'Federalism Floors, Ceilings, and the Benefits of Federalism’s Institutional Diversity,' in Preemption Choice: The Theory, Law, and Reality of Federalism’s Core Question
PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM’S CORE QUESTION, William W. Buzbee, ed., Cambridge U. Press, 2009
20 Pages Posted: 14 Dec 2009
This chapter, from the Preemption Choice book published by Cambridge University Press, analyzes the implications of regulatory regimes utilizing preemptive regulatory ceilings or floors. Floors set a minimum required level of regulatory protection or stringency, and hence leave room for state and local governments and common law regimes to provide further protections and experiment with innovative strategies. Ceilings, in contrast, involve federal requirements that leave no room for different choices, but provide greater regulatory certainty. Many areas of environmental and risk regulation couple limited floor preemption with delegated program federalism and savings clauses. Until late in the Bush Administration, imposition of ceiling preemption was a rarity, and it remains a rarity in statutory law outside of regulation setting physical mandates and involving production benefitting from economies of scale. Starting around 2005, however, numerous federal agencies and the Department of Justice increasingly asserted that agency actions had preemptive effect and acted as a regulatory ceiling. Ceilings function as a unitary standard and hence are often favored by targets of regulation due to how they preclude other regulators from taking diverse and sometimes more stringent actions. Ceilings also, however, create risks of regulatory stasis. By eliminating the limited institutional diversity retained by regulatory floor strategies, regulatory ceilings can eliminate incentives and markets for regulatory learning, experimentalism, pragmatic improvement and innovation. These regulatory risks are especially great if preemptive ceilings are construed to eliminate the possibility of common law litigation, with its different actors and incentives to update and uncover information long after regulators may have finished their work. The chapter closes by explaining how preemptive ceilings are particularly problematic in areas, such as climate change regulation, where understanding of a regulatory challenge is limited, risks of regulatory failures are substantial, or the problem is itself a moving target. Retaining a diversity of regulatory actors and regulatory modalities through floor preemption strategies can help counteract such risks.
Keywords: Federalism, preemption, Supremacy, preemptive, climate change, inaction, greenhouse, cap-and-trade, obstacle, floors, ceilings, savings clauses, environment, innovation, hard look, statutory interpretation, Constitution, constitutional law, deference, administrative agency, experimentalism, race-to
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