Federal Regional Offices and Functional Federalism, by Dave Owen

by Guest Blogger — Monday, Feb. 8, 2016

In a previous post, I described some recent research on the geographic decentralization of staff and authority within federal government agencies. A key conclusion of that research, and of yesterday’s post, is that the realities of federal governance call into question some key pillars of the conventional wisdom about American federalism. This post addresses a second, and related, conclusion: if one hopes to develop an account explaining how American federalism succeeds in promoting innovative governance, federal regional offices ought to be part of the story.

Traditional federalism rhetoric identifies state and local governments as leaders in innovation. And in my research, I found evidence consistent with that view. Even though my research focus was a federal agency, I often heard examples of governmental innovations involving states. To provide one example, the state of North Carolina played a key role in developing new regulatory techniques to compensate for the impacts of real estate development upon small streams, and those techniques now are spreading across the nation.

But North Carolina and its fellow states did not do this alone, and therein lies an important lesson. Sub-national offices within the U.S. Army Corps of Engineers helped develop, and disseminate, the new regulatory techniques, and thus played key roles in turning a geographically limited experiment into a broader set of reforms. And that was not an isolated example. Through my research, I heard many examples of regional Corps offices working closely with state agencies to develop new regulatory techniques, and to tailor existing ones to local needs.

In particular, I found that regional federal offices were partnering with states in three key ways: 

They work with states to tailor national regulatory programs to local needs. The Army Corps Engineers regulates primarily through writing permits, and its permits routinely incorporate terms and requirements that come from partner agencies in the states. As one Army Corps staff member explained to me, “When we develop a regional permit for any specific activity . . . [w]e work those out specifically with the state agencies and the federal agencies involved and [ask] ‘ok, if we’re going to develop this permit, are there any special conditions you’d like to see on it,’ and hammer those out just to make it easier to issue that permit in a way that the state’s good with it.” Another Army Corps staff member put the point more broadly. “One . . . strength of the program,’ he said, “. . .is that we can tailor the program, within sideboards, so that it fits as well as it could possibly be with the individual state program.” 

They partner with states to develop new ideas. For example, across the nation, Army Corps and state offices have worked together to develop guidelines for a practice known as “compensatory mitigation,” which means compensating for impacts to aquatic resources in one location by protecting, enhancing, creating, or restoring aquatic resources somewhere else. Compensatory mitigation raises a variety of technical and policy issues, some of which are location-specific, and these partnerships let the Army Corps and state agencies develop solutions that are tailored to local needs.

They help disseminate ideas. For experimentalism to fulfill its promise, good ideas need to spread. Federal regional offices can help in that process. Because communication among federal offices is routine—higher-level staff within the Corps often talk to their counterparts in other parts of the country, and lower-level employees have similar contacts, though not as often—these federal offices can effectively serve as the vectors that convey good ideas, including good state ideas, from one part of the country to another.

These examples underscore a broader point. Much recent federalism scholarship has focused on the positive benefits that occur when federal and state governments share overlapping jurisdiction and must work together (see, e.g., here). Some of that scholarship has also focused on the creative potential that arises from conflict within these joint administrative schemes. These articles, and many others like them, are full of intriguing insights and ideas. But missing from that scholarship, so far, has been an account of some mundane but important details: just where, and how, will those interactions actually occur? Both cooperation and contestation tend to be more constructive when people can actually talk face-to-face, and regional federal offices, it turns out, can make that kind of communication possible. And by facilitating that communication, they can help a federalist system succeed.

Dave Owen is a professor at the University of California, Hastings College of Law, where he teaches courses in environmental, natural resources, and administrative law.

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