Asymmetrical regulation: Risk, preemption, and the floor/ceiling distinction

New York University Law Review

Volumn 82, Issue 6, 2007, Pages 1547-1619

  Buzbee, William W ^a  

^a EMORY UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 38049158206     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (369)

1. See, e.g., United States v. Morrison, 529 U.S. 598, 617-18 (2000) ("The Constitution requires a distinction between what is truly national and what is truly local." (citing United States v. Lopez, 514 U.S. 549, 568 (1995))); Printz v. United States, 521 U.S. 898, 918-19 (1997) ("It is incontestable that the Constitution established a system of 'dual sovereignty.'" (citing Gregory v. Ashcroft, 501 U.S. 452, 457 (1991))); William W. Buzbee & Robert A. Schapiro, Legislative Record Review, 54 STAN. L. REV. 87 (2001) (analyzing Supreme Court's aggressive parsing of "legislative record" in federalism cases and Court's allusions to need for distinct state and federal regulatory domains);
2. Robert A. Schapiro & William W. Buzbee, Unidimensional Federalism: Power and Perspective in Commerce Clause Adjudication, 88 CORNELL L. REV. 1199, 1257 (2003) (analyzing Commerce Clause jurisprudence using "unidimensional" perspectives on underlying regulatory challenges to strike down federal power and keep distinct federal and state roles).
3. See generally Edward S. Corwin, The Passing of Dual Federalism, 36 VA. L. REV. 1 (1950) (providing historical overview of dual federalism);
4. Paul Wolfson, Preemption and Federalism: The Missing Link, 16 HASTINGS CONST. L.Q. 69, 91-92 (1988) (discussing Supreme Court's preemption jurisprudence and providing historical analysis of preemption).
5. See generally Corwin, supra note 2, at 17 (discussing collapse of dual federalism during New Deal).
6. See generally Robert A. Schapiro, Justice Stevens's Theory of Interactive Federalism, 74 FORDHAM L. REV. 2133 (2006) (explaining that dual federalism persists in courts and academia although it is not reflected in operation of government). For an example of the vestiges of dual federalism, see Solid Waste Agency of North Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 172-73 (2001), in which the Court interpreted the Clean Water Act narrowly, in part because of reluctance to permit "federal encroachment upon a traditional state power." Id.
7. Rapanos v. United States, 126 S. Ct. 2208, 2224 (2006) (plurality opinion) ("[T]he Corps' interpretation stretches the outer limits of Congress's commerce power . . . ."); id. at 2236, 2246-47 (Kennedy, J., concurring in the judgment) (rejecting plurality's application of avoidance concerns); Gonzales v. Oregon, 546 U.S. 243, 269-70 (2006) (6-3 opinion) (reading Controlled Substances Act narrowly in part because of federalism concerns); Gonzales v. Raich, 545 U.S. 1, 38-39 (2005) (5-1-3 opinion) (upholding Congress's commerce power to regulate marijuana under Controlled Substances Act).
8. See William W. Buzbee, Contextual Environmental Federalism, 14 N.Y.U. ENVTL. L.J. 108, 122 (2005) (explaining how environmental laws rely on "tiered implementation and enforcement roles involving all levels of government, as well as citizens");
9. Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243, 248, 288 (2005) (emphasizing benefits of interaction among courts and other regulatory actors).
10. Such cooperative federalism schemes are especially prevalent in the environmental law field. See infra Part II.C (discussing risk, environmental, and social welfare regulation); infra note 56 and accompanying text (illustrating cooperative federalism in Clean Air Acts's National Polluttion Discharge Elimination System).
11. See, e.g., Federal Insecticide, Fungicide and Rodenticide Act § 2, 7 U.S.C. § 136v(a) (2000) (permitting state regulation of federally registered pesticides provided that such regulation does not conflict with federal law); Toxic Substances Control Act § 18(a)(1), 15 U.S.C. § 2617(a)(1) (2000) (preserving state authority to regulate chemical substances subject to certain limitations); Clean Water Act § 510, 33 U.S.C. § 1370 (2000) (preserving state authority to adopt and enforce pollution regulations that are more stringent than federal law); Resource Conservation and Recovery Act of 1976 § 2, 42 U.S.C. § 6929 (2000) (preserving state authority to impose solid waste disposal requirements more stringent than those created by Act).
12. See generally Robert B. Ahdieh, Dialectical Regulation, 38 CONN. L. REV. 863 (2006) (offering theory of intersystemic regulation);
13. William W. Buzbee, Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89 IOWA L. REV. 1, 48-53 (2003) [hereinafter Buzbee, Recognizing the Regulatory Commons] (discussing "regulatory commons" problem that can lead to regulatory gaps in complex regulatory settings involving numerous regulatory actors, and possible solutions for that problem);
14. William W. Buzbee, The Regulatory Fragmentation Continuum, Westway and the Challenges of Regional Growth, 21 J.L. & POL. 323 (2005) [hereinafter Buzbee, Regulatory Fragmentation] (discussing regulatory fragmentation and its implications);
15. Erwin Chemerinsky, Empowering States When It Matters, 69 BROOK. L. REV. 1313 (2004) (discussing actual application of Rehnquist Court's stated presumption against preemption);
16. Kirsten H. Engel, Harnessing the Benefits of Dynamic Federalism in Environmental Law, 56 EMORY L.J. 159 (2006) (arguing for broad overlap in federal and local spheres of environmental regulatory power);
17. Daniel C. Esty, Revitalizing Environmental Federalism, 95 MICH. L. REV. 570 (1996) (arguing that multitiered regulatory structures, rather than decentralized approaches often favored by academics and politicians, best address environmental problems);
18. Robert L. Glicksman, From Cooperative to Inoperative Federalism: The Perverse Mutation of Environmental Law and Policy, 41 WAKE FOREST L. REV. 719 (2006) (tracing decline of cooperative environmental federalism and various obstacles to federal, state, and local policies);
19. Roderick M. Hills, Jr., Is Federalism Good for Localism? The Localist Case for Federal Regimes, 21 J.L. & POL. 187 (2005) (arguing that subnational legislatures do not undermine "democratically accountable local autonomy");
20. Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000) (using historical analysis of Supremacy Clause to challenge both current preemption jurisprudence and "presumption against preemption");
21. Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 HARV. L. REV. 553 (2001) (challenging traditional perspective on "merits of centralized environmental regulation");
22. Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994) (distinguishing federalism from administrative decentralization and arguing that decentralization is sufficient to achieve many benefits usually ascribed to federalism);
23. Robert A. Schapiro, Polyphonic Federalism: State Constitutions in the Federal Courts, 87 CAL. L. REV. 1409 (1999) (defending intersystemic adjudication of state constitutional rights); Schapiro, supra note 6, at 246-249 (arguing that dualist theories of federalism have failed and advancing theory that focuses on "dynamic interaction among states and the national government").
24. See generally Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 MINN. L. REV. 535 (1997) (responding to arguments concerning Revesz's challenge to race-to-bottom rationale).
25. Note, New Evidence on the Presumption Against Preemption: An Empirical Study of Congressional Responses to Supreme Court Preemption Decisions, 120 HARV. L. REV. 1604, 1611 (2007) ("[T]he broad trend in Congress since 1960 has been toward massive federal preemption of state law.").
26. See infra Part II.B (discussing product-design regulation).
27. See infra note 36 and accompanying text (describing exclusive preemption with substitution of federal remedy in 9/11 and nuclear accident contexts).
28. See infra Part II.C (reviewing floor preemption structures). Nevertheless, courts applying the "obstacle" preemption criteria have at times preempted state action despite the existence of savings clauses. See, e.g., Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 347-48 (2001) (distinguishing Medtronic Inc. v. Lohr, 518 U.S. 470, 485 (1996), which allowed common law claims under same statute, with assumption "that Congress does not cavalierly pre-empt state-law causes of action"); Geier v. Am. Honda Motor Co., 529 U.S. 861, 867-68 (2000) (finding conflict preemption in statute containing both express preemption provision and savings clause); California v. Fed. Energy Regulatory Comm'n, 495 U.S. 490, 506-07 (1990) (holding that FERC minimum stream-flow standards preempt California state stream-flow minimums despite savings clause).
29. See infra Part II.D (discussing unitary federal choice).
30. Energy Policy Act of 2005, Pub. L. No. 109-58, § 311(c), 119 Stat. 594, 685-87 (to be codified at 15 U.S.C. § 717b) (amending Natural Gas Act § 3, 15 U.S.C. § 717b).
31. Energy Policy Act of 2005, Pub. L. No. 109-58 § 311(c)(2), 119 Stat. 594, 686-87 (to be codified at 15 U.S.C. § 717b(e)(1)) (amending Natural Gas Act § 3, 15 U.S.C. § 717b) (granting FERC "exclusive authority to approve or deny an application for the siting construction, expansion, or operation of an LNG terminal"). One previous federal law arguably had a similar effect, but it concerned the thornier issue of hazardous material transportation where a multiplicity of local strictures threatened to create an impossible situation for transporters. See Hazardous Materials Transportation Uniform Safety Act of 1990, Pub. L. No. 101-615, 104 Stat. 3244.
32. E.g., Final Rule: Standard for the Flammability (Open Flame) of Mattress Sets, 71 Fed. Reg. 13,472, 13,496-97 (Mar. 15, 2006) (to be codified at 16 C.F.R. pt. 1633) (attempt by Consumer Product Safety Commission to preempt "non-identical" state mattress flammability requirements);
33. Requirements on Content and Format of Labelling for Human Prescription Drug and Biological Products, 71 Fed. Reg. 3922, 3933-36 (Jan. 24, 2006) (to be codified at 21 C.F.R. pts. 201, 314, and 601) (attempt by Food and Drug Administration to preempt state law);
34. Federal Motor Vehicle Safety Standards; Roof Crush Resistance, 70 Fed. Reg. 49,223, 49,245 (Aug. 23, 2005) (to be codified at 49 C.F.R. pt. 571) (attempt by National Highway Traffic Safety Administration to preempt state law);
35. see also Howard L. Dorfman, Vivian M. Quinn & Elizabeth A. Brophy, Presumption of Innocence: FDA's Authority to Regulate the Specifics of Prescription Drug Labeling and the Preemption Debate, 61 FOOD & DRUG L.J. 585, 601-04 (2006) (explaining that federal agencies rely on Geier, 529 U.S. 861, for principle that federal regulations may preempt state tort claims);
36. Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353, 1389-98 (2006) (discussing preemption jurisprudence in area of products liability law);
37. Catherine M. Sharkey, Preemption by Preamble: Federal Agencies and the Federalization of Tort Law, 56 DEPAUL L. REV. 227 (2007) (discussing federal agency attempts to displace allegedly conflicting state regulation or common law actions and remedies).
38. For a recent, thorough survey of numerous areas where industries have recently sought federal regulation, often in an attempt to fend off lawsuits, foreign competitors, and state regulation, see Eric Lipton & Gardiner Harris, In Turnaround, Industries Seek U.S. Regulations, N.Y. TIMES, Sept. 16, 2007, at A1.
39. See infra note 87 and accompanying text.
40. See, e.g., Brief for the United States as Amicus Curiae Supporting Respondent at 10-13, 17-18, Bates v. Dow Agrosciences L.L.C., 544 U.S. 431 (2005) (No. 03-388), 2004 WL 2681684 (arguing that Federal Insecticide and Rodenticide Act preempts state tort claims in absence of savings clause expressly preserving such claims); Brief for the United States as Amicus Curiae Supporting Reversal at 12, Engine Mfrs. Ass'n v. South Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004) (No. 02-1343), 2003 WL 22068761 (arguing that section of Clean Air Act related to motor vehicle control expressly preempts California South Coast Air Quality management rules); Brief for the United States as Amicus Curiae Supporting Petitioner at 16-22, Buckman v. Plaintiffs' Legal Comm., 531 U.S. 341 (2001) (No. 98-1768), 2000 WL 1364441 (arguing that conflict preemption precludes respondents' "fraud-on-the-FDA" claims); Brief for the United States as Amicus Curiae Supporting Affirmance at 15-16, Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (No. 98-1811), 1999 WL 1045.
