Document Type

Working Paper

Publication Date

2-26-2009

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Administrative Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Environmental & Natural Resources Law eJournals

Abstract

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

Download

Share

COinS