Hothouse Flowers: The Vices and Virtues of Climate Federalism

Abstract:     
Federal law preempts state regulation of motor vehicle emissions. California alone is allowed to seek a waiver of such preemption, and unsuccessfully sought such a waiver for the state's regulations limiting greenhouse gas emissions from motor vehicles. The debate and pending litigation over California's effort to obtain a waiver of preemption has focused attention on the state role in climate change policy. This paper explores the role of state governments in developing climate change policy, with a particular focus on how federalism principles and practice should inform judgments about the division of authority between the state and federal governments. As a general matter, the arguments for state leadership and independence are greatest where environmental concerns are localized, and weakest where environmental concerns cross jurisdictional boundaries, as is the case with global climate change. After consideration of the vices and virtues of state climate policy initiatives, the paper considers the legal issues surrounding California's waiver request in some detail. The paper then considers what environmental law might look like if the federal government took the idea of environmental waivers more seriously and afforded states greater opportunities to seek relief from federal environmental strictures. The final portion of the paper outlines the basic case for granting states access to waivers throughout federal environmental law, and briefly details what such a waiver provision might look like.

Keywords: climate change policy, state climate policy initiatives, administrative law, waiver of federal preemption, climate federalism, EPA, waiver of federal preemption, global climate change, California Air Resources Board, vehicle emission standards, environmental federalism

JEL Classifications: K23, K30, K32, Q25, Q28

Accepted Paper Series