41. This Article's argument does not rest on some distinctive benefit of the federal nature of the regulatory action, although such arguments have been made and might have merit. See, e.g., William W. Buzbee, Remembering Repose: Voluntary Contamination Cleanup Approvals, Incentives, and the Costs of Interminable Liability, 80 MINN. L. REV. 35, 110-16 (1995) (explaining why federal involvement may be necessary to encourage voluntary environmental clean-up initiatives); Esty, supra note 9, at 613-51 (discussing shortcomings of current presumption in favor of decentralized environmental regulation);
42. Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 YALE L. & POL'Y REV. 67, 99-105 (1996) (detailing public choice reasons why states will underprotect environment).
43. See infra Part III.B.1.
44. Professor Young, in a recent conference paper, similarly criticizes preemption choices by courts, legislatures, and agencies that effectively turn federal statutes into "an inflexible equilibrium . . . [with] the effect of preempting any departure by state law." Ernest A. Young, Federal Preemption and State Autonomy, in FEDERAL PREEMPTION: STATES' POWERS, NATIONAL INTERESTS 249, 265-66 (Richard A. Epstein & Michael S. Greve eds., 2007). Professor Young, however, does not address the floor/ceiling distinction. He concedes that the legislature may at times choose complete preemption, but he advocates a presumption against preemption in the absence of a clear statement. Id. at 250.
45. This is consistent with Ronald Coase's insights about the two-sided nature of nuisance disputes. R. H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 11 (1960) (noting "reciprocal nature" of "harmful effect" problem).
46. See generally George J. Stigler, The Theory of Economic Regulation, BELL J. ECON. & MGMT. SCL., Spring 1971, at 3 (arguing that regulation actually tends to benefit those ostensibly regulated).
47. See Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 539-44 (1983) (arguing that statutes result from legislative compromises to strike balance between different interests).
48. Of course, how one describes these more stringent protections poses its own linguistic challenge. They cannot be "higher," in the sense of allowing a higher level of risk, but alternatively one could describe floors as prohibiting "lower" state or local standards.
49. If the federal government did itself set a standard requiring compliance, it would either be a floor allowing additional state and local regulation, or both a floor and a ceiling, which is what this Article calls a unitary federal choice. Although examples of politically created true ceilings are rare, courts striking down state or local regulation under Dormant Commerce Clause doctrine are effectively enforcing a judicially implied ceiling; some level of state or local regulation is allowed in the absence of federal politically created requirements, but if state or local requirements are too burdensome on commerce or suffer other infirmities, courts will strike them down. In practice, state and local governments can regulate up to the point at which a court will find a violation of the Dormant Commerce Clause. See, e.g., United Haulers Ass'n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 127 S. Ct. 1786, 1796 (2007) (applying Dormant Commerce Clause doctrine and distinguishing other cases in upholding challenged local requirements). For a recent case undertaking preemption analysis of a statute with a preemption clause, but also analyzing the burdens imposed by state law and state law's nondiscriminatory nature in ways analogous to Dormant Commerce Clause jurisprudence, see New York Susquehanna & Western Railway Corp. v. Jackson, No. 07-1675, 2007 WL 2472332 (3d Cir. filed Sept. 4, 2007). In that case. the court reversed the the trial court's preemption finding and remanded for analysis under the court's articulated approach. Id. at 39-40, 47.
50. It remains possible that federal law would set the standard but that other actors could have implementation and enforcement roles. See infra Part II (discussing forms of preemption).
51. Although political scientist Joseph Zimmerman documents eleven preemption permutations, JOSEPH F. ZIMMERMAN, CONGRESSIONAL PREEMPTION: REGULATORY FEDERALISM 108-15 (2005), this Article focuses on the most prevalent forms of preemption choice, especially emphasizing the floor/ceiling choice and its implications in risk regulation settings.
52. Judicial concerns with federal assertions of power impinging on such state and local domains are often evident, especially in the setting of federal environmental regulation. See, e.g., Rapanos v. United States, 126 S. Ct. 2208, 2224 (2006) (plurality opinion) (stating that state and local governments traditionally regulate land use); Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 173-74 (2001) (expressing concern that expanding federal jurisdiction over ponds and mudflats under Migratory Bird Rule would impinge significantly on traditional state power over land and water use); Babbitt v. Sweet Home Chapter of Comtys. for a Great Or., 515 U.S. 687, 728-29 (1995) (Scalia, J., dissenting) (expressing concern with pervasive federal regulation of private land under Endangered Species Act's "takings" provision).
53. 16 U.S.C. §§ 1451-64 (2000); see also William W. Buzbee, Urban Sprawl, Federalism, and the Problem of Institutional Complexity, 68 FORDHAM L. REV. 57, 110-17 (1999) (discussing Coastal Zone Management Act and other federal laws that impinge on state and local land use decisionmaking through conditional federal spending incentives).
54. Gonzales v. Oregon, 546 U.S. 243, 270-71 (2006) ("Even though regulation of health and safety is 'primarily, and historically, a matter of local concern,' there is no question that the Federal Government can set uniform national standards [of medical practice]." (citation omitted) (quoting Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985))).
55. E.g., Food Security Act of 1985 (FSA), Pub. L. No. 99-198, 99 Stat. 1354 (codified in scattered sections of 7, 15, 16, and 21 U.S.C), amended by Food, Agriculture, Conservation, and Trade Act of 1990 (FACTA), Pub. L. No. 101-624, 104 Stat. 3359, and limited through exceptions by Federal Agriculture Improvement Act of 1996 (FAIA), 16 U.S.C. §§ 3822(b)(1)(G)(i)-(iii) (2000) (penalizing farmers who convert wetlands to agricultural purpose under FSA or destroy wetland with purpose of converting it under FACTA, with exceptions added by FAIA); see also David E. Adelman & John J. Barton, Environmental Regulation for Agriculture: Towards a Framework to Promote Sustainable Intensive Agriculture, 21 STAN. ENVTL. L.J. 3, 27-28 (2002) (reviewing agricultural regulation and incentives to consider environmental harms).
56. See generally Daryn McBeth, Wetlands Conservation and Federal Regulation: Analysis of the Provisions of the Food Security Act's Swampbuster Provisions as Amended by the Federal Agriculture Improvement and Reform Act of 1996, 21 HARV. ENVTL. L. REV. 201 (1997) (focusing on "swampbuster" provisions in FSA).
57. See infra note 57 and accompanying text (citing scholarship analyzing state laws prohibiting state standards exceeding federal standards in their stringency).
58. An example of such complete preemption is the Price-Anderson Act, 42 U.S.C. § 2210(n)(2) (2000), which federalized personal injury and property damage claims arising from significant accidents at nuclear power plants. The Price-Anderson Act, in its special support and protection of the nuclear power industry, contains broad preemptive language not only limiting additional state or local regulation, but also preempting common law regimes and displacing state fora in favor of federal courts. Id. §§ 2011-2281; see also El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 482-86 & 484 n.6 (1999) (describing law's resemblance to "complete preemption doctrine"); Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1503-05 (10th Cir. 1997) (discussing history of Price-Anderson Act and how it limits state role in nuclear energy regulation). The Price-Anderson Act is not, however, the only example of complete preemption. See, e.g., National Childhood Vaccine Injury Act of 1986 §§ 2111(a), 2112(a), 42 U.S.C. §§ 300aa-11(a), 300aa-12(a) (federalizing all vaccine injury claims); Air Transportation Safety and System Stabilization Act §§ 403, 405(3), 49 U.S.C. § 40101 (Supp. IV 2005) (substituting federal remedy for tort claims that 9/11 victims and their families might have asserted against airlines). Some statutes are less explicit in their displacement of state regulation, but have been extensively litigated and expansively interpreted by the Supreme Court. E.g., Employee Retirement Income Security Act of 1974 (ERISA) § 514, 29 U.S.C. § 1144 (2000) (federalizing disputes over certain employment related benefits). ERISA has also spawned prolific litigation. See Catherine L. Fisk, The Last Article About the Language of ERISA Preemption?: A Case Study of the Failure of Textualism, HARV. J. ON LEGIS., Winter 1996, at 35, 59 & n.106 (noting that ERISA has generated thousands of preemption cases);
59. see also Jeffrey A. Brauch, ERISA at 25 - and Its Most Persistent Problem, 48 U. KAN. L. REV. 285 (2000) (discussing federal courts' struggle with ERISA);
60. Howard Shapiro, René E. Thorne & Edward F. Harold, ERISA Preemption: To Infinity and Beyond and Back Again? (A Historical Review of Supreme Court Jurisprudence), 58 LA. L. REV. 997 (1998) (discussing Supreme Court's analysis of ERISA preemption).
61. For a discussion contrasting explicitly preemptive statutes and other laws with less preemptive language, see David Vladeck, Preemption and Regulatory Failure, 33 PEPP. L. REV. 95, 97-98 (2005).
62. See infra Part III (discussing preemption choices).
63. 7 U.S.C. § 136v(b) (2000).
64. 7 U.S.C. § 136v(a) (2000). The Supreme Court in 2005 reconciled these provisions by concluding that an array of state statutory and common law claims remained viable despite federal approval of an herbicide's sale and label; fraud and failure-to-warn claims only might be preempted, but that determination required a remand to the lower courts. Bates v. Dow Agrosciences L.L.C., 544 U.S. 431, 449-53 (2005).
65. Thomas W. Merrill, Preemption in Environmental Law: Formalism, Federalism Theory, and Default Rules, in FEDERAL PREEMPTION: STATES' POWERS, NATIONAL INTERESTS, supra note 23, at 177.
66. Id. at 25.
67. E.g., Clean Air Act Subchapter II, Emissions Standards for Moving Vehicles, 42 U.S.C. §§ 7521-7590 (2000).
68. See, e.g., Natural Res. Def. Council, Inc. v. Thomas, 805 F.2d 410 (D.C. Cir. 1986) (holding that 42 U.S.C. § 7521 enables Environmental Protection Agency to implement technology-forcing standards).
69. See 42 U.S.C. § 7543(b)(1), (e)(2)(A) (2000). For discussion of these provisions and the regulatory dynamics they create, see Anne E. Carlson, Federalism, Preemption, and Greenhouse Gas Emissions, 37 U.C. DAVIS L. REV. 281 (2003).
70. U.S.C. §§ 7507, 7543(e)(2)(A) (2000).
71. In Engine Manufacturers Ass'n v. South Coast Management District, 541 U.S. 246 (2004), the Supreme Court gave an expansive reading to these preemptive provisions, interpreting the Clean Air Act's prohibition on state or local setting of automobile "standards" as prohibiting a state air quality management district's imposition of "Fleet Rules" limiting the sorts of vehicles that could be leased or purchased. Id. at 252, 255 (declining to read purchase/sale distinction into text of Clean Air Act). Motor vehicle safety standards are also imposed under a preemptive regime that is explained by concerns about conflicting engineering requirements and economies of scale. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 868-72 (2001) (discussing National Traffic and Motor Vehicle Safety Act's requirements and preemptive effect).
72. See 15 U.S.C. § 2617 (2000) (setting forth Act's preemptive effect and allowing states to further prohibit uses of toxic substances except in manufacturing).
73. As previously discussed, in a few limited areas the federal government has asserted what has been called "complete preemption." Those areas reflect a special solicitude for a particular industry or effort to encourage particular socially beneficial activities by limiting associated liabilities. See supra note 36 and accompanying text.
74. Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196 (1977).
75. See, e.g., Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 366 (2000) (holding that federal law preempted state foreign trade policy regulation toward Burma because local law undermined federal regulatory scheme); Gade v. Nat'l Solid Waste Mgmt. Ass'n, 505 U.S. 88, 96-108 (1992) (broadly finding preemptive impact of Occupational Safety and Health Act in opinion garnering both majority and plurality support).
76. 505 U.S. 144 (1992).
77. See id. at 188 ("The Federal Government may not compel the States to enact or administer a federal regulatory program.").
78. See, e.g., Clean Air Act § 102(a), 42 U.S.C. § 7402(a) (2000) ("The administrator shall encourage cooperative activities by the States and local governments . . . ."); Clean Water Act, 33 U.S.C. § 1251(b) (2000) (same); Endangered Species Act of 1973 § 2(c)(2), 16 U.S.C. § 1531(c)(2) (2000) (same); see also Jonathan H. Adler, Judicial Federalism and the Future of Environmental Regulation, 90 IOWA L. REV. 377, 384-87 & n.35 (2005) (discussing cooperative federalism schemes); Buzbee, supra note 6 (discussing how federal and state interaction influences regulatory innovations and environmental law's content); Glicksman, supra note 9 (same, in article focused on legal developments undercutting cooperative federalism schemes).
