State and local governments across the United States have filed suit in state courts against major fossil fuel companies, seeking compensation for climate-related damage to their infrastructure, public resources, and communities. These suits allege that the defendant companies knew for decades that their products were driving catastrophic climate change, concealed that knowledge, and ran sophisticated deception campaigns to protect their profits. The companies and their supporters contend that the Clean Air Act and the Constitution foreclose the claims. The Supreme Court's grant of certiorari in Suncor Energy, Inc. v. Board of County Commissioners of Boulder County will require the Court to decide whether these preemption arguments succeed. This essay argues that they clearly do not. The Clean Air Act's savings clauses affirmatively preserve state remedies, and American Electric Power Co. v. Connecticut expressly left the state-law preemption question open; the presumption against preemption in this area of traditional state authority applies with full force and has not been rebutted. Neither the Act's text, nor its occupation of any field, nor any conflict with its objectives forecloses state common law claims for climate-related harm—from nuisance, negligence, and trespass to fraud and concealment. The claim that the Constitution's allocation of foreign affairs authority to the federal government preempts such suits misreads relevant precedent, has no limiting principle, and has been rejected by the courts that have considered it. And the fraud and deception allegations at the heart of many of these suits are further still from any basis for preemption: they address conduct the Clean Air Act does not regulate and that no federal statute has ever been held to preempt. The essay also advances several arguments that the parties' briefs do not reach. First, damages and locally confined relief lack the extraterritorial reach that alone could justify centralizing authority over emissions. Second, the Trump Administration's 2026 rescission of the greenhouse gas endangerment finding removes the regulatory predicate on which the "speaks directly" rationale, and thus the preemption theory, depends. Third, after Loper Bright, courts owe no deference to any agency claim that federal inaction preempts state law. Finally, preserving overlapping state and federal authority provides significant governance benefits. Communities that have endured the costs of climate harm—caused by corporations that allegedly knew the consequences and hid them—are entitled to their day in court. The Constitution simply does not shield polluters from paying for the harms they cause.

Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia. These disruptions raise existential threats not only to ecosystems but to Native communities. Yet no analysis has carefully explored how climate change is affecting the governance of tribal ecological lands. This Article, by examining the current legal adaptive capacity to manage the effects of ecological change on tribal lands, closes this scholarly and policy gap. This Article first considers interventions to date, finding them to be lacking in even assessing-let alone addressing-climate risks to tribal ecosystem governance. It then carefully explores how climate change raises distinctive risks and advantages to tribal governance as compared to federal and state approaches. Relying in part on a review of publicly available tribal plans, this Article details how tribal adaptation planning to date has fared. Focusing on climate change and ecological adaptation, this Article delves into the substantive, procedural, and structural aspects of tribal governance. Substantively, tribal governance often tends to be considerably less wedded to conservation goals and strategies that rely on "natural" preservation, and many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with adaptation. Procedurally, like other authorities, many tribal governments could better integrate adaptive management and meaningful public participation into adaptation processes, yet some tribes serve as exemplars for doing so (as well as for integrating traditional ecological knowledge with Western science). Structurally, tribal ecological land governance should not only continue to tap the advantages of decentralized tribal authority but also complement it through more robust (1) federal roles in funding and information dissemination and (2) intergovernmental coordination, assuming other governments will respect tribal sovereignty. This Article concludes by identifying areas where tribal management practices might serve as valuable exemplars for adaptation governance more generally, as well as areas in which additional work would be helpful.

ABSTRACT Climate change has induced an ecological crisis necessitating reconsideration of how the law should manage human interactions with ecological systems. In most Western legal regimes, conservation policy has principally sought to advance historical or natural preservation or sustained yield objectives, while many laws governing biotechnologies focus on minimising exposure to ‘natural’ systems. Meanwhile, Western public processes are largely built on a legal framework that assumes comprehensive rationality at the front end of decision-making. Lastly, prevailing public conservation governance is fragmented, save the limited attempts to consolidate or coordinate decentralised, independent, and/or overlapping authority. The increasingly convulsive effects of climate change and developments in biotechnology bring to stark relief the limitations of prevailing Western public conservation goals, processes, and institutional design. First, promoting biodiversity may require fundamental changes in management to focus on increasing ecological health and other values than consumption, historical fidelity, and nonintervention. Second, integration of adaptive and inclusive processes is imperative for promoting both effective management strategies and learning in the face of unprecedented change. Third, policymakers must appreciate the tradeoffs of allocating authority across the array of institutional structures, and tailor not only the scale of interventions but also the extent of overlap and coordination of authority.

