Theodore Lowi's article could be understood to imply that all devolution is bad devolution. But two decades of grassroots environmentalism and community-labor coalition building suggest a far more complex evaluation of the pros and cons of decentralized approaches to regulation.

The framework of our environmental laws, largely established in the 1970s, is geared to advancing environmental protection by baseline federal standards. Such standards are supposed to prevent the states from competing for business by ever-lower environmental protection norms. Under the Clean Water Act, Clean Air Act, and other environmental laws, EPA is the default regulatory body, but the states are given the opportunity to stand in the EPA's shoes as the on-the-scene policemen. To become the "delegated" enforcement agency, the state must adopt and enforce standards at least as stringent as EPA's. The federal role has been significant, as a pacesetter for state regulatory programs.

I want to make three observations about devolution in this context.
Destructive Devolutionary Trends. The first point is that in environmental law we are the midst of the kind of destructive devolution of which Lowi warns. However, the principal mechanism is not the obvious devolution advanced by the Contract with America, but a more nuanced approach. A set of complex devices are being adopted by the states in the name of regulatory flexibility and voluntary compliance incentives, which arguably have the effect of the states "opting out" of elements of the federal regulatory framework while still retaining federal enforcement authority. It may be the worst of all worlds-delegated federal programs and even federal funding to the states without consistency safeguards.

An example is the "environmental audit protection laws" currently enacted in 23 states and pending in several others, ostensibly to encourage corporations to conduct environmental studies of their own activities, known as environmental "audits." While such studies can be helpful to identify problems and improve compliance with environmental laws, these new audit laws go overboard with the incentives-granting corporations rights to conceal an appalling array of environmental information from public and government eyes. Opponents fear that corporations will use the secrecy privileges of these laws as new "dumping grounds" for all sorts of corporate dirty secrets. These laws undercut enforcement and accountability by disabling government enforcement and citizens' recourse.

Other emerging state programs similarly undermine the federal framework. For instance, a Texas law enacted in 1997 allows state agencies to grant exemptions from environmental statutes. An alternative order is supposed to be "at least as protective of the environment and the public health as the method or standard prescribed by the statute-and consistent with state and federal law." But this state law is lacking in definition of what is "at least as protective" and as to when and whether an exemption will be "in compliance" with federal law. Stakeholders in Texas see this as allowing the state a nearly free hand in granting exemptions. The Environmental Defense Fund and the Oil Chemical & Atomic Workers union have jointly filed a challenge to both the Texas permitting and audit laws as contradicting the federal framework and undercutting public protections. They claim that the EPA is obliged to exercise its power to revoke the state's program delegation since with this combination of laws, federal compliance is no longer ensured.

Several states' voluntary remediation programs address cleanup, including some sites slated for the federal Superfund program. Sites may avoid stricter cleanup standards and public scrutiny. The Indiana law was amended last year to make state-company negotiations confidential.

In essence these laws are a "nuanced" form of devolution-dangerously allowing insular corporations to set their own standards and even police themselves in lieu of our publicly accountable baselines and enforcement mechanisms. Largely outside of the purview of effective public scrutiny, such laws threaten to disintegrate the federal environmental regulatory system.
Constructive Decentralized Action. My second point is that, contrary to these new destructive trends, environmental experience also shows that the grassroots can be vital laboratories of experimentation when organized efforts promote progressive ideas that could be too difficult to win initially at a federal level. For instance, the EPA has taken marching orders from Congress to set standards based on "end of the pipe" emission levels. But as it has become apparent that the most beneficial approaches to pollution reduction do not occur at the end of the pipe, several states (notably Massachusetts, New Jersey, and Minnesota) have enacted laws geared toward "pollution prevention" that encourage changes in materials and production processes long before pollutants ever reach the end of the pipe. These state programs emerged within the federal environmental regulatory framework because the feds prescribe minimum standards, but the states are permitted to be more stringent than federal law.

Experimentation and success with less centralized struggles has also occurred through organized grassroots campaigns that have shifted power relationships between corporations and local constituencies. In some instances the result was that corporate proponents of hazardous technologies and projects (e.g., solid and chemical waste incinerators) withdrew proposed construction plans. County and local governments have been pressed to use their regulatory and lawmaking powers so as to shape local development (e.g., zoning, economic development, public health regulation). In other instances, local coalitions have won legally binding Corporate-Community compacts (or "Good Neighbor Agreements") redefining the local social contract between a corporation and a community. Typically such contracts include environmental and jobs commitments to the community backed up with citizen oversight and unusually broad corporate disclosure requirements.