79. 42 U.S.C. §§ 7409-10 (2000).
80. 33 U.S.C. § 1342 (2000 & Supp. 2004).
81. § 1342(b) (setting requirements and structure of delegated state permit program).
82. Numerous states, however, have enacted laws that prohibit state regulation from being more stringent than federal standards. Jerome M. Organ, Limitation on State Agency Authority To Adopt Environmental Standards More Stringent than Federal Standards: Policy Considerations and Interpretive Problems, 54 MD. L. REV. 1373, 1376-86 (1995).
83. See, e.g., Marla Cone, U.S. Rules Allow the Sale of Products Others Ban: Chemical-Laden Goods Outlawed in Europe and Japan Are Permitted in the American Market, L.A. TIMES, Oct. 8, 2006, at A1 (discussing California's intent to regulate formaldehyde levels in plywood in absence of comprehensive federal regulation).
84. David M. Driesen, Is Emissions Trading an Economic Incentive Program?: Replacing the Command and Control/Economic Incentive Dichotomy, 55 WASH. & LEE L. REV. 289, 297-98 (1998);
85. Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 DUKE L.J. 795, 819 (2005);
86. see also Jonathan Remy Nash, Framing Effects and Regulatory Choice, 82 NOTRE DAME L. REV. 313, 320 (2006) (stating that most command-and-control regulation imposes performance standard rather than requiring use of specific technology).
87. See Victor B. Flatt, This Land Is Your Land (Our Right to the Environment), 107 W. VA. L. REV. 1, 38 (2004) (stating that considering aggregate environmental data ignores harm to certain populations);
88. Richard J. Lazarus, Pursuing "Environmental Justice": The Distributional Effects of Environmental Protection, 87 NW. U. L. REV. 787, 796 (1993) (finding past studies strongly suggestive of unequal distribution of benefits of environmental regulations).
89. The Clean Water Act contains numerous savings clauses. The statute's opening "declaration of goals and policy" states that it is "the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use . . . of land and water resources, and to consult with" the EPA's administrator. 33 U.S.C. § 1251(b) (2000). At times the Supreme Court has looked at broad declarations regarding intent to preserve state power as a ground to limit federal power, even in massive new federal anti-pollution legislation like the Clean Water Act. See, e.g., Rapanos v. United States, 126 S. Ct. 2208, 2224 (2006) (plurality opinion) (arguing for limiting Clean Water Act's application based on section 1251(b)'s declaration that states' rights should be preserved); Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172-74 (2001) (restricting federal agency's power under Clean Water Act in part to protect states' rights). The intent not to displace state riparian rights law is made with unusual clarity: The Act states that it is the "policy of Congress that the authority of each State to allocate quantities of water shall not be superseded, abrogated or otherwise impaired . . . ." § 1251(g). Section 1365(e) explicitly preserves "any right which any person . . . may have under any statute or common law to seek enforcement of any effluent standard or to seek any other relief." This provision was critical to the Supreme Court's affirmation in International Paper Co. v. Ouellette, 479 U.S. 481 (1987), that state common law actions for water pollution harms were not completely preempted by the Clean Water Act. Id. at 496-500. The Ouellette line of cases has confused economists and law professors alike. See Andrew McFee Thompson, Free Market Environmentalem and the Common Law: Confusion, Nostalgia, and Inconsistency, 45 EMORY L.J. 1329, 1344-47 (1996) (critiquing and explaining misreadings of Ouellette in work by law and economics scholars);
90. see also Alexandra B. Klass, Common Law and Federalism in the Age of the Regulatory State, 92 IOWA L. REV. 545, 560-65 (2007) (discussing Ouellette as preserving state common law claims rooted in source state's law).
91. 33 U.S.C. § 1370 (2000).
92. See Clean Air Act § 1(a)(3), 42 U.S.C. § 7401(a)(3) (2000); Resource Conservation and Recovery Act (RCRA) § 1002(a)(4), 42 U.S.C. § 6901(a)(4) (2000).
93. Compare 42 U.S.C. § 6929 (2000) (allowing "more stringent" regulation under RCRA), with 42 U.S.C. § 7416 (2000) (allowing additional state regulation of air pollution, other than regarding "moving sources," as long as it is not "less stringent" than federal requirements).
94. Glicksman, supra note 9, at 737-43; Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 MD. L. REV. 1141, 1175 (1995).
95. MICHAEL B. GERRARD, WHOSE BACKYARD, WHOSE RISK: FEAR AND FAIRNESS IN TOXIC AND NUCLEAR WASTE SITING 51-52 (1994) (describing latitude under federal and state laws for communities to reject disliked facilities and assessing means to overcome rejection of needed sites).
96. 42 U.S.C. § 7410 (2000).
97. 427 U.S. 246, 256-57 (1976).
98. Id.
99. See supra note 36 (identifying areas of "complete preemption" and their rationales).
100. This reluctance led to Massachusetts v. EPA, 127 S.Ct. 1438 (2007), which held that the EPA had statutory authority to regulate greenhouse gases, id. at 1459-60, and rejected as inadequately rooted in statutory criteria and science the agency's proffered justifications for not doing so, id. at 1462-63.
101. See Kirsten H. Engel & Scott R. Saleska, Subglobal Regulation of the Global Commons: The Case of Climate Change, 32 ECOL. L.Q. 183 (2005) (acknowledging difficulty of regulating global challenges like climate change, and using game theoretic model to explain why state and local regulation is nevertheless occurring); see also Engel, supra note 9 (exploring same developments, but linking them to larger benefits of retaining latitude for dynamic interaction of different levels of government).
102. Steven Mufson & Juliet Eilpern, Energy Firms Come to Terms with Climate Change, WASH. POST, Nov. 25, 2006, at A1.
103. Id.
104. See, e.g., Avery Palmer, Panel Votes To Compel EPA Ruling on California Plan, 65 CQ WEEKLY 3585, 3585 (2007), available at http://library.cqpress.com/cqweekly/weeklyreport110-000002567017 (reporting that Senate committee passed legislation to compel decision from EPA as to whether California's stricter regulation was allowed);
105. Michael Burnham, Climate: Business Roundtable Calls for GHG Emissions Cuts, E&E NEWS PM, July 17, 2007, http://eenews.net/eenewspm/ print/2007/07/17/2 (discussing positions of industry and President regarding greenhouse gases emissions debate);
106. Alex Kaplun, Climate: Rep. Dingell Defends Plan To Limit State GHG Authority, E&E NEWS PM, June 7, 2007, http://www.eenews.net/ eenewspm/print/2007/06/07/1 (reporting on debate as to whether federal law should preempt any state power to regulate motor vehicle greenhouse gas emissions, such as whether California and states following California should be allowed to choose different strategies, and reporting on auto industry concern with "50 different standards"). A similar emergence of industry support for a preemptive federal response when confronted with diverse state regulation occurred earlier in the modern environmental law era. Industry sought preemptive federal regulation of air and water pollution sources but, as noted, ultimately obtained little relief other than car pollution regulation.
107. See RICHARD N.L. ANDREWS, MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY 208-09 (2d ed. 2006) (discussing growing industry support for federal environmental law in light of states' enactment of environmental laws); supra text accompanying notes 42-46 (discussing nearly complete federal preemption of state regulation in area of automobile emissions and tendency for industry to favor such centralization).
108. The well publicized battle in Louisiana over the permitting of a Shintech facility is a good example of state interest in jobs and tax revenues. See, e.g., EPA, In re Shintech, Inc., Permit Nos. 2466-VO, 2467-VO, 2468-VO, Order Partially Granting and Partially Denying Petitions for Objection to Permits (Sept. 10, 1997), available at http://www.epa.gov/Region7/ programs/artd/air/title5/t5memos/shin1997.pdf (identifying various technical deficiencies in meeting environmental standards overlooked by Louisiana when granting permits for polluting facilities); EPA, In re La. Dept. of Envtl. Quality/Permit for Proposed Shintech Facility, Draft Revised Demographic Information for Title VI Administrative Complaint File No. 4R-97-R6 (Apr. 1998), available at http://www.epa.gov/ocrpage1/docs/shintech/apr98/cover48.pdf (report regarding Title VI administrative complaint filed by Tulane Environmental Law Clinic exposing probability that proposed Shintech facility's pollution would disparately impact African Americans). For a general background of the Shintech matter, see Robert R. Kuehn, Denying Access to Legal Representation: The Attack on the Tulane Environmental Law Clinic, 4 WASH. U. J.L. & POL'Y 33, 38-51 (2000).
109. See also Vicki Been, "Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine, 91 COLUM. L. REV. 473, 512-14 (1991) (discussing interjurisdictional competition for businesses);
110. Michael B. Gerrard, Fear and Loathing in the Siting of Hazardous and Radioactive Waste Facilities: A Comprehensive Approach to a Misperceived Crisis, 68 TUL. L. REV. 1047, 1149-55 (1994) (discussing examples of cities near hazardous waste facilities where facilities dominate local economy and noting that siting efforts are most successful when perceived risks of facilities are low).
111. See Orlando E. Delogu, "NIMBY" Is a National Environmental Problem, 35 S.D. L. REV. 198, 207-08 & 208 n.30 (1990) ("If any state or local government has the unilateral power to prevent the construction of federally approved disposal facilities, then every other state or local government in the nation would possess the same ability. The likely proliferation of bans . . . would aggravate the hazards Congress sought to alleviate . . . ."
112. (quoting William L. Andreen, Defusing the "Not in My Back Yard" Syndrome: An Approach to Federal Preemption of State and Local Impediments to the Siting of PCB Disposal Facilities, 63 N.C. L. REV. 811, 847 (1985));
113. Kirsten Engel, Reconsidering the National Market in Solid Waste: Trade-offs in Equity, Efficiency, Environmental Protection, and State Autonomy, 73 N.C. L. REV. 1481, 1491 & n.48 (1995) (noting that failure to site new facilities is generally attributed to NIMBY problem);
114. Michael B. Gerrard, The Victims of NIMBY, 21 FORDHAM URB. L.J. 495, 496, 511 (1994) (identifying waste facilities as target of NIMBY phenomenon and asserting that local opposition holds down number of waste disposal facilities).
115. For a general discussion of free-rider and coordination problems, see MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 9-22 (1971);
116. Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 HARV. L. REV. 553, 563-68 (2001);
117. and Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 944-52 (1996).
118. Section 311(c)(2) of the Energy Policy Act of 2005 grants FERC the "exclusive authority to approve or deny an application for the siting, construction, expansion, or operation of a [LNG] terminal." Pub. L. No. 109-58, § 311(c)(2), 119 Stat. 594, 686 (codified at 15 U.S.C. § 717b(e)(1) (Supp. 2005)). Section 313(a)(3) of the Act designates FERC as the "lead agency for the purposes of coordinating all applicable Federal authorizations [necessary to site Liquified Natural Gas terminals] and for the purposes of complying with the National Environmental Policy Act of 1969." § 717n(b)(1). FERCs choice, in turn, must be preceded by opportunities for comment by state and local governments and others, but the ultimate decision whether to site a LNG facility is now federal. Section 311(d) of the Act requires that FERC "consult with [the appointed] state agency regarding state and local safety considerations prior to issuing an order" to approve the siting of a LNG terminal. § 717b-1. Furthermore, the state agency is given the option to submit an "advisory report" regarding state and local safety concerns to FERC, and FERC must "review and respond specifically to the issues raised" before approving the LNG terminal. § 717b-1. For close analysis of these provisions, see Angela J. Durbin, Comment, Striking a Delicate Balance: Developing a New Rationale for Preemption While Protecting the Public's Role in Siting Liquified Natural Gas Terminals, 56 EMORY L.J. 507, 520-22 (2006).
119. See supra note 79; see also Jacob Dweck, David Wochner & Michael Brooks, Liquefied Natural Gas (LNG) Litigation After the Energy Policy Act of 2005: State Powers in LNG Terminal Siting, 27 ENERGY L.J. 473, 481 (2006) (noting that Act granted FERC exclusive authority over siting of LNG terminals and displaced traditional state roles);
120. James B. Lebeck, Liquefied Natural Gas Terminals, Community Decisionmaking, and the 2005 Energy Policy Act, 85 TEX. L. REV. 243, 245, 250-53 (2006) (outlining FERCs decisionmaking authority and process, including state's role during notice-and-comment phase).
