Interaction's Promise: Preemption Policy Shifts, Risk Regulation, and Experimentalism Lessons

Abstract

This essay discusses two innovations in federalism and regulation, using the two to illuminate the merits of each other. These two innovations are recent aggressive political assertion of ceiling preemption and experimentalist agency modes that move away from more rigid forms of regulation. Using these two innovations to illuminate each other, the article concludes that the clashing and interaction of actors and institutions under federal regulatory schemes utilizing cooperative federalism structures and floor preemption, which set minimum required federal protections, provide an array of regulatory benefits lost with complete recent ceiling preemption.

The article acknowledges that fully preemptive federal standards can have their place, both as a matter of constitutional power and logical regulatory design. In statutory and regulatory regimes, however, Congress and agencies have for many years overwhelmingly manifested a preference for regulatory overlap and interaction, allowing state and local governments, as well as common law regimes, to surpass the stringency of federal regulation or provide additional protections through different strategies. Fully preemptive federal standards, especially in their recently asserted form of ceilings operating as a unitary federal choice, pose an array of institutional risks. The regulatory experimentalist literature highlights their problematic implications. But examination of preemption dynamics and incentives also illuminates potentially aspirational elements of experimentalism that may be unrealistic in the risk regulation setting. Federal setting of regulatory floors in cooperative federalism settings offers what can be viewed as perhaps a second best variant of experimentalism. Under cooperative federalism regimes, these more standard regulatory floors are more rigid than the fluid rolling rule approaches that experimentalists tout. Nevertheless, such regulatory floors provide much of the interaction and room for innovation that experimentalists champion. In the risk regulation setting, the messy clashing and interaction of real-world multilayered regulatory federalism creates incentives and hence markets for improvement and innovation that may not exist with more idealized forms of experimentalist regulation.

Keywords: Federalism, Risk Regulation, Produtcs Liability, Climate, Greenhouse, Preemption, Common Law, Floors, Ceilings, Race to the bottom, Experimentalism, Environmental, Administrative agencies, Deference, Clear statement, Regulatory compliance defense, innovation