Preemption Hard Look Review, Regulatory Interaction, and the Quest for Stewardship and Intergenerational Equity
William W. Buzbee
Emory University School of Law
October 8, 2009
George Washington Law Review, Vol. 77, No. 1521, 2009
Emory Law and Economics Research Paper No. 9-45
Emory Public Law Research Paper No. 9-66
Current debates over federalism, especially preemption, center on the merits of legal structures that rely on a sole or preemptive federal regulator versus strategies that retain roles for multiple regulatory actors, especially federal, state and local actors sharing concurrent and interacting authority. Many such preemption and federalism battles arise out a clash between proponents of increased protection from risk and anti-regulatory preferences of industry and sometimes aligned political and regulatory officials. In a recent major policy change late in the Bush Administration, many federal agencies and supportive industry asserted that agency actions had broad preemptive effects on state and local regulatory powers and common law regimes. These claims usually followed no advance opportunities for comment or open, reasoned agency decisionmaking. After reviewing this policy shift, the article discusses why private and public sector actors seldom look past immediate rewards and risks, and links that discussion to reasons regulatory schemes retaining concurrent regulatory authorities may lead to more protective, long-term perspectives than regimes utilizing a unitary regulator.
The article then turns to a much neglected aspect of judicial review of preemption claims: How should courts review the factual and policy underpinnings of claims that federal regulatory actions should preempt? Through analysis of federalism and preemption jurisprudence, as well as administrative law doctrine that rewards transparency, accountability, and constrained discretion, this article argues that courts should explicitly embrace “preemption hard look review.” Court should subject agency claims of preemptive power and effect to close analysis to see if such an outcome is well justified by underlying facts and policy claims. Where agencies assert such power following transparent and participatory regulatory process resulting in well reasoned justifications, court should grant agencies greater policymaking latitude. The article shows how explicit judicial embrace of preemption hard look review would constitute, at most, only a modest doctrinal shift in preemption jurisprudence, but would further important federalism and administrative law values. By prodding agencies to make preemption claims in an open, transparent and participatory manner, such rigorous hard look review would also improve the odds that agency actions would be consistent with express public-regarding purposes in most laws, and thus would be likely to further stewardship, sustainability and intergenerational equity goals.
Number of Pages in PDF File: 62
Keywords: preemption,federalism, administrative law
Date posted: October 8, 2009