By and large, the local victories have emerged through using existing federal and state regulatory programs as a "lever" rather than as the arbiter and standard for what is deliverable. Local civic organizations and community-labor coalitions across the US have made corporations deliver more of what their communities actually need environmentally and economically. In the process, citizens have developed their capacities for civic participation and leadership. Many local activists who begin with very local struggles move on to electoral politics and become national and international activists and leaders.

The corporate responses to the grassroots victories speak volumes about the complex strategic nature of this issue. Corporations do not hesitate to block local control where local people prove successful at elevating their control over corporate impacts. Corporations have long attempted to assert federal or state preemption where citizens' local regulatory struggles bear fruit. Indeed, today corporations are scrambling to pull off the biggest anti-devolution move ever-establishing a global Multilateral Agreement on Investments (MAI) which would be preemptive of state and local regulatory efforts that undercut their freedom to do business wherever and however they choose.
The Need for a Strategy. The first two points-current "nuanced" and destructive devolutionary trends, plus favorable experiences with progressive state and local organizing-could lead one to conclude that the current problem is not devolution per se, but rather that at the moment right-wing and corporate forces are better organized to use "devolutionary" ideas against environment, equity, and social progress.

What would it take to turn the tide? We need to begin with more policy and message development. We are currently fighting a reactive battle on this issue because we do not have the analytical framework needed for responding to these federal policy challenges. Ultimately we will need to devote far more organizing and resources to implementing a clearly defined strategy.

For starters, we need a more extensive and nuanced discussion than we have had so far on the question of devolution. Are there some decentralist federal policy approaches that we might rally behind, e.g., laws which maintain and advance federal standards and enforcement while also encouraging more progressive organizing from the grassroots? We already have precedents for this: for example, the federal Right to Know Act and the National Labor Relations Act. Are there issues (such as ensuring sustainable communities and wider practice of precautionary action) which are by their nature or politics intractable to address at the federal level, and which could best be advanced by proliferating effective local activities guided by stringent federal process guidelines?

For any such approach to work, it would need to maintain federal baselines to prevent a race to the bottom in the state and local processes. And it would need to include ground rules that would give impacted citizens a fighting chance against the power of corporations and government bureaucrats who otherwise tend to divert local "feel-good" dialogues to their interests. Federal guidelines could set ground rules such as the following:

An expansive right to know. Local stakeholders would have a right to whatever documentation or studies held by government, corporations or other institutions are relevant to sustainability, fairness, safety, etc.
Stakeholder control. Labor and other community stakeholders would have the right to be equal players at the negotiating table, and assurances against corporate controlled panels (equivalent to "company unions"). Stakeholders would have a right to sign-off-i.e., a right against having bad deals imposed by corporations or government.
Independent experts. Local stakeholders would have their own independent experts present at the table as needed during a negotiation and assessment process. Other already "empowered" interests such as corporations or government agencies would not share in control of such experts.
Holistic content. Local negotiations could cut across environmental and economic categories, and ensure that "best practices" are reviewed and applied.
Enforceable agreements. The agreements resulting from any negotiation processes would be enforceable by the parties and by government.

Such a program could proliferate grassroots efforts toward some goals that the federal system has been poor at achieving-examples include sustainable development, environmental justice, "zero" discharge approaches to pollution, etc. Still, there is an obvious need to maintain and advance federal standard setting, since major technical rulemaking necessarily must be engaged in at the scale of the massive institutions and activities being regulated. As one activist, Mark Woodall of the Sierra Club, has put it: "I don't care how well stakeholders are represented, the basic protections, limited as they are, should not be put in play. 'Customized' environmental regulations would seem to be an engineer's dream. For example, the EPA asked me to participate in the XL project [a regulatory reinvention negotiation] for Weyerhaeuser's plant some 60 miles down the road. I was not about to spend hours doing what we pay our regulators for. As the plant is the largest payroll there, anyone they did get to participate was at a disadvantage."

The sun does not rise and set in Washington, DC. Still, the strengths and weaknesses of a legislative approach that encourages more grassroots activity need to be evaluated to learn from past and recent history. For instance, what have we learned from the National Labor Relations and federal Right to Know Acts-two laws providing the kind of process-oriented approach I have suggested?

As we bring our best thoughts together on these questions, it seems likely that we need to distinguish between "devolution" and "decentralized" strategies. The real difference, if there is one, needs to be spelled out and thought through strategically. In a context of limited resources and political capital to spend, a shift of some focus and resources to more local activity may, in practical terms, leave a price to pay in fewer resources for centralized standard-setting and enforcement.

One thing is clear: an aggressive strategic dialogue on questions of devolution may prove more fruitful to advancing environmental, economic, and social goals than an outright dismissal of all devolution as bad devolution.

Perhaps in the end we will find a good slogan that we can rally around as well. I nominate this one: "Moving forward through evolution, not backward through devolution."