Of Happy Incidents, Climate, Federalism, and Preemption

27 Pages Posted: 19 Sep 2008 Last revised: 2 Oct 2008

See all articles by James May

James May

Widener University Delaware Law School

Date Written: September 17, 2008


This Article examines the shape of things to come in the overlapping realm of federalism and preemption. It questions whether and to what extent notions of federalism shape how federal law - or the absence of it - preempts states from taking measures to address climate change. A burgeoning body of legal scholarship mulls whether federal law ought to preempt state action. There is yet relatively spare legal scholarship on preemption reflecting recent developments in the courts and at EPA.

Part One explains how federalism principles have shaped responses to climate change. It observes how allowing states to take steps to regulate GHG emissions is well-grounded in our nation's tradition of dual sovereignty and federalism and is consistent with the Supreme Court's recent decision in Massachusetts v. EPA. It opines that state responses to climate change are consistent with federal law, which is designed to allow ample breathing room for state action and cooperative federalism. Thus, it concludes that EPA's denial of California's recent request to implement standards for greenhouse gas emissions from motor vehicles seems incongruent with a principal platitude of so much political theory.

Part Two addresses how preemption jurisprudence shapes state decisions concerning climate change. It considers how preemption has shaped modern environmental law, and how it might affect state climate measures. It examines the reasoning behind recent court decisions that held that federal law does not preempt state GHG emission standards for new vehicles. It concludes the test cases deflecting preemption challenges get it right. In short, states are supremely situated to experiment with social and technological reform to curtail precursors to climate change.

Keywords: federalism, preemption, environmental law, constitutional law, climate change

JEL Classification: K10, K32

Suggested Citation

May, James, Of Happy Incidents, Climate, Federalism, and Preemption (September 17, 2008). Temple Political & Civil Rights Law Review, Vol. 17, No. 2, 2008; Widener Law School Legal Studies Research Paper No. 08-75. Available at SSRN: https://ssrn.com/abstract=1269540

James May (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics