Nicola, Fernanda G. --- "‘Creatures of the State’: Regulatory Federalism, Local Immunities, and EU Waste Regulation in Comparative Perspective" [2010] ELECD 813; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 11

Section Title: ‘Creatures of the State’: Regulatory Federalism, Local Immunities, and EU Waste Regulation in Comparative Perspective

Author(s): Nicola, Fernanda G.

Number of pages: 22

Extract:

11 `Creatures of the state': regulatory federalism,
local immunities, and EU waste regulation in
comparative perspective
Fernanda G. Nicola


The European Union (EU) has committed itself to strengthening local power in a variety
of ways. Since the 1980s, Brussels has aimed to increase the legitimacy of EU law and
policy by enhancing the number of subnational actors and participants in its decision-
making processes. In reaching out to individuals, associations and especially to local
actors, the EU could potentially undermine the power of its Member States. However,
EU law continues to privilege the relation between Brussels and its Member States rather
than its developing relationship with subnational actors. Thus, when aiming to increase
the power of local governments, EU law often encounters a problem: such empowerment
either does not take place, or it backfires in ways often disruptive of the EU's suprana-
tional aims.
This situation resonates with what US local government law scholars have called the
`creature of the state' problem. In the name of decentralization, federal courts allow
states to structure local power in any way they see fit; the federal courts cannot mandate
particular local power structures in furtherance of federal goals without violating the
constitutional commitment to federalism. Likewise, when EU law regulates local matters
such as waste management, it cannot create new legal powers for subnational actors.
Rather, decentralization through EU law relies on the existing national-local structure,
which differs in each Member State and creates two different types of problems.
A first ...