Federal Climate Change Legislation and Preemption
Environmental & Energy Law & Policy Journal, Vol. 3, p. 261, 2008
43 Pages Posted: 26 Feb 2009
Date Written: 2008
After years of inaction, Congress stands on the brink of enacting legislation to regulate greenhouse gas (GHG) emissions. Congress will not be writing this legislation on a completely blank slate, however. Many states have already taken some initial steps to reduce GHG emissions. Congress, therefore, will have to decide whether or not to displace the power of state governments to craft climate change programs that go beyond the scope of federal legislation. This article weighs, in detail, the merits of ceiling preemption versus floor preemption in the context of federal climate change legislation.
The article concludes that the case in favor of preserving the authority of state government to enact more protective GHG regulation is compelling. Not only would such an approach continue to afford states an opportunity to address the concerns of their citizens about climate change and its diverse local impacts, but the use of floor preemption would also provide the nation with considerable programmatic and institutional benefits. States could still produce and experiment with innovative ways to minimize the impact of global warming, thus presenting other jurisdictions, including the federal government, with models for possible future application. In addition, the institutional diversity preserved by floor preemption would offer the nation a multiplicity of venues in which policy choices could be explored as well as some protection against the risk of regulatory failure. Ceiling preemption operates in precisely the opposite direction. It actually increases the risk of regulatory failure because all policymaking power is vested in one federal agency - an agency which could grow lethargic, an agency where regulation could be frozen in time. The diversity made possible by the use of floor preemption, therefore, offers real advantages to the nation in contrast to the substantial risks inherent in a unitary federal approach.
Keywords: environmental law, preemption, climate change, clean air, cooperative federalism, state environmental law, energy law, federal-state relations, global warming, state climate change programs
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By Alice Kaswan