Requirements for the protection or restriction of species are based on regulatory classifications such as “native” or “invasive,” which become anachronistic when climate change drives species outside of their historical geographic range. Furthermore, such regulatory classifications are inconsistent across the patchwork of land ownership that species must traverse as they move between jurisdictions or when transported by humans, which obstructs effective regional management. We surveyed the U.S. laws and regulations relevant to species movement and found that the immigration of species to new jurisdictions makes paradoxical existing regulatory language that sets the categories of species deserving protection or removal. Climate change is universal and progressing rapidly, which provides a shrinking window to reconcile regulatory language originally developed for a static environment.

The speed and uncertainty of environmental change in the Anthropocene challenge the capacity of coevolving social–ecological–technological systems (SETs) to adapt or transform to these changes. Formal government and legal structures further constrain the adaptive capacity of our SETs. However, new, self-organized forms of adaptive governance are emerging at multiple scales in natural resource-based SETs. Adaptive governance involves the private and public sectors as well as formal and informal institutions, self-organized to fill governance gaps in the traditional roles of states. While new governance forms are emerging, they are not yet doing so rapidly enough to match the pace of environmental change. Furthermore, they do not yet possess the legitimacy or capacity needed to address disparities between the winners and losers from change. These emergent forms of adaptive governance appear to be particularly effective in managing complexity. We explore governance and SETs as coevolving complex systems, focusing on legal systems to understand the potential pathways and obstacles to equitable adaptation. We explore how governments may facilitate the emergence of adaptive governance and promote legitimacy in both the process of governance despite the involvement of nonstate actors, and its adherence to democratic values of equity and justice. To manage the contextual nature of the results of change in complex systems, we propose the establishment of long-term study initiatives for the coproduction of knowledge, to accelerate learning and synergize interactions between science and governance and to foster public science and epistemic communities dedicated to navigating transitions to more just, sustainable, and resilient futures.

The Trump Administration’s response to the COVID-19 pandemic is a stark reminder that poorly designed government can be a matter of life and death. This article explains how the Administration’s careless and delayed response to the crisis was made immeasurably worse by its confused and confusing reallocation of authority to perform or supervise tasks essential to reducing the virus’s ravages.After exploring the rationale for and impact of prior federal reorganizations responding to public health crises, the article shows how a combination of unnecessary and unhelpful overlapping authority and a thoughtless mix of centralized and decentralized authority contributed to the Trump Administration’s slow and ineffective effort to stem the virus’s tide. Furthermore, the Administration’s earlier dismantling of the structure built in the wake of prior outbreaks disabled a mechanism crucial to any federal response to public health threats—its ability to coordinate the efforts of public and private actions to effectively combat the crisis.The article identifies numerous valuable lessons about government organization from the COVID-19 experience that should guide policymakers’ deliberations in the likely event that they embark upon an effort to address the mistakes plaguing the Trump Administration’s dismal response. More generally, it uses the government’s response to COVID-19 to explore a number of insights about how to better think about and configure government institutions to prepare for and manage complex social problems like a pandemic.

In recent years, regulation scholars and policymakers have increasingly turned their attention to the role of inter-governmental organizational design in effective governance. The existing literature on regulatory design has provided important insights into the advantages and disadvantages of alternative structural options. This article synthesizes and builds on that literature by describing a novel framework for characterizing, analyzing, and structuring authority across public institutions. Drawing on examples from a range of jurisdictions, it highlights the value of this framework in identifying the values tradeoffs that should drive policymakers' decisions to choose among competing structural alternatives. The framework is founded on two important points. First, inter-governmental allocations of authority can be structured along three different dimensions. Failing to appreciate the existence of, and differences among, these dimensions can prompt misassessments of the reasons for existing regulatory failures and selection of structural allocations that do not suit the problems intended to be addressed. Second, allocations of authority can, and in many cases should, vary for disparate governmental functions. Differential functional allocations of authority can minimize obstacles to needed structural reforms and tailor inter-governmental relations in ways that best promote chosen regulatory values, such as efficiency, effectiveness, and accountability, as well as how allocational choices may and perhaps should vary depending on the governmental function being performed. Finally, the article suggests how future regulation and governance scholarship can harness this emerging framework to help build a body of empirical evidence upon which policymakers can draw in future regulatory design endeavors.

To argue that the current extinction event could be averted if people just cared more and were willing to make more sacrifices is not wrong, exactly; still, it misses the point. It doesn't much matter whether people care or don't care. What matters is that people change the world.

