ELC 2025: Finding Subfederal Opportunity in Federal Environmental Abdication by Sarah Fox
Federal environmental law is being dismantled by the Trump administration and many federal courts. The elimination of green energy provisions in the Inflation Reduction Act; the removal of climate change from all federal websites, policy, data, and grants; the termination of hundreds of EPA employees; the shrinking of federal jurisdiction over wetlands following the Supreme Court’s decision in Sackett v. EPA; the erection of barriers to climate action in West Virginia v. EPA; these actions and others mean that federal environmental lawmaking cannot be expected to function currently as it has in the past.
Reasons abound why these decisions run counter to both law and good policy. But they represent our current reality. And so the question becomes: where do we go from here? If we are to engage in blue sky thinking, what do we see beneath that blue sky? Current realities likely mean a turn toward a more decentralized form of environmental law in the United States, at least for the present moment. And while that turn has many negative impacts, it also presents opportunities for the evolution of environmental law. Federal environmental statutes have long employed versions of cooperative federalism that include subfederal actors, but states and local governments will have a bigger role to play in the coming years (whether they like it or not). Finding the beneficial aspects of that transition requires identifying more clearly areas of opportunity for subfederal environmentalism. Like any such exercise, the suggestions here are necessarily incomplete and imperfect, with obstacles both legal and practical standing in the way of implementation. But this post is written in the spirit of saying not only what we do not want, but what we do, and of articulating a more deeply developed vision of the path forward.
If the federal government is exiting environmental law to various degrees, it is the job of subfederal governments to step into that void. To the extent that they fail to do so, it is not because they are powerless. State and local governments generally have broad police powers to protect the health and welfare of their citizens that they could rely on to a substantial degree. There are many ways that subfederal governments could exercise these powers; this post will focus on potential actions in land use, renewable energy, and housing.
Land use planning is critical for both climate mitigation and adaptation measures. Beyond that, it is a powerful tool for conservation, for reducing air and water pollution, preserving the health of the land, and other integral aspects of environmental law that may be impacted by the loss of federal coverage. States have the power to require land use planning of their local governments, and many already do; states without local planning requirements should create them going forward. Importantly, that planning should incorporate long time horizons and current climate science to account for appropriate populations patterns in the future. This approach leaves the details of land use planning in the hands of local government, as it long as been, but provides an important state goal-setting and steering function. At the local level, governments have the authority to act using land use tools in a variety of ways that are protective of the environment.
These types of state and local actions can help to fill the void left by federal exiting of environmental realm. For example, following the 2023 case of Sackett v. EPA, the U.S. Army Corps of Engineers lacks jurisdiction over many of the wetland areas that previously would have received federal oversight via a Clean Water Act permit. States may have previously relied on those federal protections to support wetland health within their borders. Now, however, states no longer can point to the federal government as the entity in control of wetlands. With no one else to blame, state law and local actors should take up the mantle of conservation—and subfederal decisionmakers should be held accountable for decisions not to protect wetland areas.
As another example, in April 2025, the U.S. Fish & Wildlife Service and the National Oceanic and Atmospheric Administration published a proposed rule that would rescind the agency’s regulatory definition of “harm” in the Endangered Species Act. That definition currently includes habitat modification alongside other impacts on covered species. If the Trump Administration changes that harm definition, federal action on species protection will be more constrained going forward, as it may shrink coverage of the federal statute to only those actions that “kill or capture a wild animal.” In consequence, species recovery that relies on habitat conservation will be greatly impacted by state and local action. States should pick up the mantle by considering state level species protection and ensuring appropriate habitat conservation protections within their own jurisdictions. Local governments should also focus on land use planning that is protective of species habitat. Those government could, for instance, use mechanisms such as transferable development rights or overlay zones to steer growth out of sensitive areas for habitat. They could also include wildlife corridors as part of their planning that would allow for critical movement by species. A focus on denser development through the use of urban growth boundaries or other zoning tools can also be hugely protective for species in many areas, as it prevents sprawl outward into habitat.
Beyond federal gap-filling, states could step into the leadership void created by the federal government and accomplish big social goals in novel ways. Renewable energy and affordable housing provide a first possible example. The federal Inflation Reduction Act of 2022 promised billions to build renewable energy, but the second Trump Administration has taken a number of actions to interfere with or—where able—to revoke much of that funding. Given current uncertainties at the federal level, states should focus on building out their own intrastate or regional energy supply solutions. In doing so, they could also take the opportunity to address growing tensions in land use about not only renewables buildout but also affordable housing. States could perhaps borrow from a federal model to structure their own regulatory programs. The Clean Air Act’s Air Quality Control Region framework offers a model of how to set an overall target that is then allocated among zones at lower levels of government. Using that structure, states could set both statewide renewable energy generation and affordable housing targets. States could then allocate those goals among substate zones and establish a metric for how to meet those goals. At the local level, communities could then be involved in deciding how to satisfy energy, housing, or both goals. Perhaps some districts will have energy and no housing; some will have housing and no energy generation. Every district will have at least some of one or the other. This scheme would help to spread the burdens of these social goods that have proved so difficult to supply in recent years and ensure that states can implement plans in a way that is responsive to local conditions.
These kinds of measures (and hopefully many others) could go some way in making up for failures at the federal level while drawing on state and local authority that has long been in place. They would also reflect the highly localized nature of land use planning and the environment, require and bolster environmental knowledge and participation at the state and substate level, and make subfederal actors responsible for the environmental conditions within their states.
Nothing in this post is to suggest that these measures are easy, or that a federal role on climate and other environmental problems is not needed. Rather, the goal here is to point out that while the Trump Administration is irresponsibly gutting federal environmental law, it is possible to chart new paths as well. There are opportunities in the destruction of current environmental law structures, and creating more robust action at subfederal levels could serve as a bulwark against the environmental harm likely to come from current federal actions. Such actions are necessary, if not sufficient, to protect our environment going forward.
Sarah Fox is an Associate Professor of Law at Marquette University Law School.