Federalizing energy? Agenda change and the politics of fracking

This paper focuses on agenda change affecting the politics of ??fracking operations?? in the US, a process of extracting natural gas from underground shale formations. We examine how the movement of this policy issue between the state and federal levels of government has become increasingly contentious because of rising public concern about pollution impacts. Using information obtained from documentary sources and media content analysis, we found that the natural gas policy coalition has largely focused on a political strategy based on maintaining fracking regulatory controls at the state level, while the environmental policy coalition has pushed for increased regulation of drilling practices in general, including a larger policy and oversight role for federal agencies such as EPA.     

Public Incentives,Market Motivations,and Contaminated Properties: New Public Management and Brownfield Liability Reform

Brownfields pose challenges to both communities and policy makers. Public funds are insufficient to remediate these contaminated sites, but, given the uncertainty of contamination and the complexity of liability, private interests are reluctant to become involved for fear of future litigation. From a New Public Management perspective, market incentives can be used to encourage private sector remediation of sites. However, this change implies a shift in administrative function from regulation to “getting the incentives right.” In this research, the authors investigate whether state and federal reforms aimed at increasing private sector involvement have actually done so, and they consider the implications for other goals of brownfield remediation, such as providing economic development assistance in communities where such change is needed. Findings show that developers respond to insurance and tax incentives, but the authors question whether public incentives are making unattractive redevelopment opportunities worth investing in or simply making profitable redevelopment opportunities more profitable.     

STATE IMPLEMENTATION OF THE SURFACE MINING CONTROL AND RECLAMATION ACT OF 1977

The implementation of the Surface Mining Control and Reclamation Act (SMCRA) of 1977 in coal producing states is guided by a partial preemption policy approach t h a t establishes a balance between federal and state decision-making authority. The usefulness of this approach is assessed by analyzing state enforcement actions in relation the institutional capacity of states to shoulder regulatory responsibilities and the propensity of the federal Office of Surface Mining (OSM) t o oversee state enforcement actions and, if necessary, to undertake corrective action. Our results indicated that state administration of SMCRA was canstrained by the lack of effective federal oversight but was largely unaffected by interstate differences in political, economic, or administrative characteristics.     

Environmental Policy and the Bush Era: The Collision Between the Administrative Presidency and State Experimentation

The Bush administration entered office in 2001 pledging to supportactive collaboration with states in environmental protectionand pursued this approach in some early initiatives and appointments.This emphasis was rapidly abandoned, however, in favor of aneffort to recentralize oversight in a manner consistent withhistoric attempts to establish an administrative presidencymodel. In response, states have demonstrated that they are notprepared to take a back seat to the federal government, probingfor areas to pursue innovative opportunities at the same timethat they challenge any instances of federal overreach or disengagementthat they deem problematic. The result has been a steady increasein intergovernmental conflict from the previous decade.     

Federal constraints and state innovation: Lessons from Florida's family transition program

Prevailing wisdom holds that limiting the federal role in welfare will free the states to be more innovative in welfare‐to‐work programs. Findings from Florida's Family Transition Program (FTP), a pilot welfare reform initiative, however, suggest that the relationship between federal “strings” and state innovation is more complex. A central feature of the welfare‐to‐work program in the FTP was the direct result of federal requirements imposed by the Department of Health and Human Services during waiver negotiations. Federal regulation, in this case, promoted innovation. Outcome‐orientation, media and political attention, and fiscal structure are argued to be potentially important factors structuring the impact of federal regulation on state innovation. ©1999 by the Association for Public Policy Analysis and Management.     

Health Insurance in Transition: The Health Insurance Portability and Accountability Act of 1996

The Health Insurance Portability and Accountability Act (HIPAA)of 1996 (PL. 104–191) brings the federal government fullyinto insurance regulation for the first time. Despite the Republicanmajority's rhetoric about state control, election-year politicstrumped federalism. HIPAA's immediate impact oncoverage maybe modest, but its ultimate significance is great because itcreates a template for more farreaching federal involvementin regulating insurance. HIPAA amends the Employee RetirementIncome Security Act (ERISA), the Public Health Service Act,and the Internal Revenue Code, creating a complicatedstructuredictated by efforts to avoid an unfunded mandate. The historyof insurance regulation and the activity surrounding the enactmentof PL. 104–191 suggest that HIPAA continues an incrementalprocess of transition between state insurance regulation andfederal oversight driven by recent and accelerating changesin the structure of the health-care marketplace.     

THE IMPACT OF STATE STANDARDS AND ENFORCEMENT PROCEDURES ON LOCAL JAIL PERFORMANCE

One of the recent trends in the field of criminal justice has been the development of state jail standards. The nature of local politics has meant that jails have been among the most poorly funded and operated governmental institutions. The result of decades of neglect is a fertile ground for inmate litigation. The interest shown by the courts, in a variety of operational and procedural areas, has been a key factor in leading many states to assume a greater role in local jail oversight. This article examines some of the problems facing jails and describes state efforts to address these problems through state-level jail standards and enforcement procedures.     