Using the federal food safety regulatory laws as examples, this chapter explores the significance of governmental function in understanding and prescribing centralized and decentralized authority. It begins by examining how recurrent criticisms of federal food safety regulation for excessive decentralization have routinely failed to consider whether the optimal degree of centralization should vary by regulatory function. It then argues that functional differentiation can provide important analytical benefits, including (1) more accurate characterizations of existing regulatory programs, (2) mitigation of practical obstacles to desirable restructuring, (3) clarification of the tradeoffs of centralized or decentralized regulatory structures, and (4) illumination of alternative options for situating authority at different points on the centralization dimension. Finally, it contends that functional analysis can help policymakers improve the net benefits of choices along the centralization/decentralization dimension by identifying appropriate organizational choices along the other two dimensions for allocating authority.

One of the greatest strengths of the National Environmental Policy Act has been its requirement that federal agencies opening up to the public decisionmaking processes concerning proposed actions that may adversely affect the environment. By mandating not only information collection and analysis but also opportunities for public input and government coordination, NEPA both depends on and cultivates democracy and sound government. For fifty years, NEPA has increased the production and consideration of information on the environmental impacts of government action, while also fostering public participation and government accountability on actions being contemplated by federal agencies. NEPA’s contributions to informed and democratic governance, however, are now at risk. In early 2020, the Council on Environmental Quality (CEQ) issued proposed regulations that would overhaul, and fundamentally enfeeble, NEPA and its existing regulations. The proposed revisions would upend decades of NEPA law, precedent, and practice. This Essay argues that CEQ’s proposal, and the conspicuous lack of evidence supporting it, are antithetical to NEPA’s core goals for federal decisionmaking — the considered generation by government of key information; public engagement in government decisions; and the protection and conservation of scarce natural resources. Among other things, the proposal would remove longstanding judicial checks on executive power, despite the absence of any authority to do so. If successful, these and other changes contemplated by CEQ would radically undercut NEPA’s innovative and successful contributions to democratic governance.

This chapter explains how legislative changes to, and the broader commentary on, US derivatives regulation illustrate the value of parsing the overlap/distinct and centralization/decentralization dimensions in assessing the tradeoffs of regulatory allocations. The Securities and Exchange Commission and the Commodity Futures Trading Commission have been tasked with decentralized authority over securities and futures, respectively. Over time, their jurisdictions have increasingly overlapped as the futures and securities markets converged. Reorganization proposals and legislation to correct perceived problems with the overlapping, decentralized regulatory regime (such as Title VII of the Dodd-Frank Act) have usually failed to parse the various tradeoffs between overlap and distinct or between centralized and decentralized authority. By limiting their analysis, policymakers and observers of derivatives regulation may have misdiagnosed problems with the existing allocation or missed potential opportunities to craft different regulatory configurations that might have better accommodated policy tradeoffs or been more politically viable.

This chapter explores the adverse consequences of conflating the overlap/distinct and coordination/independence dimensions of regulatory authority by focusing on Congress's restructuring of federal banking regulation after the crash of 2008 in the Dodd-Frank Act in 2010. Legislators and financial experts concluded that excessive overlap before 2010 in prudential regulatory authority created three problems: (1) wasteful duplication of effort, (2) inconsistent and conflicting regulatory treatment of financial institutions, and (3) regulatory arbitrage that prompted a race to the bottom among prudential regulators, which increased the risk of systemic failures. Congress addressed the first two problems by requiring greater regulatory coordination, but the chapter contends that the creation of more distinct authority, either substantively or functionally, may have been preferable in light of the weak form of coordination mandated by Dodd-Frank. Dodd-Frank's response to the third problem was misguided for a different reason. Banking regulation experts and policymakers attributed arbitrage to excessive overlap, when in fact it arises from distinct authority among banking regulators. As a result, Congress failed to consider an option that might have been superior to enhanced but non-hierarchical coordination-the creation of more overlap to prevent financial institutions from choosing exclusive regulation by the weakest prudential regulator.

