State Greenhouse Gas Regulation, Federal Climate Change Legislation, and the Preemption Sword
San Diego Journal of Climate and Energy Law, Vol. 1, p. 23, 2009
41 Pages Posted: 14 Dec 2009 Last revised: 17 Apr 2015
Date Written: December 10, 2009
This article, derived from a paper first given at a 2009 Conference at San Diego Law School, analyzes the rationales for retention of state authority to regulate greenhouse gas emissions even if federal climate legislation were enacted that primarily utilizes a cap-and-trade strategy. Climate policy activism and innovation by numerous states and local governments over the past decade in the absence of a federal climate law has been analyzed extensively. This article links the rationales for preservation of state climate regulatory authority to the substantial risks of at least partial regulatory failure faced by any federal law. It is substantially likely that a federal climate change law will prove too lax, be too slow to reduce emission levels, incorrectly predict climate change effects and science, or overestimate compliance costs. If such a law preempted state authority, then the dynamic of state regulatory activity as catalyst for improved or new federal law would be lost. In addition, room for state climate innovations and experimentation could be discouraged or precluded, denying states the ability to tailor their efforts to their state’s particular risks and opportunities, and denying everyone benefits of successful innovations. Furthermore, since most greenhouse gas emissions involve co-pollutants or are also regulated for other effects, any attempt at a preemptive federal climate law could be used to preclude other areas of state regulation. Of particular importance is retention of state authority to require polluters to emit less than federally allowed and also retire allowances or charge more in carbon allowances per unit of greenhouse gas emitted. Without this last form of retained authority, then regardless of other language, only the level of a federal cap would matter. After reviewing the preemption choices in a federal climate bill, the article shows how preemption jurisprudence makes ambiguous or even mildly preemptive language regarding retained state authority substantially likely to be given broad effect by agencies or courts, especially in applying “obstacle” preemption doctrine. The article closes by suggesting anti-preemptive statutory criteria and relegation of any preemption claims to a Preemption Review Committee that would base preemption judgments on statutory criteria and record evidence of problematic conflicts.
Keywords: Federalism, preemption, Supremacy, preemptive, state attorneys general, climate change, inaction, greenhouse, cap-and-trade, obstacle, floors, ceilings, savings clauses, environment, innovation, hard look, statutory interpretation, Constitution, constitutional law, deference, administrative agency
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