Equity in Federal Contracting: Examining the Link between Minority Representation and Federal Procurement Decisions

The federal government increasingly relies on nongovernmental organizations for procuring goods and services. This long‐term trend presents a significant challenge for administrators because it risks the egalitarian values of democracy by further distancing administrative action from direct, participative, democratic oversight. The authors put forward a theory of representative bureaucracy as a way to reconcile democracy with the reality of the contemporary policy process in which unelected officials are the principal decision makers. The theory is tested in the domain of federal procurement, specifically within the contract award decisions of 60 federal agencies over three years. The authors argue that increased minority representation in leadership positions results in an increased proportion of federal contracts awarded to small minority‐owned firms.     

THE POLITICS OF LEGISLATIVE CURTAILMENT OF ADMINISTRATIVE RULEMAKING: OBSTACLES TO POLICE-PATROL OVERSIGHT

State Administrative Procedure Acts (APAs), like their federal counterpart, attempt to even the odds that citizens’rights will be protected as administrative agencies exercise quasi-legislative and quasi-judicial functions. North Carolina is one of several states which has recently attempted to constrain agency power in rulemaking and complaint adjudication. This is a case study of policy outcomes attained by the North Carolina General Assembly in its 1985 revision of the state's APA. Why did some state legislators’efforts to assume stricter oversight over administrative rulemaking fall far short of the kind of control and accountability they aimed for? We explore three types of obstacles to APA reform encountered in North Carolina. Each is relevant to other states. First, direct surveillance or “police-patrol” techniques of legislative oversight impose undesirable political costs on legislators. Second, there is an absence of (or categorical precedence is against) the adoption of such techniques. Third, executive-legislative branch conflict and complex separation of powers issues arise when state legislatures attempt to curtail administrative rulemaking in significantly new and restrictive ways.     

Intergovernmental councils in the United States

ABSTRACT

This article focuses on intergovernmental councils (IGCs) in the United States in which prominent state-level executive politicians, that is, governors, play a leadership role. In the US case, these IGCs developed out of a desire to facilitate interstate information exchanges and a need for state governments to join forces to protect their autonomy vis-à-vis the federal government. In this latter role, the councils function as lobbyists for state government interests. The research question driving the analysis has to do with impact: what difference do executive-led IGCs make, either vertically or horizontally, in the US federal system? The question of impact is particularly relevant because growing partisan polarization in contemporary federal and state political institutions complicates collective action by states.     

Presidential Bureaucratic Power and Supreme Court Justice Voting

Presidency scholars suggest that the federal bureaucracy has become presidentialized and that the federal agencies have become a primary tool for presidential policy implementation. However, in its review of federal agency litigation, the Supreme Court stands as an important monitor of executive bureaucratic action. Here, the conditions under which Supreme Court justices choose to facilitate executive bureaucratic action are assessed. This study tests the proposition that Supreme Court justices' voting decisions to support the president's bureaucratic agents are conditioned upon theoretically interesting extra-legal factors. Logistic regression analysis was conducted on justices' votes from Supreme Court cases involving cabinet and independent agencies during the years 1953–1995. The results indicate that Supreme Court justices' voting decisions to favorably review bureaucratic actions are influenced by extra-legal factors including attitudinal, political, and external concerns.     

On distinguishing between Leviathan and Public Interest governments in a federal state

The purpose of this paper is to derive testable implications for the proposition that provincial governments in a specific federal system are Leviathans, that is, revenue maximizers. The Leviathan model, associated with Brennan and Buchanan (1980) hypothesizes that governments behave like monopolies who seek to maximize their revenue. This model is contrasted with an alternative hypothesis, the Public Interest Theory. A theoretical model of a federal state, based on the Canadian system, is constructed and testable implications are derived. The principal feature of the model is that it is set in the context of a particular game involving the federal government, provincial governments and a consumer. In attempting to model this situation, care has been taken to try to incorporate as many institutional features of the Canadian federal system as possible, while still allowing the model to be somewhat parsimonious. With some modification, the model may be applicable to other countries with similar federal systems.     

Goal Conflict and Fund Diversion in Federal Grants to the States

Researchers using fiscal choice models have had limited success predicting fund diversion in federal grant programs. The application of a principal-agent framework to questions of fiscal federalism offered a potentially valuable alternative approach, but the traditional model employed by Chubb (1985) neglected potential variability in the degree of goal conflict between principals and agents. This article proposes an expanded framework, which incorporates the possibility of variation in goal conflict between participants in intergovernmental aid programs. The theory suggests that the level of policy congruence between recipient jurisdictions and the national government will determine the amount of grant funding diverted away from targeted policy areas. Findings from analyses of grant programs in two distinct policy areas support the hypothesis that grant effectiveness is partially a function of goal congruence. The relationship between intergovernmental partners is interactive, with the degree of policy agreement determining fund diversion in subnational jurisdictions, as well as the effectiveness of federal oversight activities. The findings have important theoretical implications for understanding both fiscal federalism and principal-agent relationships more generally.     