121. In the Hazardous Materials Transportation Uniform Safety Act of 1990, federal law precluded state and local governments from imposing their own strictures on the movement of hazardous wastes through their jurisdictions. Pub. L. No. 101-615, 104 Stat. 3244 (1990) (codified at 49 U.S.C. App. §§ 1801-1813).
122. See GERRARD, supra note 66, at 52 & n.46 (noting that some states' laws create special siting boards to act on facility proposals and allow for preemption of local authority).
123. See supra Part II.B.
124. See Merrill, supra note 40 (discussing such provisions); Vladeck, supra note 36, at 98 & n.16 (same).
125. Sharkey, supra note 18, at 227-28. As the Consumer Products Safety Commission recently explained with respect to its mattress flammability regulation, "[s]tate requirements . . . have the potential to undercut the Commission's uniform national flammability standard, create impediments for manufacturers . . ., establish requirements that make dual state and federal compliance physically impossible, and cause confusion among consumers . . . ." Final Rule: Standard for the Flammability (Open Flame) of Mattress Sets, 71 Fed. Reg. 13,472, 13,496-97 (Mar. 15, 2006) (to be codified at 16 C.F.R. pt. 1633).
126. The Commission made clear its intent to preempt all state activity, including common law claims. The FDA asserted similar preemptive impact in its new rule about drug labeling. See Allison M. Zieve & Brian Wolfman, The FDA's Argument for Eradicating State Tort Law: Why It Is Wrong and Warrants No Deference, 34 Prod. Liab. & Safety Rep. (BNA) No. 12, at 308 (Mar. 27, 2006) (questioning legality and wisdom of FDA's declaration). The National Highway Traffic Safety Administration (NHTSA) recently asserted similar preemptive power in connection with its proposed roof strength regulations.
127. See Rob Ammons & David George, Tort Reform by Regulation: The National Highway Traffic Safety Administration Attempts To Preempt State-Tort Lawsuits with Its Proposed Roof-Strength Regulation, 58 ADMIN. L. REV. 709, 714-15 (2006) (discussing NHTSA's contention that its safety standard, if adopted, will preempt state tort lawsuits).
128. See supra Part II.C (discussing delegated programs and savings provisions in federal environmental laws).
129. Relying on Public Law 109-295, an appropriations bill regarding chemical facility risks that empowered DHS to issue regulations, DHS proposed "Chemical Facility Anti-Terrorism Standards." Advance Notice of Rulemaking Regarding Chemical Facility Anti-Terrorism Standards, 71 Fed. Reg. 78,276, 78,276 (proposed Dec. 28, 2005) (to be codified at 6 C.F.R. pt. 27) (proclaiming agency's authority to regulate as derived from Department of Homeland Security Appropriations Act of 2007, Pub. L. No. 109-295, § 550, 120 Stat. 1355, 1388-89 (to be codified at 6 U.S.C. § 121)). These proposed regulations sought to preempt "conflicting" state and local law, which DHS defined to include common law regimes. After citing relevant cases and approaches, DHS explained that preemption choices here must include attention to the "balance" struck in the law, strongly implying that even additional risk-reduction efforts by state and local governments or by common law litigation would be preempted. Id. at 78, 292-93. Section 550 preempts State laws and laws of their political subdivisions that conflict with the regulations promulgated thereunder. . . . In Section 550, Congress created a carefully balanced regulatory relationship between the Federal government and chemical facilities. . . . But Section 550 also compels the Department to preserve chemical facilities' flexibility to choose security measures to reach the appropriate security outcome. Id. at 78,293 (citations omitted). ("[Regulations [issued under this statute] shall permit each such facility, in developing and implementing site security plans, to select layered security measures that, in combination, appropriately address the vulnerability assessment and the risk-based performance standards for security for the facility."). A state measure frustrating this balance will be preempted. Id.
130. Editorial, Chemical Insecurity, N.Y. TIMES, Jan. 23, 2007, at A18.
131. See Interim Final Rule Announcing Chemical Facility Anti-Terrorism Standards, 72 Fed. Reg. 17,688, 17,725-27 (to be codified at 6 C.F.R. pt. 27); Editorial, supra note 88 (discussing proposal's language).
132. In its Federal Register discussion, DHS concedes that its proposal's discussion of the need to retain the "balance" struck by the proposed regulation was "potentially too broad." Interim Final Rule, 72 Fed. Reg. at 17,727. Instead, the final regulation's explanation is that only conflict preemption, not field preemption, is meant to be asserted. Id. The regulation "is only meant to indicate that the regulation is not to be conflicted by, interfered with, hindered by or frustrated by State measures, under long-standing legal principles." Id. at 17,726. The agency retains its view that it can appropriately make such determinations in actual application, subject to judicial review. Such applied conflict preemption determinations would ordinarily follow opportunity for input from the affected state and, time permitting, public notice and comment as well. Id. at 17,727. The final regulatory discussion does not allude to regulatory versus common law conflict or set forth what sorts of state or local regulation might raise such conflicts, although the agency does state that it "does not intend to preempt existing health, safety and environmental regulations." Id. Regulations to "prevent terrorist attacks" or "regulate security at chemical facilities" are characterized as more distinctly federal, id. at 17,726, and DHS indicates that new state or local risk, health, or environmental regulations with such a focus would more likely be held preempted. Id. at 17,727. Of potential significance is language in the actual regulation declaring that potentially preempted state actions include - in addition to conflicting statutes, regulations, or administrative actions - "any . . . common law standard of a State or any of its political subdivisions" that the agency views as raising such a conflict. Id. at 17,739. In addition, despite the Federal Register discussion disavowing anything other than an intent to preserve the possibility of conflict preemption, the actual regulation still contains references to state or local laws, regulations, or actions that not only "conflict" with federal requirements but also "hinder, pose an obstacle to or frustrate the purposes of this Part." Id.
133. As of the drafting of this Article, the fate of these competing provisions was unresolved. Compare Stephen Labaton, Congress Passes Increase in the Minimum Wage, N.Y. TIMES, May 25, 2007, at A12 ("The National Association of Manufacturers succeeded in having a provision stricken that would have blocked federal officials from lowering tougher state safety standards for chemical plants."),
134. with Linda Roeder, House-passed Homeland Security Bill Includes Chemical Security State Preemption, 31 Chem. Reg. Rep. (BNA) No. 26, at 609 (June 25, 2007) ("State and local governments would be able to set chemical security standards that are more stringent than federal requirements under a provision in the fiscal year 2008 Department of Homeland Security appropriations bill passed by the House of Representatives."),
135. and Jeffrey H. Birnbaum, Chemical Makers and Trial Lawyers Square Off over Iraq Spending Bill, WASH. POST, Apr. 10, 2007, at A15 (discussing these provisions and reporting that President Bush has indicated that he opposes spending bill language providing states latitude to "impos[e] extra security requirements on the nation's chemical plants").
136. Compare Bates v. Dow Agrosciences, L.L.C., 544 U.S. 431, 444 (2005) (finding no or limited preemptive impact), and Medtronic, Inc. v. Lohr, 518 U.S. 470, 488-89 (19%) (same), with Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist, 541 U.S. 246, 255, 258 (2004) (finding broad preemptive impact of provisions regarding motor vehicle emissions to preclude local fleet purchasing mandates), Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 347-48 (2001) (finding state tort claims impliedly preempted in case of regulation not historically handled by state), Geier v. Am. Honda Motor Co., 529 U.S. 861, 866-69 (2000) (plurality opinion) (indicating that savings clause does not foreclose possibility of implied conflict preemption), and Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98-99 (1992) (finding broad implied preemptive impact due to conflicts with purpose of federal statute). See generally Issacharoff & Sharkey, supra note 18, at 1390-98 (discussing partial federalization of areas historically governed by state law); Vladeck, supra note 36, at 98-100 (discussing conflicting jurisprudence of preemption of state damage actions).
137. While not evident in major provisions of federal law, yet another interjurisdictional choice is a federal default standard. Such a standard would presumptively set requirements for state governments, but states could, at least to a limited extent, deviate from the default rule. To the author's knowledge, a risk-level default standard does not exist, but federal procedural requirements for states seeking to take over delegated programs have a similar characteristic. Federal statutory provisions under the Clean Air and Water Acts and their implementing regulations set an array of requirements for states. States need not, however, adopt identical provisions; they are allowed some voice in the overall way they design their own delegated program. State SIP planning under the Clean Air Act has a similar quality. Federal statutory and regulatory provisions set forth basic requirements for SIPs, which include an increasingly stringent set of mandatory SIP elements in specified "nonattainment" areas not meeting federal ambient air quality standards. From this basic federal menu, states can choose strategies and their preferred degree of stringency for their selected pollution sources. Relatedly, laws allowing states to take over federal powers to grant exemptions act as a form of ceiling, but with some de facto room for state laxity. See Glicksman, supra note 9, at 798-800 (discussing how federal transportation law and National Environmental Policy Act create authority for state grants of exemptions).
138. Nelson, supra note 9, at 232.
139. See generally Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 349-55 (1998) (arguing for continuous generation of new information, adjustment, and improvement in response to changing conditions, systematic feedback loops, and rolling standards of best practice in constitutional interpretation);
140. Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1 (1997) (outlining limits of then-existing collaborative governance projects and proposing new challenges to traditional models of agency discretion and experiment);
141. Bradley C. Karkkainen, Environmental Lawyering in the Age of Collaboration, 2002 WIS. L. REV. 555, 567-71 (2002) (detailing new form of innovation called "collaborative ecosystem management" that steers away from rule enforcement model and toward locally and regionally tailored solutions with broad coordination and public accountability);
142. Bradley C. Karkkainen, "New Governance" in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 MINN. L. REV. 471 (2004) (discussing same legal innovations under umbrella of "new governance" and critiquing Professor Lobel's lumping together of these models under one general approach, and referring to them as loosely related family of alternative approaches to governance with often competing schools of thought regarding reflexivity and softness in law);
143. James S. Liebman & Charles F. Sabel, A Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform, 28 N.Y.U. REV. L. & SOC. CHANGE 183, 189-90, 189 n.23 (2003) (arguing for routine revision and reevaluation of institutional processes in public school systems);
144. Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342, 396, 461 (2004) (discussing myriad of legal innovations and methods of governance that allow for uncertainty and diversity, including experimentalist literature, characterizing them together as "the renew deal");
145. Eric W. Orts, Reflexive Environmental Law, 89 NW. U. L. REV. 1227, 1252-68 (1995) (introducing "reflexive," as opposed to conventional, model of environmental regulation);
146. Charles Sabel et al., Beyond Backyard Environmentalem, in BEYOND BACKYARD ENVIRONMENTALEM 3, 6-7, 13-15 (Joshua Cohen & Joel Rogers eds., 2000) (describing rolling rule regimes);
147. Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 177 HARV. L. REV. 1015, 1082-94 (2004) (describing public law cases as examples of destabilization rights to disentrench failing institutions and arguing that these cases demonstrate move toward ongoing stakeholder negotiations, rolling rule regimes, and transparency);
148. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458, 479-89 (2001) (outlining interactive structural approach for trial courts to address problems of compliance in employment discrimination).
149. For an earlier work exploring similar issues, see IAN AYRES & JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE (Donald R. Harris et al. eds., 1992).
150. See Sabel et al., supra note 94 (discussing rolling rule regimes); Dorf & Sabel, supra note 94 (same).
151. For summaries of the various preemption tests, see, for example, Crosby v. National Foreign Trade Council, 580 U.S. 363, 372-73 (2000); Gade, 505 U.S. at 98; Mary J. Davis, Unmasking the Presumption in Favor of Preemption, 53 S.C. L. REV. 967, 970 (2002);
152. Viet D. Dinh, Reassessing the Law of Preemption, 88 GEO. L.J. 2085, 2097-2107 (2000); and Nelson, supra note 9, at 226-29.
153. One scholar has embraced the preclusive impact of federal regulatory compliance while, in recent works, criticizing federal floor preemption because it displaces state and citizen choice offered by diverse state regulatory regimes. Compare Richard B. Stewart, Regulatory Compliance Preclusion of Tort Liability: Limiting the Dual-Track System, 88 GEO. L.J. 2167, 2176-86 (2000) [hereinafter Stewart, Preclusion of Tort Liability] (arguing in favor of regulatory compliance defense),
154. with Richard B. Stewart, Environmental Quality as a National Good in a Federal State, 1997 U. CHI. LEGAL F. 199, 207-08 (concluding that adherents to race-to-the-bottom rationale for federal environmental regulation have failed to carry their "burden of proof").
