The California Greenhouse Gas Waiver Decision and Agency Interpretation: A Response to Professors Galle and Seidenfeld

Abstract:     
In Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power (Duke Law Journal, forthcoming 2008), Brian Galle and Mark Seidenfeld argue that agencies possess important advantages, compared with Congress and the courts, in considering whether federal law should preempt state law. They point to the relative transparency and accountability of agency proceedings. This response argues that EPA's highly visible recent process for deciding whether to waive Clean Air Act preemption for the State of California's motor vehicle greenhouse gas emissions standard represents a good test case for Galle and Seidenfeld's views. Despite public hearings, notice and comment procedures, the prospect of judicial review, and high visibility, the agency's application of the Clean Air Act's preemption provisions nonetheless fell short in critical respects. The case study suggests that Galle and Seidenfeld have failed to fully consider distinctive limitations on the ability of agencies to resolve state law preemption questions. For example, agencies lack expertise in important federalism values. Moreover, an agency with a policy in hand may be loath to acknowledge the usefulness of further policy development or experimentation by other governments, including by states.

Number of Pages in PDF File: 19

Keywords: administrative law, state law preemption, agency preemption, California greenhouse gas standards

Accepted Paper Series