Delegation and Dysfunction

Much of the scholarly literature lauds cooperative federalism, in which states regulate to achieve federal standards, as an innovative federal-state partnership. But delegation of authority also has grave dangers caused by principal-agent problems, among others. The largely toothless nondelegation doctrine captures these challenges, but the bidirectional difficulties of principals adequately monitoring agencies, and vice versa, extend far beyond Congress’s delegation of duties to agencies. Congress or federal agencies—the principals who craft and oversee cooperative federalism under many existing statutes— sometimes delegate authority knowing that subfederal actors will not fully implement a statute. Even delegation for more noble purposes can cause regulatory failure when federal actors struggle or refuse to adequately oversee subfederal agents or perform their own duties. Further, subfederal agents often lack the tools needed to hold federal agencies to task. The recent case of Flint, Michigan, where tainted drinking water permanently harmed thousands of children due to flagrant violations of a cooperative federalism statute, poignantly highlights this. But delegation is often necessary and can be beneficial, particularly where subfederal agents are more motivated to implement basic risk-preventing regulatory requirements than their federal principal is. Broad-brush cooperative federalism theory tends to ignore the regulatory design of delegation and its associated pathologies and benefits.

This Article cuts to the core of the dysfunction of delegated governance regimes within cooperative federalism. It argues that given the federal statutes in place—with requirements that even recalcitrant federal and state agencies must follow—the design and implementation of cooperative federalism must change. Even if the original purpose of delegation was an ignoble one, the baseline requirements of federal statutes may not and should not be ignored.

The Article builds a theoretical framework for understanding and normatively assessing the shared features of numerous forms of delegation under cooperative federalism, and it applies this framework to environmental and energy law case studies. It argues that necessary regulatory design changes include, among others, consistent case-by-case and long-term monitoring of both principals’ (federal agencies) and agents’ (subfederal governments’) behavior and expanded use of judicial review and other mechanisms for overseeing all actors within delegated governance regimes.