155. Cf. Michael S. Greve, Business, the States, and Federalism's Political Economy, 25 HARV. J.L. & PUB. POL'Y 895, 903 & n.25 (2002) (arguing that "business will view state regulation as tolerable and even advantageous" when absence of federal preemptive regulatory floors allows states to compete by reducing regulation).
156. Young, supra note 23, at 263. He continues by observing that "it should not be surprising that conservatives favor it and liberals oppose it." Id.
157. Issacharoff & Sharkey, supra note 18, at 1354.
158. This, however, is virtually never explored as a rationale in statements of agencies and courts. Scholars linked to the American Enterprise Institute address it more forthrightly. See, e.g., Greve, supra note 98 (advocating against proliferation of regulations).
159. Stewart, supra note 49, at 1211-12, 1212 n.66.
160. See Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking the "Race-to-the-Bottom" Rationale for Federal Environmental Regulation, 67 N.Y.U. L. REV. 1210 (1992).
161. Id.
162. Id. at 1244-47. When critics interpreted him to be claiming that levels of environmental protection might not drop, Dean Revesz clarified that he does not necessarily dispute that environmental standards may drop in response to competition, but is arguing that federal standard setting might induce a reduction in social welfare: I argue that even if states systematically enacted suboptimally lax environmental standards, federal environmental regulation would not necessarily improve the situation. If states cannot compete over environmental regulation because it has been federalized, they will compete along other regulatory dimensions, leading to suboptimally lax standards in other areas, or along the fiscal dimension, leading to the underprovision of public goods. Thus, the reduction in social welfare implicit in race-to-the-bottom arguments would not be eliminated merely by federalizing environmental regulation: the federalization of all regulatory and fiscal decisions would be necessary to solve the problem. Id. at 540; see also id. at 539 (acknowledging that, absent federal intervention, interaction between states could lead to underregulation).
163. Professor Kirsten H. Engel, State Environmental Standard-Setting: Is There a Race and Is It "To the Bottom"?, 48 HASTINGS L.J. 271 (1997), convincingly showed, using both theoretical and empirical analysis drawing on survey data, that state regulators will drop environmental standards in trying to attract business and will look closely at other states' standards and match them unless federal standards preclude competitive standard setting.
164. As Professor Stewart argues: This presumption [in favor of decentralization] serves utilitarian values because decisionmaking by state and local governments can better reflect geographical variations in preferences for collective goods like environmental quality and similar variations in the costs of providing such goods. Noncentralized decisions also facilitate experimentation with differing governmental policies, and enhance individuals' capacities to satisfy their different tastes in conditions of work and residence by fostering environmental diversity. Important nonutilitarian values are also served by noncentralized decisionmaking. It encourages self-determination by fragmenting governmental power into local units of a scale conducive to active participation in or vicarious identification with the processes of public choice. This stimulus to individual and collective education and self-development is enriched by the wide range of social, cultural and physical environments which noncentralized decisionmaking encourages. Stewart, supra note 49, at 1210-11.
165. Statutory language leaves the impression that industry-wide, technology-based standards leave little room for such tailoring, but in juggling sometimes clashing requirements, regulators that issue permits often engage in some facility-specific tailoring. Environmental quality-based standards such as the Clean Air Act SIP program leave broad tailoring discretion. See supra Part II.C.
166. Many states, however, have enacted statutes that prohibit state regulators from promulgating any standards more stringent than the federal floor. See Organ, supra note 57, at 1376. In those states, the initial federal floor becomes the unitary federal choice due to the combination of federal and state action. Somewhat counterintuitively, it is possible that some states with a preference for protective regulation could be harmed by a federal embrace of similar protections. Typically, risk regulation will create some social benefits but will also come with costs causing states to embrace federal regulation that would reduce the risk of losing business to more lax jurisdictions. This is the risk motivating states discussed in Organ, supra note 57, at 1388-89. It remains possible, however, that some states would see benefits in creating a distinctively protective or low-risk environment. They might want to be seen as especially "green" or high quality of life jurisdictions, or they might be able to create low-risk environments at lower cost than other jurisdictions. For such states, a uniform, federally imposed standard might reduce those states' comparative advantage.
167. Robert L. Rabin, Reassessing Regulatory Compliance, 88 GEO. L.J. 2049, 2059 (2000) (noting that, for formal and policy reasons, courts that reject preemption will not examine regulatory compliance defense);
168. Alan Schwartz, Statutory Interpretation, Capture, and Tort Law: The Regulatory Compliance Defense, 2 AM. L. & ECON. REV. 1, 2-3 (2000) (explaining current state of preemption doctrine prior to advocating expansion of regulatory compliance defense).
169. See, e.g., Schwartz, supra note 110, at 47 (concluding that federal statutes should contain presumption of full substantive preemption, permitting complete regulatory compliance defense). I acknowledge my debt here to Professor Bernard Bell for sharing, in an email exchange, thoughts about the regulatory compliance defense.
170. See, e.g., Rabin, supra note 110, at 2050 (discussing RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 4(b) (1997), which considers compliance but does not deem it conclusive); Schwartz, supra note 110, at 3 (detailing majority view that compliance with federal regulation is not exculpatory as matter of law, but simply "relevant evidence for a jury to consider").
171. Cf. Schwartz, supra note 110, at 17 (contending that lack of national safety standard causes firms to forego production of useful products); Stewart, Preclusion of Tort Liability, supra note 97, at 2177-78 (arguing that not allowing regulatory compliance defense burdens firms by imposing a duplicative system of review of agencies' decisions by unreliable and inconsistent jurors across country).
172. Professor Huber posits that regulatory uncertainties and the risks of large tort liabilities will fail to provide the optimal incentives to manufacturers. Peter Huber, Safety and the Second Best: The Hazards of Public Risk Management in the Courts, 85 COLUM. L. REV. 277, 316-17 (1985).
173. This argument has engendered debate. See, e.g., Clayton P. Gillette & James E. Krier, Risk, Courts, and Agencies, 138 U. PA. L. REV. 1027, 1057 (1990) (positing that court-driven liability helps treat risk producers evenhandedly); Joseph A. Page, Deforming Tort Reform, 78 GEO. L.J. 649 (1990)
174. (criticizing PETER W. HUBER, LIABILITY: THE LEGAL REVOLUTION AND ITS CONSEQUENCES (1988));
175. Robert A. Prentice & Mark E. Roszkowski, "Tort Reform" and the Liability "Revolution": Defending Strict Liability in Tort for Defective Products, 27 GONZ. L. REV. 251, 276 n.137 (1991/92) (discussing empirical research).
176. See Stewart, Preclusion of Tort Liability, supra note 97, at 2171-73 (claiming that evidence suggests that jury trial system results in overdeterrence).
177. Lars Noah, Rewarding Regulatory Compliance: The Pursuit of Symmetry in Products Liability, 88 GEO. L.J. 2147, 2153 (2000) ("As the decisionmakers empowered by the citizenry to set safety standards, legislatures and regulatory agencies select the levels of product risk that they deem appropriate based on scientific, economic, and - yes - political considerations.");
178. Stewart, Preclusion of Tort Liability, supra note 97, at 2173 (supporting regulatory preclusion partially because of agencies' abilities to evaluate costs and benefits).
179. Rabin, supra note 110, at 2068-70 (showing how, even without capture dynamics, regulators can miss risks that tort system identifies).
180. Professor Noah argues that federal agencies sometimes seek to identify a product's optimal, not minimal, features when promulgating a standard. Noah, supra note 116, at 2152.
181. See Rabin, supra note 110, at 2068-70 (noting that breast implant manufacturing and tobacco litigations revealed important information to public).
182. See Thomas O. McGarity, The Regulation-Common Law Feedback Loop in Non-Preemptive Regimes, in PREEMPTION CHOICE: THE THEORY, LAW, AND REALITY OF FEDERALISM'S CORE QUESTION (William W. Buzbee ed., forthcoming 2008) (manuscript at 6-7, 14-16, on file with the New York University Law Review) (noting that litigation is valuable source of information because discovery process opens company files and settlement agreements sometimes require litigants to perform new scientific tests).
183. For a work advocating latitude for tort claims for harms caused by pesticides, see Alexandra B. Klass, Pesticides, Children's Health Policy, and Common Law Tort Claims, 7 MINN. J. L. SCI. & TECH. 89 (2005). Additional works discuss feedback interactions with an emphasis on tort claims and industry learning.
184. See, e.g., David A. Hyman & Charles Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?, 90 CORNELL L. REV. 893, 919-20 (2005) (describing wave of malpractice lawsuits and negative publicity surrounding surgical anesthesia that prompted changes to American Society of Anesthesiologists' monitoring guidelines and standards);
185. Mary L. Lyndon, Tort Law and Technology, 12 YALE J. ON REG. 137, 163-65 (1995) (denoting distinct benefits of having both tort law and agency law);
186. Joseph Frueh, Comment, Pesticides, Preemption, and the Return of Tort Protection, 23 YALE J. ON REG. 299, 308 (2006) (discussing how tort litigation provides feedback to manufacturers of pesticides).
187. Interstate externalities and public choice pathologies are distinct rationales for federal regulation. See Revesz, supra note 103, at 1222-24.
188. Two Federalist Papers attributed to James Madison capture well the need to rely on government, yet anticipate and create structures (such as federalist structures) to counter human and institutional flaws. As stated in Federalist 51: If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to control itself. THE FEDERALIST NO. 51, at 252 (James Madison) (Terence Ball ed., 2003).
189. In Federalist 55, Madison states: As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust: So there are other qualities in human nature, which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form. THE FEDERALIST NO. 55, at 273 (James Madison)
190. See supra notes 3-5 and accompanying text (discussing and citing cases where Justices' presumptions about federal and state roles influence their disparate views of appropriate federalism case outcomes).
191. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543 (1954) (arguing that role of states in national political process provides sufficient protection against encroachment of national legislation, thereby making judicial protection unnecessary).
192. But see DANIEL J. ELAZAR, AMERICAN FEDERALISM: A VIEW FROM THE STATES 185 (3d ed. 1984) (describing how state legislatures are constrained in efforts to influence state/federal cooperative programs);
193. Larry Kramer, Understanding Federalism, 47 VAND. L. REV. 1485, 1503-14 (1994) (criticizing Wechsler's theory);
194. H. Geoffrey Moulton, Jr., The Quixotic Search for a Judicially Enforceable Federalism, 83 MINN. L. REV. 849, 911-12 (1999) (criticizing political safeguards theory).
195. Ernest A. Young, The Rehnquist Court's Two Federalisms, 83 TEX. L. REV. 1, 73, 79 (2004) (discussing criticisms of Wechsler but also noting some state and local governments' effective efforts in Washington and commenting that they "have also, at least to some extent, learned to function in Washington much like other interest groups").
196. See supra notes 107-09 and accompanying text.
197. As noted supra note 109, it is also possible that a state preferring a low-risk environment, and able to achieve it at low cost, might lose some interjurisdictional advantage if all states were forced by a federal standard to meet that protective state's preferred level of risk. More often, however, states preferring lower risk or cleaner environments prefer a federal standard that will protect them against race-to-the-bottom dynamics and attendant economic losses. See generally Revesz, supra note 103; Engel & Saleska, supra note 72.
198. See, e.g., Driesen, supra note 59, at 300-01 ("Use of the term 'command and control' to describe . . . technology-based regulation [is misleading]."); Sabel & Simon, supra note 94, at 1019 (characterizing command-and-control regulation as "prescrib[ing] the inputs and operating procedures of the institutions they regulate," and calling for general standards that "express the goals the parties are expected to achieve"); Rena I. Steinzor, Reinventing Environmental Regulation: The Dangerous Journey from Command to Self-Control, 22 HARV. ENVTL. L. REV. 103, 114-16 (1998) (differentiating between health-based and technology-based standards in context of command-and-control regulation).