This Article assesses the regressive and otherwise harmful effects of Executive Order 13807 — the Trump Administration’s core initiative to alter federal infrastructure development — on sound planning, the environment, and democratic decision making. The primary components of this initiative include: (1) a Cross-Agency Priority policy, which requires agencies to complete environmental reviews and provide authorization decisions within an average of two years after publishing a notice of intent (NOI) to prepare an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA); (2) a One Federal Decision policy, which, among other things, requires federal agencies to publish all authorization decisions for major infrastructure projects in a single document; and (3) significant increases in the role of the Office of Management and Budget (OMB) and lead construction agencies throughout infrastructure permitting and environmental review. Taken together, these aggressive changes seek to drastically cut the time and resources spent planning for and assessing major infrastructure projects — without any credible evidence justifying such changes. Unfortunately, the Trump Administration pays little, if any, attention to how these changes impact the effectiveness — or even the cost-effectiveness — of environmental review and permitting decisions. They also offer no support for the reallocation of authority. In fact, this initiative purports to make review cheaper and faster without providing the resources agencies say they need to be more efficient and effective. Agencies are instead simply measured by how quickly they approve projects through OMB performance assessments that entirely disregard the efficacy of agency review. To make matters worse, the Trump Administration disregards the lessons of past infrastructure development and recent progress toward regulatory streamlining. EO 13807 appears calculated both to hasten review processes and to reduce the quality of that review. As such, the Trump Administration’s initiative, which it is now attempting to codify in proposed regulations modifying NEPA, are not only likely to cause unnecessary environmental harm, but also reduce the quality of U.S. infrastructure. The Article concludes by offering other reasonably available measures that would much more effectively improve the efficiency and quality of government planning, promote public health and conservation, and advance sorely needed infrastructure development.

Reorganizing Government seeks to transform how policymakers and scholars understand relationships between government institutions, and offers a pioneering model for constructing and assessing government authority. Regulation is frequently less successful than it could be. This is at least partly because the relationships among regulatory institutions are poorly understood and regulatory structures are routinely poorly designed. The book advances a framework for assessing how governmental authority may be structured along three dimensions-centralization, overlap, and coordination-and demonstrates how differentiating among these dimensions and among particular governmental functions (e.g., standard setting, enforcement) better illuminates the tradeoffs of organizational alternatives. It illustrates these neglected dimensional and functional aspects of interjurisdictional relations through six in-depth explorations involving securities and banking regulation, food safety, environmental protection, and terrorism prevention. In each case study, the authors explore how differentiating among dimensions, and among particular governmental functions, better illuminates the advantages and disadvantages of available structural options. (Re)Organizing Government thus offers a way for officials and scholars to evaluate both adopted and contemplated allocations of authority and to structure intergovernmental authority more effectively. It uses the lens of climate change, an emerging and vital global policy challenge, to illustrate the practical value of applying the book's novel analytical framework to future reorganization efforts. The book concludes by proposing an "adaptive governance" infrastructure that provides a way for policymakers to embed the creation, evaluation, and adjustment of the organization of regulatory institutions into the democratic process itself.

This chapter uses climate change governance to illustrate how policymakers can engage in an integrated analysis of the advantages and disadvantages of defining agency jurisdiction along each of the dimensions for different governmental functions. In particular, the chapter assesses and considers alternatives to the interjurisdictional frameworks that have begun to develop, with a three-part focus on climate change adaptation, mitigation, and geoengineering activities. Though undoubtedly contextual within these three general categories of emerging governance, each presents challenges and implies different tradeoffs that are likely to be more consistent with particular types of allocations. The chapter extrapolates from the insights from the book's earlier case studies and draws plausible inferences based on justifications for particular allocations to propose configurations for these three emerging regulatory regimes. Finally, the chapter explains how climate change governance illustrates the merit of integrating into institutional design strategies that promote learning about the efficacy of adopted allocations.

This chapter uses legislative changes in the structure of federal intelligence information management in the wake of 9/11 to explore problems that arise from the failure to distinguish the centralization/decentralization and coordination/independence dimensions of regulatory authority. According to the 9/11 Commission, created to investigate the intelligence community's inability to thwart the terrorist attacks, the failure of agencies such as the FBI and the CIA to share information with each other, attributable largely to a lack of coordinated information management, was a major contributing factor. The chapter contends that Congress and the 9/11 Commission's report-on which the former relied in 2004 in enacting the most comprehensive structural reform of the intelligence community in fifty years-erred by seeking to address coordination failures by centralizing aspects of the intelligence community through the creation of the Office of the Director of National Intelligence. In addition, neither Congress nor the Commission distinguished clearly among three different information management functions-generation, dissemination, and analysis-in assessing past intelligence failures or selecting reorganizational responses to them. The chapter then uses the intelligence information management context to explore the policy tradeoffs of situating authority along both the centralization/decentralization and coordination/independence dimensions for each information management function.