benefit state government through taxes, royalties, and economic prosperity. In all, thirty-four state governments materially benefit from severance taxes or fees on the extraction of oil and natural gas. As many as twelve million Americans receive royalties from the extraction of resources from private property.Footnote ¹⁵⁵

Shaped by deeply embedded institutions, environmental protection has become regionally polarized. Regions of states with a predominant stake in fossil fuels or that historically oppose federal regulation—with the support of conservative organizations such as ALEC and Americans for Prosperity—became geographical warriors defying environmental rules.Footnote ¹⁵⁶ Conservative Republican state attorneys general, such as Scott Pruitt of Oklahoma, worked together to sue the federal government over air pollution, water pollution, and endangered species, using “states’ rights” to block federal environmental laws or enforcement within their borders.

American climate change policy became deeply polarized as opponents of environmental regulation helped make these states a bastion of resistance to restrictions on fossil fuels. Barry Rabe, a leading environmental policy scholar, sees “a tale of two climate nations,” a division that became wider and wider.Footnote ¹⁵⁷ Shifts in environmental policy polarization in the presidency and Congress reflect shifts in the state-based coalition of each political party.Footnote ¹⁵⁸ Opponents took advantage of familiar tactics to slow or kill proposals in the legislative process, or to outspend proponents in initiative elections.

The Obama administration proposed strict federal regulations on electric power plant emissions with the Clean Power Plan, but by early 2016, it had generated more legal activity than any environmental initiative in American history. Twenty-nine states and state agencies had joined these lawsuits; most of these states benefited from oil and gas severance taxes, were almost entirely led by Republican state officials, and were joined by a host of energy and other business groups.Footnote ¹⁵⁹ All but one of these twenty-nine states (New Jersey) voted for Republican candidate Donald Trump in the 2016 presidential election. Republican U.S. Senate Majority Leader Senator Mitch McConnell (R-KY), publicly urged states to defy this U.S. government regulation.Footnote ¹⁶⁰ But state officials on the other side of the partisan divide used federalism just as vigorously. Eighteen states and Washington, DC, mostly led by Democratic officials, filed suit in defense of the Clean Power Plan. Several environmental interest groups and cities joined them.Footnote ¹⁶¹

Differences between Canada and the United States show why deeply rooted political institutions are necessary for understanding the shift in American environmental policy. Political pressures in favor of environmental regulation have faced lower hurdles in Canadian federalism. Canadian provinces have a larger set of policy tools, and it is easier to negotiate a measure of provincial and federal government cooperation. Canada sets narrower limits on private control of land. Canadian provinces exercise more control over natural resources on and beneath the soil. Canadian federalism has reduced interprovincial economic competition, weakening the opposition to environmental protection and strengthening interprovincial cooperation.

These institutional factors give those who control natural resources in the United States a federal system they can more easily manipulate for their advantage. The polarization of public opinion on climate change itself does not drive the divergence in action on climate change. In 2016, the Yale Program on Climate Change Communication reported that U.S. state and Canadian provincial public opinion varied on very similar statements about whether humans are mostly the cause of global warming. The national average of Canadians agreeing with this statement, 43 percent, was considerably lower than the U.S. average of 53 percent, yet U.S. policy lags behind Canadian policy. Comparing the two most prominent oil-producing jurisdictions in each country, 53 percent agreed with the statement in Texas but only 28 percent agreed in Alberta. California was the most supportive American state (59 percent), while Quebec, with a quarter of the Canadian population, was nearly as supportive as California (53 percent).Footnote ¹⁶² About half of Americans who identify with the Republican Party support limiting greenhouse gas emissions, while about three-quarters of Canadian Conservatives support such limits.Footnote ¹⁶³

Institutions are necessary to explain why provinces controlled by Canada's major right-of-center party, the Conservative Party, commit to action to reduce greenhouse gases, while the U.S. Republicans officially deny the existence of the problem.Footnote ¹⁶⁴ The four most populous provinces—Ontario, Quebec, British Columbia, and Alberta, with more than 80 percent of the Canadian population—all initiated a carbon tax or cap-and-trade system before 2016, when Canada ratified the Paris Climate Agreement. Alberta elected a New Democratic Party majority in the provincial legislature in 2015, and it enacted a carbon tax. The Canadian Liberal government negotiated an implementation plan with provincial leaders, and together these leaders issued a Pan-Canadian Framework on Clean Growth and Climate Change in 2016 (only Saskatchewan declined to sign).Footnote ¹⁶⁵ This framework agreement provided that provinces would implement a carbon tax, or that a federal carbon tax would be imposed if they did not (some provinces have challenged the constitutionality of the carbon tax in court).Footnote ¹⁶⁶

Changes in partisan control of government have brought about striking shifts in environmental and climate policy in Canada as well as the United States.Footnote ¹⁶⁷ But the geographical and ideological base of the American Republican Party is much more strongly opposed to climate change policy than the Canadian Conservative Party. When Conservatives won back power in Alberta and repealed the provincial carbon tax, they promised to impose regulations on the largest emitters in the province. In the run-up to the 2019 Canadian national elections, the Conservatives acknowledged the fact of human-caused climate change, affirmed a commitment to meeting targets of the Paris Agreement and listed steps they would take to meet those targets.Footnote ¹⁶⁸ In contrast, the 2016 U.S. Republican Party's national platform clearly stated: “We reject the agendas of both the Kyoto Protocol and the Paris Agreement” and the “United Nations’ Intergovernmental Panel on Climate Change is a political mechanism, not an unbiased scientific institution.”Footnote ¹⁶⁹

Unlike some Canadian provinces, no American state had enacted a carbon tax by 2019. Efforts to enact a carbon tax have been stymied by state legislatures, proponents’ divisions, and a well-funded opposition by fossil fuel enterprises. Washington state proponents fashioned a measure based on neighboring British Columbia's carbon tax, but it was defeated in an initiative election. In 2018, national fossil fuel interests helped defeat another Washington state carbon tax initiative, targeting a $32 million campaign on the voters in this one state.Footnote ¹⁷⁰

The deeply rooted institutions of broad private-property rights and competitive federalism are necessary to explain the American shift from environmental leader to laggard, but it is important to remember that these structuring factors work in tandem with other more conspicuous factors, most notably political polarization. The large size of the American population and economy greatly complicates political action in the United States. Most environmental problems can be contained within one province in Canada, which has only one major metropolitan area that spans provincial boundaries; in the United States, many such metropolitan areas have intensified interstate conflict and competition. Fewer subnational governments (ten provinces and three territories) simplifies Canadian harmonization, though Quebec, a province with a distinct cultural identity, makes cooperation more difficult. The parliamentary systems at the provincial and federal level focus policy responsibility more clearly than the American separation of powers, although parliamentary government does not preclude “passing the buck” from one level of government to another. Parliamentary government allows for moments of larger-scale policy change in more conservative provinces. For example, the Social Democratic Party won power in Alberta in 2015 and implemented a carbon tax (repealed by its Conservative successor elected in 2019).Footnote ¹⁷¹