199. E.g., Clean Air Act § 111, 42 U.S.C. § 7411(b)(5), (h) (2000) (stating that Act does not authorize or require particular technological design standards for new and modified stationary sources of pollution but authorizing "design, equipment," or other more rigid regulatory forms if "it is not feasible to prescribe or enforce a standard of performance"); see also 42 U.S.C. § 7412(h) (2000) (requiring emissions regulations for hazardous air pollutants to be performance standards unless they are "not feasible," in which case "design, equipment, work practice, or operational standard[s]" can be used).
200. See Nathaniel O. Keohane, Richard L. Revesz & Robert N. Stavins, The Choice of Regulatory Instruments in Environmental Policy, 22 HARV. ENVTL. L. REV. 313, 346-50 (1998) ("[Economic theory] explains why private firms . . . may have a strong preference for command-and-control standards.").
201. Industry will still be tempted to use the means federal regulators identified as best, but that choice is rooted in risk aversion, not a mandate.
202. See, e.g., Clean Air Act §§ 165, 169, 42 U.S.C. §§ 7475, 7479 (2000) (setting forth preconstruction permit requirement that new and modified sources achieve emission levels commensurate with best available technology, as determined on "case-by-case" basis); Clean Air Act §§ 171, 173, 42 U.S.C. §§ 7501, 7503 (2000) (setting forth nonattainment permitting provisions requiring achievement of emission levels equal to "lowest achievable emissions rate" at specified comparators).
203. See, e.g., Ala. Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 485 (2004) (affirming EPA's power to object with administrative orders to lax state permits issued in violation of "Best Available Control Technology" requirement).
204. Of course, with a preemptive unitary federal choice made by the legislature or an agency, that same institution could always revise its choice at a similar or greater level of procedural formality.
205. Steven Shavell, Liability for Harm Versus Regulation of Safety, 13 J. LEGAL STUD. 357, 371 (1984) (exploring why compliance with regulatory requirements does not logically justify eliminating additional common law liability);
206. see also Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach 8-9 (Spring 2007) (unpublished manuscript, on file with the New York University Law Review) (discussing Shavell's analysis).
207. Bates v. Dow Agrosciences L.L.C., 544 U.S. 431, 450 (2005) (rejecting industry preemption argument and stating that tort litigation "history emphasizes the importance of providing an incentive to manufacturers to use the utmost care in the business of distributing inherently dangerous items").
208. See infra Part III.C.
209. This interaction has led agencies in a number of recent high visibility settings to reexamine past actions and modify their course. See, e.g., DAVID KESSLER, A QUESTION OF INTENT 250-60 (2001) (reviewing history of FDA's decision to attempt to regulate tobacco products, including contributions of private individuals); Rabin, supra note 110, at 2069 ("[I]f we are substantially dependent on the tort system to provide the educational function of revealing massive cover-ups of health information by industries like asbestos . . . then it is undeniably the case that tort law is serving a positive function of some consequence."); see also McGarity, supra note 120 (manuscript at 9-16) (reviewing feedback loop between tort litigation and risk regulation).
210. Biodiversity insulates ecosystems from massive losses, especially in comparison to ecosystems with diminished biodiversity. See, e.g., Shahid Naeem & Andrew C. Baker, Paradise Sustained, NATURE, Jan. 27, 2005, at 370 (describing role of biodiversity in stabilizing ecosystems);
211. Kevin Shear McCann, The Diversity-Stability Debate, NATURE, May 11, 2000, at 228 (in survey of related literature, proposing that decrease in biodiversity, particularly through extinction, will result in decrease in ecosystem stability);
212. David Tilman, Clarence L. Lehman & Charles E. Bristow, Diversity-Stability Relationships: Statistical Inevitability or Ecological Consequence?, 151 AM. NATURALIST 277, 277 (1998) (describing hypothesis that ecological stability depends on biological diversity).
213. See supra Part II.D.
214. These and other rationales for complete preemption are further discussed infra in Part IV, where this Article places the floor/ceiling differences and implications into a broader consideration of other preemption variables.
215. Cf. Nina A. Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 794-95 (2004) (noting that asserting preemption would enable federal agencies to ask for larger budgets and greater numbers of employees).
216. With respect to the motivations of legislators, some scholars offer a rather skeptical perspective, see, e.g., FRED S. MCCHESNEY, MONEY FOR NOTHING 45-66 (1997) (collecting tales of legislators benefiting from threatening legislation unfavorable to interest groups),
217. while others offer a more generous view, see, e.g., MARTHA DERTHICK & PAUL J. QUIRK, THE POLITICS OF DEREGULATION 239-42 (1985) (discussing leadership of legislators in deregulating airline, trucking, and telecommunications industries).
218. Cf. WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT 36-42 (1971) (positing that most regulators seek to expand their budgets for variety of reasons).
219. Others call for greater nuance in assessing the motivations of regulators. See, e.g., Buzbee, Recognizing the Regulatory Commons, supra note 9, at 45-46 (discussing criticisms of Niskanen and other theories regarding regulator motivation).
220. See supra note 36 and accompanying text (discussing and citing rare instances of "complete preemption").
221. See Zieve & Wolfman, supra note 85.
222. See, e.g., Bradford R. Clark, Separation of Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1425-26 (2001) (interpreting clear statement antipreemption requirement as means to "ensure compliance with federal lawmaking procedures");
223. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 28 (2007) (asserting that clear statement burden will lead affected industry to make arguments in most visible of fora, eliciting "an open and vigorous debate on the floor of Congress"); Young, supra note 23, at 164-69 (advocating revival of presumption against preemption and "clear statement" rules for limiting agencies' preemption powers).
224. Hills, supra note 147, at 15. Hills acknowledges this proposal's similarity to the "penalty default" rule advocated in Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 COLUM. L. REV. 2162, 2165-66 (2002).
225. Stewart, supra note 49, at 1213-15; cf. Buzbee, supra note 6, at 112 (noting that one factor favoring federal-level environmental regulation is that environmental interest groups have been most effective on that level during past thirty years); Esty, supra note 9, at 598, 610-11 (discussing arguments by public choice theorists that environmental interest groups are underrepresented at local levels but overrepresented at federal level).
226. William W. Buzbee, Brownfields, Environmental Federalism, and Institutional Determinism, 21 WM. & MARY ENVTL. L. & POL'Y REV. 1, 44-45 & nn. 170-78 (1997) (citing and discussing political science literature on issue salience).
227. Hills, supra note 147, at 15-16.
228. See supra note 94 (citing prominent examples of experimentalist regulatory scholarship).
229. See, e.g., Matthew D. McCubbins et al., Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies, 75 VA. L. REV. 431, 440 (1989) (arguing that to steer agencies to desired outcomes, legislatures can either write "into the law precisely what the agency is to achieve and how it is to do so" or they can "constrain an agency's policies . . . by enfranchising the constituents of each political actor");
230. Matthew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165, 166 (1984) (developing theory that participation and litigation rights serve as "fire alarms" that alert legislators if laws are not being implemented).
231. See, e.g., William W. Buzbee, Regulatory Underkill in an Era of Anti-Environmental Majorities, in STRATEGIES FOR ENVIRONMENTAL SUCCESS IN AN UNCERTAIN JUDICIAL CLIMATE 141 (Michael Allan Wolf ed. 2005) (arguing that environmental regulation can be derailed by various indirect actions of agencies resulting in "regulatory underkill," even without any direct legislative action weakening relevant laws);
232. Daniel A. Farber, Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law, 23 HARV. ENVTL. L. REV. 297 (1999) (discussing how "slippage" from statutory language and aspirations renders law less rigid and burdensome than indicated by statutory and regulatory edicts).
233. See infra Part IV (elucidating other preemption variables and risks of any rigid regulatory choice).
234. See, e.g., JERRY L. MASHAW & DAVID L. HARFST, THE STRUGGLE FOR AUTO SAFETY 189-94 (1990) (highlighting reasons for regulatory failure by looking at U.S. National Highway Traffic Safety Administration and arguing that it stopped revisiting its regulations after 1976);
235. Cary Coglianese, Empirical Analysis and Administrative Law, 2002 U. ILL. L. REV. 1111, 1126 ("In some cases, agencies have allegedly retreated altogether from efforts to establish new regulations.");
236. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE L.J. 1385, 1436 (1992) ("Given all of the barriers to writing a rule in the first place, few agencies are anxious to revisit the process in light of changed conditions or new information.").
237. Cf. Leslie Kux, Looking Back at Existing Rules: Agency Perspectives on Analysis Requirements, 48 ADMIN. L. REV. 375, 378 (1996) (analyzing administration's objection to certain bills proposing lookback provisions); McGarity, supra note 156, at 1401 ("A trip back to the drawing board . . . can consign [the project] to oblivion as the agency's limited staff resources are committed to other projects, institutional memory fades, and more immediate priorities press old rulemaking initiatives to the bottom of the agenda.").
238. See Richard J. Lazarus, The Tragedy of Distrust in the Implementation of Federal Environmental Law, LAW & CONTEMP. PROBS., Autumn 1991, at 311, 359 ("Intense agency oversight, repeated regulatory failure, and frequent controversy likewise discourage agency initiative."); McGarity, supra note 156, at 1390-92 (finding that once "legal and political dust has settled, an agency is inclined to let sleeping dogs lie," and that this ossification has "reduce[d] agency incentives to experiment with flexible or temporary rules").
239. These are key elements in the experimentalist critique of traditional regulatory methods. For scholarship in the experimentalist vein, see the sources cited supra note 94.
240. See Alden F. Abbott, The Case Against Federal Statutory and Judicial Deadlines: A Cost-Benefit Appraisal, 39 ADMIN. L. REV. 171, 177 (1987) (finding that individuals institute "[c]omplaints alleging unreasonable delay brought against federal agencies . . . rely[ing] upon specific statutory guarantees, the APA, or both" when agencies neglect tasks);
241. Bradley C. Karkkainen, Information-Forcing Environmental Regulation, 33 FLA. ST. U. L. REV. 861, 897 (2006) (stating that when regulatory agencies fail to perform, citizens can institute deadline suits to "secure strict enforcement of conventional regulatory rules and standards, often in circumstances where the government enforcement agency has overlooked the violation, whether inadvertently or as a matter of policy or enforcement priorities");
242. see also Sidney A. Shapiro & Robert L. Glicksman, Congress, the Supreme Court, and the Quiet Revolution in Administrative Law, 1988 DUKE L.J. 819, 839 (stating that Congress has implemented statutory "hammers" and specific substantive criteria to counter environmental agencies' lack of action);
243. Sarah B. Van de Wetering & Robert W. Adler, New Directions in Western Water Law: Conflict or Collaboration?, 20 J. LAND RESOURCES & ENVTL. L. 15, 37 (2000) (finding that Colorado Fish Recovery Programs will not work unless "regulatory hammers are retained, and the resulting agreements are enforceable in some meaningful way").
244. See supra note 160.
245. Enactment of a lookback provision requiring agencies to assess existing regulations was a key element in the 104th Congress's failed efforts to pass regulatory reform legislation. Statements by supporters of the proposed legislation reflected dissatisfaction with agencies' failure to reexamine past regulatory choices. E.g., H.R. REP. No. 104-284, at 10 (1995) (noting that presidential mandates have failed to regulate agency actions and thus that lookback provision is necessary to reduce "the number of duplicative or unnecessary regulations now on the books" and to "discourag[e] unnecessary rules in the future");
246. CONG. REC. 2748 (1995) (statement of Sen. Roth) ("[T]he regulatory process itself has become too cumbersome, unresponsive, and inefficient.");
247. CONG. REC. 18, 348 (1995) (statement of Sen. Thompson) ("When the whim suits them, Federal agencies comply with the Executive order. When it does not, they do not. In most cases, agencies are not making careful assessments of the positive and negative impacts of their regulations.").
248. See generally Kux, supra note 157, at 375 (highlighting 104th Congress's attempts to establish lookback provisions for regulatory agencies). For other discussions of problems of legal accretion, see generally GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982);
249. J.B. Ruhl & James Salzman, Mozart and the Red Queen: The Problem of Regulatory Accretion in the Administrative State, 91 GEO. L.J. 757 (2003).
250. See McGarity, supra note 156 (discussing roots of regulatory ossification problem).
251. See Clayton P. Gillette, Lock-in Effects in Law and Norms, 78 B.U. L. REV. 813, 817 (1998) (finding that administrative law is subject to "lock-in" and "path dependence" because "regulations provide signals of acceptable behavior and promise rewards to those who conform" and thus threaten "evolutionary processes that might return still greater rewards"); Ruhl & Salzman, supra note 162, at 818 ("Over time, the accretion of rules will present more regulatory decision nodes, which will add to the path dependence of present regulatory positions, and will therefore limit the options for new rules.").