From Coercion to Partnership in Federal Partial Preemption: SMCRA, RCRA, and OSH Act

This article examines the experiences of three important partial-preemptionprograms—the Surface Mining Control and Reclamation Actof 1977 (SMCRA), the Occupational Safety and Health Act of 1970(OSH Act), and the Resource Conservation and Recovery Act of1976 (RCRA)—over the last two decades to improve our understandingof how federal-state interactions have shaped the regulatorypartnership. The evidence we gather suggests that the controlof regulatory programs has shifted over time back and forthbetween the federal government and the states. In the initialyears of these programs, what the Congress intended to be aregulatory partnership was, in effect, almost total federalpreemption of state authority. Under the Ronald Reagan administration,the opposite occurred; federal regulation in many cases becamede facto state regulation as federal officials essentially abdicatedtheir oversight responsibility. By the end of the 1980s, thefederal government began again to assert greater control overintergovernmental regulatory programs. The regulatory relationshipthat emerged is one in which the federal government and thestates share responsibility and authority for the implementationof these programs.     

Money and Mandates: The Politics of Intergovernmental Conflict

The federal government's relationship with the states dependsin part on the level of federal aid and the number of federalmandates. Environmental policy, with less federal aid and moremandates, differs from education policy and health policy. Thevolume of intergovernmental litigation is heavier and rhetoricalreferences to intergovernmental partnerships by agency headsare more common in environmental policy. Waivers are more commonin education policy and health policy, but that appears to bea function of congressional policies largely barring environmentalpolicy waivers. Federal judges are more supportive of the federalgovernment's position on environmental protection and educationthan its position on health care. Overall, federal funding andmandates appear to have an impact on state governments, federalbureaucrats, and federal judges.     

Federal Preemption and State Regulation of Transportation and Telecommunications

Transportation and telecommunications are two of the most importantinfrastructural industries in the American economy. As theseindustries are so vital and because they exhibit characteristicsthat have frequently rendered them quasi-monopolistic, theirgrowth has been accompanied by state and federal regulation.We document how the imposition of regulation has led to continualconflicts over the extent to which federal regulation shouldtake precedence over state regulation. We illustrate how thejustifications for federal preemption have been applied notonly to the regulation, but also to the recent deregulation,of railroads, trucking, and telecommunications. We contend thatpolitical factors, such as congressional support, precedent-settingcourt rulings, and, most important, political pressure fromaffected interest groups that is related to the revenues stillgenerated within states by these industries, ultimately determinethe form of preemption that emerges from the Congress.     

Regional Power in National Diplomacy: The Case of the U.S. Section of the International Boundary and Water Commission

An interesting anomaly in the usual pattern of federal foreignpolicy management is found in the case of the U.S. Section ofthe International Boundary and Water Commission, United Statesand Mexico. The U.S. Section functions as a quasi-independentagency formally subject to the U.S. Department of State forpolicy oversight. Since its formation in 1945, however, theU.S. Section has acquired substantial institutional autonomyfrom the State Department due to its specialized jurisdiction,clientele relations with U.S. border states, and bilateral diplomacy.The U.S. Section performs a mediator role between the StateDepartment and its state clientele in resolving transboundaryproblems with Mexico, and leans toward the states when federaland state interests conflict.     

State Legislators and State Auditors: Is There an Inherent Role Conflict?

Traditionally, one of the functions of state legislatures has been that of oversight. However, because it is the least rewarding, legislatures have paid it the least attention. This has led to increased responsibilities for state auditors. In many cases, their role has expanded from an examination of financial transactions and internal control to include the oversight functions previously performed by the legislatures. The result has been considerable auditor-legislative tensions. This study surveyed state auditors to determine potential areas of conflict between auditors and legislatures. It found the major areas of conflict include inaction by legislators on the findings and recommendations of auditors and attempts at inappropriate control over the audit function by legislatures.     

Guiding Regionalism and Reform from the Court: Judge John Feikens

For decades, federal district court judges have been deeply involved in the reform of state and local government agencies. Some scholars describe such a judicial role in institutional reform as “managerial.” This profile examines the managerial role of Judge John Feikens, who, since 1977, has supervised the Detroit Water and Sewerage Department's attempts to comply with federal laws on wastewater treatment and water quality. Through his sustained, effective oversight, Feikens became an influential mediator of metropolitan cooperation. His persistence in resolving metropolitan conflict may be viewed with concern by those who worry about lengthy court involvement in public administration. However, this insightful profile underscores poignant contemporary lessons, even from judicial actions, for enhancing metropolitan problem solving.     

Guidelines for social services grants

Guidelines for spending federal grants to the states for social services changed repeatedly between 1962 and 1975. The process of preparing guidelines changed, and so did their content. These changes are described and explained. Guidelines at all stages failed to provide intelligible and useful instructions to federal and state administrators. In part this was because the contextual supports that normally help to give effect to grant-in-aid guidelines—explicit antecedents in the law, and implicit understandings among administrators at different levels of the federal system—were lacking or seriously defective. Beyond that, in each of their different phases the guidelines proved untenable because of dysfunctions that may have been peculiar to the respective processes by which they were prepared.The trustees, officers, and other staff members of The Brookings Institution have no responsibility for the contents of this paper.