Abstract

http://ssrn.com/abstract=1522212
 
 

Footnotes (51)



 


 



'Federalism Floors, Ceilings, and the Benefits of Federalism’s Institutional Diversity,' in Preemption Choice: The Theory, Law, and Reality of Federalism’s Core Question


William W. Buzbee


Emory University School of Law


PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM’S CORE QUESTION, William W. Buzbee, ed., Cambridge U. Press, 2009
Emory Public Law Research Paper No. 09-85
Emory Law and Economics Research Paper No. 09-54

Abstract:     
This chapter, from the Preemption Choice book published by Cambridge University Press, analyzes the implications of regulatory regimes utilizing preemptive regulatory ceilings or floors. Floors set a minimum required level of regulatory protection or stringency, and hence leave room for state and local governments and common law regimes to provide further protections and experiment with innovative strategies. Ceilings, in contrast, involve federal requirements that leave no room for different choices, but provide greater regulatory certainty. Many areas of environmental and risk regulation couple limited floor preemption with delegated program federalism and savings clauses. Until late in the Bush Administration, imposition of ceiling preemption was a rarity, and it remains a rarity in statutory law outside of regulation setting physical mandates and involving production benefitting from economies of scale. Starting around 2005, however, numerous federal agencies and the Department of Justice increasingly asserted that agency actions had preemptive effect and acted as a regulatory ceiling. Ceilings function as a unitary standard and hence are often favored by targets of regulation due to how they preclude other regulators from taking diverse and sometimes more stringent actions. Ceilings also, however, create risks of regulatory stasis. By eliminating the limited institutional diversity retained by regulatory floor strategies, regulatory ceilings can eliminate incentives and markets for regulatory learning, experimentalism, pragmatic improvement and innovation. These regulatory risks are especially great if preemptive ceilings are construed to eliminate the possibility of common law litigation, with its different actors and incentives to update and uncover information long after regulators may have finished their work. The chapter closes by explaining how preemptive ceilings are particularly problematic in areas, such as climate change regulation, where understanding of a regulatory challenge is limited, risks of regulatory failures are substantial, or the problem is itself a moving target. Retaining a diversity of regulatory actors and regulatory modalities through floor preemption strategies can help counteract such risks.

Number of Pages in PDF File: 20

Keywords: Federalism, preemption, Supremacy, preemptive, climate change, inaction, greenhouse, cap-and-trade, obstacle, floors, ceilings, savings clauses, environment, innovation, hard look, statutory interpretation, Constitution, constitutional law, deference, administrative agency, experimentalism, race-to

Accepted Paper Series


Download This Paper

Date posted: December 14, 2009  

Suggested Citation

Buzbee, William W., 'Federalism Floors, Ceilings, and the Benefits of Federalism’s Institutional Diversity,' in Preemption Choice: The Theory, Law, and Reality of Federalism’s Core Question. PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM’S CORE QUESTION, William W. Buzbee, ed., Cambridge U. Press, 2009; Emory Public Law Research Paper No. 09-85; Emory Law and Economics Research Paper No. 09-54. Available at SSRN: http://ssrn.com/abstract=1522212

Contact Information

William W. Buzbee (Contact Author)
Emory University School of Law ( email )
1301 Clifton Road
Atlanta, GA 30322
United States
404-727-6507 (Phone)
404-707-6820 (Fax)
Feedback to SSRN


Paper statistics
Abstract Views: 654
Downloads: 75
Download Rank: 189,397
Footnotes:  51

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.328 seconds