252. See generally Donald T. Hornstein, Complexity Theory, Adaptation, and Administrative Law, 54 DUKE L.J. 913, 926-28 (2005) (explaining how scholarly attention to "the insights of sensitivity to initial conditions and path dependence" has helped explain "features of the administrative state such as the overaccumulation of rules and 'lock-in' effects (citations omitted));
253. Jeffrey J. Rachlinski, A Positive Psychological Theory of Judging in Hindsight, 65 U. CHI. L. REV. 571 (1998) (discussing industry investment and link to status quo bias).
254. See Ruhl & Salzman, supra note 162, at 762 (analyzing reasons "massive, detailed, and encompassing" regulatory law will develop over time, and discussing associated problems created).
255. See McGarity, supra note 156, at 1390-93, 1436 (illustrating how agencies are often "inclined to let sleeping dogs lie" rather than go through cumbersome rulemaking process, even when new scientific or technical knowledge would warrant change).
256. See, e.g., Buzbee, supra note 154, at 151 ("[M]ere promulgation of regulations is many steps removed from actual implementation and enforcement of the law and the new regulations."); Farber, supra note 154, at 299-300 (defining lack of enforcement as "negative" slippage and creative interpretation and renegotiation of standards to make compliance easier as "affirmative" slippage).
257. Risk regulation involves interests and dynamics that distinguish it from other forms of government action, such as the provision of services or the management of federal lands and property. Risk regulation, broadly defined to include not just risks to health or the environment, but risks of monetary loss and market threats as well, tends to require government action in settings involving clashing interests. For example, environmentalists and industry seek divergent outcomes. Securities firms and consumer groups will often disagree about the degree of oversight and regulatory constraints. Health advocates and pharmaceutical companies dispute how to deal with risks associated with new drugs. In all of these settings, the government's role is to make choices where one side or the other will feel a loss; zero-sum outcomes, not win-win regulatory choices, are the rule. In addition, while interest groups are arrayed on both sides, resources and monetary incentives are not equally distributed. Industry, confronted with the high costs of any regulatory action, will have incentives and monetary resources adequate to participate throughout the legislative or regulatory process. In contrast, citizens and nonprofits may care deeply, but tend to be outmatched. Their ability to challenge unfounded regulatory actions by agencies, especially in court, gives them enough leverage so they cannot be ignored. These disparate interests and genuinely divergent preferences mean that post-action litigation is a common threat. The line between risk regulation and economic regulation is often fuzzy. See STEPHEN BREYER, REGULATION AND ITS REFORM 7 (1982) (stating that to distinguish economic and noneconomic regulation is "difficult and the subject of controversy").
258. A recent proposal to create state and federal regulations that would protect citizens from unduly dangerous financial products and services provides an example of how risk regulation can bleed into economic regulation. See Gretchen Morgenson, Beware of Exploding Mortgages, N.Y. TIMES, June 10, 2007, at B1 (discussing risks of adjustable rate "exploding mortgages" and proposed regulations to control that risk).
259. See, e.g., Richard B. Stewart, The Reformation of American Administrative Law, 88 HARV. L. REV. 1669, 1713-55 (1975) (explaining interest-representation model of monitoring agency performance); supra note 160 (discussing deadlines, regulatory hammers, and citizen suits);
260. cf. Michael Herz, Judicial Textualism Meets Congressional Micromanagement: A Potential Collision in Clean Air Act Interpretation, 16 HARV. ENVTL. L. REV. 175, 179 (1992) (explaining how increased specificity of statutes governing regulatory agencies seems driven, in part, by congressional intent to reduce judicial deference to agency decisions under Chevron analysis).
261. Dorf & Sabel, supra note 94, at 292-310 & nn. 87-88 & 111. Specifically, Professors Dorf and Sabel argue that "learaing-by- monitoring solutions," such as those used by Japanese automakers, "are well fitted to the characteristic problems of modern polities as these appear in the travails of post-New Deal institutions." Id. at 314.
262. Id. at 299-300.
263. Id. at 354.
264. Id. at 298-300, 314.
265. See id. at 336-38, 354-55, 374-75 (discussing role of government information pooling and need for "peer inspectorate").
266. See, e.g., id. at 315, 354-55 (broadly criticizing regulatory standard setting and dysfunctions associated with traditional regulatory process). Later, Dorf and Sabel offer more nuanced praise of the Clean Air Act's use of "joint federal/state responsibility that functions largely according to principles of democratic experimentalism." Id. at 434.
267. Id. at 350-54.
268. See supra text accompanying notes 107-08.
269. See sources cited supra note 138 (discussing regulatory benefits flowing from agency involvement in common law litigation).
270. See supra note 138; see also MARTHA DERTHICK, UP IN SMOKE: FROM LEGISLATION TO LITIGATION IN TOBACCO POLITICS (2d ed. 2005) (recounting battles over tobacco risks and interactions between legislative, regulatory, and common law actions).
271. See supra note 138.
272. See McGarity, supra note 120 (manuscript at 6-9) (explaining "feedback loop" of litigation, whereby litigation-related investigations produce "information that is typically unavailable to agencies").
273. Sabel & Simon, supra note 94, at 1020 (defining destabilization rights in examination of how impact litigation can lead to unsettling of status quo).
274. A variant on this argument is Professor Schwartz's discussion of the inefficacies associated with disparate state standards, in which he questions the presumption that Congress would want additional state regulation and common law. See Schwartz, supra note 110, at 6-10.
275. E.g., FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE §§ 7.3, 7.5 (1991) (arguing for rule-based decisionmaking from standpoint of efficiency and stability);
276. Antonin Scalia, The Rule of Law as the Law of Rules, 56 U. CHI. L. REV. 1175 (1989) (extolling advantages of clear, predictable, general rules).
277. See, e.g., Merrill, supra note 40, at 166-68 (arguing that current preemption doctrine is both "too abstract and too particular," and proposing default rules that judges could use in resolving particular cases and controversies); Nelson, supra note 9, at 231-32 (criticizing Supreme Court's jurisprudence in light of preemption doctrine's grounding in Supremacy Clause).
278. See Hills, supra note 147, at 22 (arguing that preemption suppresses political entrepreneurship).
279. See Michael S. Greve, Federalism's Frontier, 7 TEX. REV. L. & POL. 93, 101 (2002) (exploring risk of "interstate exploitation" where lawsuits in one state victimize producers from other jurisdictions); Issacharoff & Sharkey, supra note 18, at 1356-57 (arguing that in preemption cases Supreme Court has attempted to protect national market from externalities of state legislation).
280. for two articles that predate the recent wave of ceiling preemption actions and focus more on political preemption choice than the rationales and case law of judicial preemption, see John P. Dwyer, The Role of State Law in an Era of Federal Preemption: Lessons from Environmental Regulation, LAW & CONTEMP. PROBS., Summer 1997, at 203;
281. and Paul S. Weiland, Federal and State Preemption of Environmental Law: A Critical Analysis, 24 HARV. ENVTL. L. REV. 237 (2000).
282. See, e.g., NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS, AND PUBLIC POLICY 5 (1999) (proposing that comparative institutional analysis is necessary to determine relative ability of each institution in achieving desired goal given circumstances); Buzbee, supra note 150, at 1-2 (showing how differences in historical circumstances for same institution on same issue can affect outcome);
283. William W. Buzbee, Sprawl's Dynamics: A Comparative Institutional Analyste Critique, 35 WAKE FOREST L. REV. 509, 516-18 (2000) [hereinafter Buzbee, Sprawl's Dynamics] (noting that sensitivity to context, specifically historical context, is necessary to determine possible policy implications of choosing particular institution);
284. James E. Krier, The Tragedy of the Commons, Part Two, 15 HARV. J.L. & PUB. POL'Y 325, 340 (1992) (stating that objective of comparative institutional analysis "is to determine what mixes of market and government, rights and regulation, work best under various circumstances");
285. Edward L. Rubin, The New Legal Process, the Synthesis of Discourse, and the Microanalysis of Institutions, 109 HARV. L. REV. 1393, 1406-07 (1996) (analyzing argument advanced in KOMESAR, supra, and concluding that it requires choosing among institutional alternatives on basis of issue-by-issue "comparative institutional analysis").
286. See, e.g., NEIL GUNNINGHAM ET AL., SMART REGULATION: DESIGNING ENVIRONMENTAL POLICY 15 (1998) (arguing for combination of policy instruments);
287. KOMESAR, supra note 189, at 271 (stating that one institution alone cannot produce optimal result); Daniel C. Esty, Environmental Protection in the Information Age, 79 N.Y.U. L. REV. 115, 146-48 (2004) (arguing that "mix of institutions," rather than single institutional strategy, is necessary to effectively address challenge of reducing toxic emissions); Esty, supra note 9, at 614 (stating that optimal strategy to regulate "the diversity of environmental harms" is combination of governmental and private "structures").
288. See, e.g., Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 568, 571-77 (1993) (describing factors that influence formulation of rules and standards, and circumstances that lead to preference for one over another);
289. Pierre J. Schlag, Rules and Standards, 33 UCLA L. REV. 379 (1985) (refining rules/standards debate).
290. See, e.g., John F. Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 COLUM. L. REV. 612, 665 (1996) ("Although Chenery does give agencies a presumptive legal right to implement their delegations through adjudication, practical or legal concerns may induce them to use rulemaking in particular contexts.");
291. David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 HARV. L. REV. 921, 926-42 (1965) (describing benefits of both rulemaking and adjudication).
292. Compare Roger Meiners & Bruce Yandle, Common Law and the Conceit of Modern Environmental Policy, 7 GEO. MASON L. REV. 923, 948-56 (1999) (extolling virtues of common law environmental protection while pinpointing shortcomings of statutory environmental protection),
293. and Roger E. Meiners & Bruce Yandle, Common Law Environmentalism, 94 PUB. CHOICE 49, 50 (1998) (same),
294. with Frank B. Cross, Common Law Conceits: A Comment on Meiners & Yandle, 7 GEO. MASON L. REV. 965, 965, 971-77 (1999) (arguing that free market environmentalists, such as Meiners and Yandle, present flawed and naïve exposition of virtues of common law protection).
295. For a general analysis of common law and public law from a law and economics perspective, see GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 163-66 (1982).
296. See Colin S. Diver, The Optimal Precision of Administrative Rules, 93 YALE L.J. 65, 67-76 (1983) (setting forth three dimensions to rules - transparency, accessibility, and congruence - and arguing that mix of these will produce optimal rule in different circumstances).
297. E.g., Noah, supra note 116, at 2157-59 (attempting to parse muddled jurisprudence regarding preemption of state tort actions by FDA regulation of pharmaceutical products); see also Riegel v. Medtronic, Inc., 451 F.3d 104, 118-20 (2d Cir. 2006) (closely parsing FDA approval and review procedures to determine preemptive impacts of FDA actions), cert. granted, 127 S. Ct. 3000 (U.S. June 25, 2007) (No. 06-179).
298. Merrill, supra note 40 (seeing concern with market balkanization in judicial preemption doctrine).
299. See, e.g., Dorf & Sabel, supra note 94, at 349-50 (arguing that until recently technology standards were based on industry compromises); Keohane et al., supra note 130, at 357-67 (discussing "supply" incentives for particular regulatory instrument choices); Wendy E. Wagner, The Triumph of Technology-Based Standards, 2000 U. ILL. L. REV. 83, 88-90 (describing technology-based standards and their resulting emission or effluent limitations).
300. See Wagner, supra note 197, at 94-96 (noting considerable demands of standard setting but arguing that it is comparatively less demanding than other seemingly more ideal forms of regulation).
301. See Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 STAN. L. REV. 1333, 1333-34, 1341-64 (1985) (describing how agency determinations of "complex scientific, engineering, and economic issues regarding the feasibility of controls on hundreds of thousands of pollution sources . . . . provide a fertile ground for complex litigation");
302. Howard Latin, Ideal Versus Real Regulatory Efficiency: Implementation of Uniform Standards and "Fine Tuning" Regulatory Reform, 37 STAN. L. REV. 1267, 1270 & n.17 (1985) (describing how powerful interests are at stake in agency regulation and create incentives for litigation).
