Democratizing Preemption: Why and How Federal Courts Should Consider the Weight of Democratic Support for Non-Federal Alternatives

Abstract:     
This Article sets forth a normative argument for changes in federal preemption and federal ripeness doctrine, using the California greenhouse regulations as the principal example. Cases in which the courts find that federal law preempts state law raise questions not only as to whether state sovereignty as a distinct value has received its due but also whether enough attention was paid to the democratic preferences, the democratic weight, that resulted in one or more state opting for an alternative to federal law. The more and bigger the states there are that adopt a non-federal standard, the greater is that democratic weight, and the more the courts should hesitate before finding federal preemption in otherwise close cases - cases where there is a great deal of statutory ambiguity and uncertainty as to Congressional intent. To facilitate this democratic-weight approach, and to bring more consistency to the treatment of states and state institutions in the federal courts, the federal courts should adopt a stricter ripeness requirement for federal preemption cases than they currently employ. A stricter ripeness requirement also would help Congress and the federal Executive respond to state adoptions of non-federal standards, and in that sense would help make federal law more accurately reflect national sentiments. Finally, in future legislation, Congress should facilitate state coordination through greater use of the single-state-alternative approach employed in the mobile source emissions portion of the federal Clean Air Act.

The approach advocated in this Article, if adopted, could make the difference in the outcome of the greenhouse gas emission preemption litigation now ongoing in California, Rhode Island and Vermont. On the substantive merits of the preemption claims, the fact that many states legislatures, reflecting electorates that account for a large portion of the nation, have opted for the greenhouse gas emission standards that in effect would require improved fuel economy could be a deciding factor given that the relevant Congressional intent concerning preemption, however conceived, is hard to discern. There is no easy answer to the intent question given that Congress explicitly endorsed the right of California to adopt stricter air standards than the federal standards (which arguably is what California and the other states have done) and Congress explicitly prohibited states from adopting stricter fuel economy standards than the federal standards (which arguably is what California and the other states have done).

Number of Pages in PDF File: 64

Keywords: Environmental Law and Policy, Constitutional Law - Federalism, Civil Procedure

Accepted Paper Series