Federalism

 In press:  2001.Assoc. Women in Science Magazine 30 (1)

As we approach the 250th anniversary of the birth of James Madison, father of the U.S. Constitution, it is fitting to discuss federalism in relation to science, policy, and resource management in the 21st Century.  Madison was a brilliant man of ideas and ideals, and federalism is sound in principle.  However, it can be a messy construct in practice, and particularly difficult to balance with state's rights.  This is especially apparent in applications to energy policy and sustainable resource management.  Issues of federalism and state's rights are central to the ability of science to inform environmental decisions at the regional and national level.

The Presidential election of 2000 served notice of the weak fabric woven by federalism and that issues of state's rights are not yet resolved.  At the core of recurring arguments was the practical intent of the framers of the Constitution and subsequent amendments.  No one disputes that the Constitution is an extraordinary document. Some are aware of its evolving nature, but few talk of its limitations.  One might ask if the Constitution, the courts, or Congress have remained sufficiently current.  As events played out, particularly in Florida, they touched all levels, from local to federal, and all branches of government, especially the judiciary. Arguments centered on legal interpretations of discretion, safe harbor, and equal protection.  A series of rulings, including the rather unusual per cureum decision by an apparently deeply divided U.S. Supreme Court, focused on legal semantics rather than evidence. I had a strange sense that the system was looking backward rather than ahead to foresee difficulties – reactive rather than proactive.  This is not an effective approach in any arena, from politics to resource management.

Despite the various analyses of irregular voting patterns in Palm Beach County and in districts with antiquated voting machines, I saw no sign that statistical approaches had much legal significance.  Determining the "intent of voters" is frustrating, especially when 19th century technology is used to cast and count ballots.  Fortunately, we have avoided a constitutional crisis and will perhaps be stimulated to implement consistent regulations, polling times, ballots, and counting technology for future elections.  None of these changes will rid the voting process of uncertainty, but they may reduce it; uncertainty is a most difficult concept in our system of democracy, and one that seems to make the public and the courts uncomfortable.

If it is obvious that we might benefit from consistency, why are unreliable practices continued?  In large part, the answer lies with state's rights in elections and other matters.  How does this relate to science and resource management?  Let me give some timely examples of challenges in managing resources that involve both the federal government and a single or multiple states.

New U.S. Bureau of Census numbers have been released.  Based on their procedures, which were subject to rather intense controversy, there are now over 281 million Americans, a 13% increase since 1990.  The greatest percent gain was in Nevada, a whopping 66.3%.  With some of the most arid states in the country – Arizona (+40%), Nevada, Utah, Texas and California – experiencing rapid growth, one might expect conflict over allocation of scarce supplies of water. The new federal administration can help states resolve these dilemmas by conducting an analysis of economic implications of renewable resource management, beginning with water supply.

California remained the most populous state, up 13.8% since 1990.  If we simply concentrate on electric power, recent news stories, which began to develop in summer 2000, would suggest an impending state and regional crisis. California has run out of electric energy, or to say it another way, the state does not have enough energy to meet present demand.   How could this happen, and what are the implications for sustainable production of food and fiber in California and beyond?

The answers are many and complex.  First, no single piece of federal legislation or inaction by the federal government caused the problem.  The federal government cannot be blamed for the crisis, although federalism is at issue (all states must comply with federal regulations, including the Clean Air Act; California's own provisions are more restrictive).  Instead, California did not plan effectively for its growth.  California did not build additional power generating capacity, expand the power grid to eliminate bottlenecks or embark on a comprehensive conservation program. Moreover, the state deregulated electric utilities (believing that deregulation would result in lower rates), apparently managing that process rather badly.  These policy decisions about the energy marketplace were based on a series of diverse legal and statutory principles.

California is constructing new facilities, considering re-regulation, and will need to expand the power grid, but the near term crisis is real.  The federal and state government are negotiating to solve the short-term supply/price problem.  To make matters more complicated, the price of electricity and natural gas may vary dramatically within California and the price of natural gas increases from Arizona to California.  Further, if California requires more power, what of its agreements to deliver power to other western states when they need it most? Who will arbitrate such disputes about access to electric power? 

You might ask - why didn't the federal government intervene sooner in the California's energy crisis?  First, one has to consider where the authority lies. Typically, federal and state governments regulate utilities, with retail prices set by the state.  The authority under which Congress could contemplate other action is unclear (national security, perhaps?)  For the most part, the federal government has allowed the states to manage their own natural resources, except, to some extent, on federal lands.  Single states, for example, can block a particular plan submitted by the National Marine Fisheries Service even if four or five other states might agree.  Our concept of federalism has never evolved sufficiently to handle regional issues that involve a number of states or deal with sustainable resources. Given the intensity of the electric power crisis in California, its population size, and the implications for other western states, perhaps this can be a test case.  Obtaining cooperation from a reticent state is difficult if not impossible.  In this case, all parties will have to avoid constructing a solution that is in the best interest of any single state, particularly California.  For members of Congress to look for a federal solution is interesting in itself.

While some might seek federal solutions to resource management, we may also have to consider that the federal government is not well-organized to address certain problems.  Its own agencies may have multiple and conflicting charges in management, policy and research.  Not only might various branches of a single agency have little contact with each other, but also, and perhaps more importantly, communication between agencies is limited.  Agencies have growing responsibilities through piecemeal legislative action over time, which are defended by turf battles during appropriation hearings. New program initiatives become ways to fund existing programs through re-packaging.  Little consideration has been given to the best ways to organize and manage for sustainable resource management overall.

As noted above, another consideration in bringing sound science into policy is the difficulty of addressing scientific uncertainty within our current legal framework.  Significant, recent advances have related to what constitutes evidence and the basis for determining whether an expert is credible (see Justice Stephen Breyer (2000) and others in Issues in Science and Technology, vol. 16, p. 49-82). However, we require concentrated, collaborative effort among science and the three branches of the federal government to elaborate a clear decision-making process for resource management.  Greed or short-sightedness by a single state could clearly jeopardize long-term sustainable use. One might look to the National Research Council for leadership and guidance in developing better frameworks for decision-making. 

All too often in the courtroom, the unfortunate default decision might be that the science isn't adequate and definitive, even though the cost of obtaining "certain" answers might be enormous.  No amount of money would yield definitive solutions to the Alaska Ground Fishery or exploration for oil in the Alaska National Wildlife Reserve.  And yet, as we consider the major coastal fisheries in the U.S., the collapse of the Georges Bank fishery, management of federal forest lands and forest fires, and a range of other topics in sustainable resource management, we must conclude that our decision-making processes are inadequate, and continue to educate the government and public about the methods of science.  Sometimes we may not have all the data to be more confident in a theory or discard an alternative.  Does this necessitate inaction?

Some of the profound insights of the Founding Fathers should not be lost: separation of religion from the affairs of state, the individual fairness and objectivity required in the execution of office, or the grand but difficult balance required to coordinate federal and state functions with common sense and good judgment.  The dream of Madison can be achieved - understanding our natural world and our social systems in ways that sustain us all.  But sustainable resource management will require substantial efforts in developing new methods and approaches for science and government. If only we could call on Madison to help us develop an update of his wonderful plan.