Environmental Federalism Elsewhere
Chapter Twenty-Eight
Syllabus topic 1, "Environmental Federalism and International Order"
Pages 83 to 85 of 663
In one line
Every federation has the same problem India has, and the three main answers are American supremacy, European subsidiarity and Canadian cooperation, which between them show what India's Article 253 is and is not.
In exam wording: environmental federalism outside India is arranged on three models: the United States, where a ratified treaty is itself the supreme law of the land under Article VI of its Constitution and federal environmental statutes rest on the commerce power with a system of cooperative federalism; the European Union, where the environment is a shared competence exercised subject to the principle of subsidiarity under Article 5 of the Treaty on European Union; and Canada, where jurisdiction is divided and the courts have upheld federal environmental legislation as an exercise of the criminal law power and of the national concern branch of peace, order and good government.
Why compare at all
Because MU's topic 1 is not "Indian environmental federalism". It is "Environmental Federalism and International Order", and the general shape of the problem is what the topic names. A comparison also shows an examiner that the candidate understands what is distinctive about the Indian answer.
The United States
Treaties are self-executing where their terms permit. Article VI, clause 2, of the Constitution of the United States makes treaties made under the authority of the United States the supreme law of the land, binding the judges in every State. So there is no reception problem of the Indian kind.
But the treaty power has limits in practice. The Senate must consent by two-thirds, which is why the United States signed the Kyoto Protocol and never ratified it, and why it has never joined the Law of the Sea Convention or the Convention on Biological Diversity.
Federal environmental statutes rest on the commerce power, not on the treaty power, and are administered through cooperative federalism: the federal agency sets a standard, the States write implementation plans, and the agency may take over if a State fails.
The lesson for India. Self-execution removes the reception gap and creates a political gate instead. India's executive can bind the country easily and then has to legislate; the United States cannot bind the country easily but needs no further step when it does.
The European Union
The environment is a shared competence. Article 4 of the Treaty on the Functioning of the European Union lists it. The Union legislates, and Member States may act to the extent the Union has not.
Subsidiarity governs when the Union may act. Article 5, paragraph 3, of the Treaty on European Union provides that in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can be better achieved at Union level.
Environmental Federalism Elsewhere
The Union makes treaties itself. It is a party to the Framework Convention on Climate Change, the Paris Agreement, the Convention on Biological Diversity and the Basel Convention in its own right, alongside its Member States. That is a "mixed agreement", and it has no Indian analogue at all.
The lesson for India. Subsidiarity is a principle about the level at which a decision is best taken. Article 253 has no such principle in it: it is a plain competence to legislate whenever there is a treaty, and it does not ask whether the States could have done the job.
Canada
Jurisdiction over the environment is divided between the federal Parliament and the provinces and the word appears in neither list. The Supreme Court of Canada has upheld federal environmental legislation on two bases: the criminal law power, and the "national concern" branch of the power to legislate for peace, order and good government, which requires the matter to have a singleness, distinctiveness and indivisibility that distinguishes it from provincial concerns. The pattern is very close to India's, and the doctrinal solutions are different because Canada has nothing like Article 253.
The comparison in one table
| India | United States | European Union | Canada | |
|---|---|---|---|---|
| Who makes a treaty | The Union executive alone | The President with two-thirds of the Senate | The Union and the Member States, often jointly | The federal executive |
| Self-executing | No | Yes, where the terms permit | Union agreements bind the institutions and the Member States | No |
| Federal power to implement | Article 253, overriding the lists | The treaty power, plus the commerce power | Shared competence, subject to subsidiarity | Criminal law power and national concern |
| Constraint on the centre | None in the text | The Senate | Subsidiarity and proportionality | Judicial characterisation of the subject |
| Enforcement | State boards | Cooperative federalism with federal takeover | Member State authorities, with infringement proceedings | Provincial and federal both |
Worked example
Suppose the same convention on mercury is ratified by all four.
- India. The Union executive ratifies. Parliament enacts under Article 253 if a change in the law is needed. State boards enforce.
- United States. The Senate must consent by two-thirds. If it does, the treaty is supreme law; if the terms are not self-executing, Congress legislates under the commerce power.
- European Union. The Union and the Member States both become parties. The Union legislates by regulation or directive; a directive is transposed by each Member State.
- Canada. The federal executive ratifies. Parliament must find a head of power; it would probably use the criminal law power, prohibiting mercury use with penal sanction.
The Indian route is the shortest of the four, and the one with the fewest checks on the centre. That is worth saying plainly in an answer, because it cuts both ways: it makes India fast to implement and gives the States no voice at all in what they will be required to enforce.
Environmental Federalism Elsewhere
What it does NOT mean
It does not mean Article 253 has been abused. No Indian environmental statute has been struck down under it, and the constitutional question has scarcely been litigated.
It does not mean the European model is available to India. The Union is not a federation and its Member States remain sovereign States in international law.
Quick revision
- United States: Article VI supremacy clause, self-executing treaties, Senate consent by two-thirds, commerce power, cooperative federalism.
- European Union: shared competence, subsidiarity under Article 5 of the Treaty on European Union, mixed agreements.
- Canada: criminal law power and the national concern branch of peace, order and good government.
- India: executive treaty-making, no self-execution, Article 253 with no subsidiarity constraint.
- India's route is the fastest and has the fewest checks on the centre.
Test yourself
1. Why did the United States sign the Kyoto Protocol and never become a party? Because ratification requires the consent of two-thirds of the Senate, which was not forthcoming. Signature alone does not bind.
2. What is subsidiarity, and does India have anything like it? The principle that the Union acts only where the objectives cannot be sufficiently achieved by the Member States and can be better achieved at Union level. India has no equivalent; Article 253 asks only whether there is a treaty.
3. What is a mixed agreement? A treaty to which the European Union and its Member States are both parties, because the subject matter falls partly within Union competence and partly within that of the States.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.