The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law

This Article addresses a fundamental question in environmental law: When is it desirable to have competition among multiple jurisdictions, such as among states in the American federal system or nations in the international arena? The heart of the debate has been whether competing regulatory regimes tend to create a "Race to the Bottom" in their efforts to attract industry. This Article proposes a new framework for understanding what is meant by the Race to the Bottom, and uses that framework to analyze the nature of competition among jurisdictions in environmental law. The recent literature in this area has made cogent critiques of earlier claims that a Race to the Bottom would exist.

This Article answers those critiques, and shows how significant failures would likely occur in competition among the states if the federal government were to repeal its minimum environmental standards. The analytic framework developed in the Article also illuminates the nature of jurisdictional competition in areas beyond the environment, including corporations law, occupational safety, child labor laws, welfare, and tort reform.