Federalism, Preemption, and Greenhouse Gas Emissions

Abstract

California, long a leader in regulating emissions from automobiles, is now attempting to regulate motor vehicle greenhouse gas emissions. The state's new regulatory efforts present interesting legal questions about preemption under two separate federal statutes, the Clean Air Act and the Federal Energy Policy and Conservation Act. The state's role in regulating air pollution more generally is also under legal attack on preemption grounds in a number of different cases. In this symposium article, I analyze the legal challenges California's greenhouse gas emissions will likely face and describe the ways in which California's unique role in regulating air pollution is at risk.

I also suggest that California's place in air pollution regulation presents an example of federalism often ignored in standard debates about the proper division of regulatory authority between the states and the federal government. Rather than assigning regulatory responsibility to the federal government alone, to the states alone, or delegating to the states a cooperative federalism role as is typical in many environmental statutes, Congress acted differently in regulating mobile source air pollution. Congress has set a baseline of automobile emissions standards but has freed up only one state, California, to do more than the federal minimum. Other states may opt into the California regulatory scheme. This innovative federal/state scheme, I suggest, may produce its own regulatory dynamic: by singling out California for environmental leadership, the state's behavior may be influenced not only by its own voter preferences, competition with other states, etc., but by its special regulatory role. California's unique role has likely increased the state's bureaucractic expertise, concentrated innovation geographically, taking advantage of economic benefits that flow from geographic concentration, and created a private constituency - mobile source technology firms - for stronger regulation. The state's special role may, indeed, provide a model for regulating other national problems.

Keywords: federalism, environmental regulation, preemption, greenhouse gases, air pollution

JEL Classification: 025, 028, K32