303. See, e.g., Solid Waste Disposal Act § 3008, 42 U.S.C. §§ 6928(d), (g) (2000) (creating criminal and civil penalties for so-called midnight dumping).
304. See Civil Rights Act of 1964 § 701, 42 U.S.C. § 2000e-2 (2000) (creating causes of action and liability for prohibited forms of employment discrimination).
305. Jonathan H. Adler, Jurisdictional Mismatch in Environmental Federalism, 14 N.Y.U. ENVTL. L.J. 130, 133, 158-60 (2005);
306. Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL'Y REV. 23, 25 (1996);
307. see also Buzbee, Recognizing the Regu latory Commons, supra note 9, at 4-7 (criticizing focus on exclusive locus of contamination and discussing other dimensions relevant to regulatory choice).
308. Buzbee & Schapiro, supra note 1, at 1206-09 (arguing that regulation can be conceptualized as akin to "regulatory prism"); id. at 1209-34 (analyzing Supreme Court doctrine from New Deal to present and discussing Court's increasingly "unidimensional" approaches after several decades during which diverse "activities" were found to justify use of federal power).
309. I have developed many of this Subsection's points at greater length elsewhere. See Buzbee, Recognizing the Regulatory Commons, supra
310. See also Hari M. Osofsky, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 WASH. U. L.Q. 1789, 1791-95 (2005) (working with regulatory commons concept and identifying array of scalar mismatches confounding efforts to regulate climate change causes).
311. This is the focus of Butler & Macey, supra note 202.
312. Professors Issacharoff and Sharkey, supra note 18, at 1355, focus on the risks of a jurisdiction favoring its own and exporting regulatory costs to others.
313. Buzbee, Recognizing the Regulatory Commons, supra note 9, at 22-27.
314. Buzbee, Regulatory Fragmentation, supra note 9; Ruhl & Salzman, supra note 162.
315. See Ohio v. EPA, 997 F.2d 1520, 1534-36 (D.C. Cir. 1993) (discussing exposure pathways and means to assess risk in challenge to amendments to CERCLA's National Oil & Hazardous Substances Pollution Contingency Plan).
316. Professor Carlson observes that giving one large state, like California, the ability to adopt its own different standards for cars can similarly generate economies of scale and may have the added benefit of a concentration of similarly focused innovators who will benefit from geographical proximity and associated "agglomeration economies." See Carlson, supra note 44, at 314.
317. Dorf & Sabel, supra note 94, at 354-56 (discussing advent of novel forms of organization through pooling of information by experimentalist administration).
318. See Stewart, supra note 49, at 1219-20 (discussing risk of overly large regulator imposing costs due to such diseconomies).
319. Dorf & Sabel, supra note 94, at 315-16, emphasize the importance of embracing interactive experimentalist regimes utilizing a diversity of actors in settings characterized by "volatility" and "diversity."
320. Part III discussed how retaining institutional diversity can serve as an antidote to regulatory dysfunctions. This section expands on Part III's analysis, offering a broader array of regulatory risks associated with preemption choice.
321. See Buzbee, supra note 32, at 59-61 (discussing need for policy analysts not just to envision goals, but also to understand institutional roots and related incentives that cause social ills and hence must be factored into responses); see also Buzbee, Sprawl's Dynamics, supra note 189, at 510-11 (distinguishing between "goal choice" and need for comparative institutional analysis in assessing multifaceted challenges such as urban sprawl and its associated harms and benefits).
322. Issacharoff & Sharkey, supra note 18, at 1385-89; see also Greve, supra note 187, at 101 (exploring risk of "interstate exploitation"). This idea of exportation of regulatory or common law costs to other jurisdictions has intuitive appeal but rests on somewhat shaky foundations. Regulators or jurors in a poor state lacking producers subject to regulation or sanction may be more willing to punish or regulate risk creators than would a state with such producers. But with dispersed ownership of most corporations, institutional managers of diverse retirement accounts, and substantial production occurring abroad, it is unclear that there is a great risk that another state will fall victim to what these authors view as potentially overzealous jurors or regulators. In addition, as seen in the ceiling preemption assertions critiqued in this Article, little can be done about these risks short of the preclusion of any state, local, or common law actions. Such preemption creates its own risks. The stronger regulatory externality argument, articulated in Schwartz, supra note 110, is that a large state will set a protective standard, thereby increasing the cost of compliant products, and that manufacturers eager for economies of scale will market those more costly products in all states. This would effectively result in the protective state imposing higher prices on others through intermediate private-sector decisions. Id. at 21. Still, it is the very nature of regulation that producers will frequently need to decide whether to produce goods with diverse features or to meet the largest markets' demands. Unless all regulation of goods and production is to be nationalized, such regulatory externalities will arise with great frequency.
323. Ruhl & Salzman, supra note 162.
324. See Rachlinski, supra note 164, at 576 (discussing phenomenon that people become attached to status quo and avoid changes to status quo even when they will benefit from that change); William Samuelson & Richard Zeckhauser, Status Quo Bias in Decision Making, 1 J. RISK & UNCERTAINTY 7, 12-14 (1988) (summarizing experimental research studies revealing status quo bias).
325. See Jeffrey J. Rachlinski, The Psychology of Global Climate Change, U. ILL. L. REV. 299, 307-08 (2000) (discussing status quo bias and stating that investments made in reliance on past regulatory and business norms often lead industries and legislators to maintain status quo).
326. See, e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 29, 36-40 (1983) (describing challenge to new regulation requiring seatbelts or airbags in new automobiles and reviewing industry opposition to imposition of additional safety features); Dorf & Sabel, supra note 94, at 357-64 (reviewing history of State Farm as evidence of need for less oppositional forms of regulatory process); see also KEITH BRADSHER, HIGH AND MIGHTY: SUVs - THE WORLD'S MOST DANGEROUS VEHICLES AND HOW THEY GOT THAT WAY 31 (2002) (reviewing American Motors' resistance to addressing stability and rollovers in Jeeps).
327. Agencies also face a modestly increased burden when changing approaches. They must confront the old approach, admit that a change is proposed, and explain the change so it is not adjudged to be arbitrary and capricious. Cf. Kevin M. Stack, The Constitutional Foundations of Chenery, 116 YALE L.J. 952, 972-73 (forthcoming 2007), available at http://ssrn.com/abstract=975758 (discussing strong burden of justification that agencies face when taking regulatory action).
328. See generally JERRY L. MASHAW, GREED, CHAOS, AND GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAW (1997) (noting criticisms and arguing for more pragmatic application of public choice theory); Vladeck, supra note 36 (arguing against federal preemption of state tort claims in light of regulatory failures).
329. George Stigler claimed that regulation is typically for the benefit of the ostensibly regulated target. See Stigler, supra note 25, at 3. More usual "capture" theory arises out of concerns with the revolving door between industry and regulators, or regulators who over time become too cozy with the industry they are supposed to monitor. Much of so-called capture behavior can arise out of agencies' dependence on information that industry provides. See Richard B. Stewart, supra note 169, at 1684-87 (suggesting that agency capture results from benign repeat interactions with targets of regulation, limited agency resources, and inability of diffuse groups to pool resources in order to provide information to regulators).
330. Cf. MCCHESNEY, supra note 143, at 26-32 (reviewing ways legislators can propose legislation merely to secure political or monetary benefits, even where such law is not expected to be enacted).
331. See supra Part III.A.
332. The problem here, as Dean Revesz observes, is that if federal regulatory schemes prevent jurisdictions from competing for industry by lowering environmental standards, states will seek to draw industry by lowering regulatory standards in other areas. Only complete nationalization of regulatory decisions will eliminate such competition. Revesz, supra note 10, at 540.
333. Ruhl & Salzman, supra note 162, at 763.
334. Buzbee, Recognizing the Regulatory Commons, supra note 9, at 22-36.
335. Id.
336. This is perhaps the most justifiable rationale for the shift of LNG siting authority to FERC. See Durbin, supra note 79, at 540-41 (arguing that Congress's decision to transfer LNG siting authority to FERC was justified to prevent anticommons problem that could have led to undersupply of LNG sites and, therefore, gas shortage); Richard J. Pierce, Jr., Environmental Regulation, Energy, and Market Entry, 15 DUKE ENVTL. L. & POL'Y F. 167, 175-76 (2005) (discussed in Durbin, supra note 79, at 541 & nn.252-58) (pointing out robust and widespread "NIMBY-based local opposition" as potential anticommons barrier to construction of FERC- and Coast Guard-approved LNG terminals); see also infra Part V.
337. See Ahdieh, supra note 9, at 872-75 (discussing role of state attorneys general in prompting federal regulatory action); Trevor Morrison, The State Attorney General Role and Preemption Claims, in PREEMPTION CHOICE, supra note 120 (manuscript at 4-6) (arguing that state attorneys general can "root out unlawful conduct that might otherwise go undetected").
338. See, e.g., JOHN DEWEY, RECONSTRUCTION IN PHILOSOPHY 183-84 (1948) (using education to describe pragmatist account of relationship between means and ends, whereby means constantly reconceptualize ends), cited in Dorf & Sabel, supra note 94, at 284-85 & 285 n.54.
339. See, e.g., Keohane et al., supra note 130, at 346-53 (discussing why targets of regulation may embrace command-and-control regulation and disfavor strategies preferred by economists).
340. E.g., Bates v. Dow Agrosciences L.L.C., 544 U.S. 431, 449 (2005) ("In areas of traditional state regulation, we assume that a federal statute has not supplanted state law unless Congress has made such an intention clear and manifest." (citations omitted)).
341. See, e.g., Mary J. Davis, Unmasking the Presumption in Favor of Preemption, 53 S.C. L. REV. 967, 1002-13 (2002) (noting that recent cases show presumption analysis operating to exclude state law with even minimal effect on federal objectives); Sharkey, supra note 135, at 6-12 (noting inconsistent adherence to this presumption but also observing that Supreme Court's major preemption outcomes tend to track litigation position taken by relevant federal regulatory agencies); Note, supra note 11, at 1604 (noting inconsistent application of presumption against preemption).
342. See, e.g., Hills, supra note 147, at 58 n.200 (listing congressional language calling for preemption of state laws); Vladeck, supra note 36, at 98 n.16 (citing statutes with explicit broadly preemptive language); supra Part II (discussing cooperative federalism structures).
343. See, e.g., Chemical Facility Anti-Terrorism Standard, 71 Fed. Reg. 78,276, 78,292-93 (proposed Dec. 28, 2006) (to be codified at 6 C.F.R. pt. 27) (discussing how legislators explicitly discussed and considered different preemption language choices before ultimately deleting any such language); see also discussion supra Part II.D.
344. See supra Part III.B (discussing federalism's core benefits).
345. Clark, supra note 147, at 1425-26; Hills, supra note 147, at 17; Vladeck, supra note 36, at 110; Young, supra note 23, at 264-69.
346. Vladeck, supra note 36, at 110, 115; see also Sharkey, supra note 18, at 227, 234, 238 (reviewing language of relevant enabling acts).
347. See supra Part II.D.
348. See Sharkey, supra note 18 (discussing roof regulation).
349. The "Volvo effect" alludes to the Volvo car company's consistent efforts to provide an unusually safe car and to market it emphasizing safety features. See Note, Harnessing Madison Avenue: Advertising and Products Liability Theory, 107 HARV. L. REV. 895, 896 (1994) (describing Volvo effect).
350. See Frank Ackerman, The Unbearable Lightness of Regulatory Costs, 33 FORDHAM URB. L.J. 1071, 1071-73 (2006) (noting that many regulations can be achieved at zero or negative cost);
351. Lisa Heinzerling, Political Science, 62 U. CHI. L. REV. 449, 463 (1995)
352. (reviewing STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION (1993) ("[Justice Breyer] almost certainly exaggerates the costs of controlling these chemicals by uncritically accepting the notoriously inflated cost estimates of industry and the Reagan-Bush OMB.")).
353. Labeling Requirements, 71 Fed. Reg. 3922, 3934, 3936 (Jan. 24, 2006) (to be codified at 21 C.F.R. pts. 201, 314, 601).
354. Id. at 3922, 3935.
355. See JAMES T. O'REILLY, FOOD AND DRUG ADMINISTRATION §§ 26:58-:80 (3d ed. 2007) (reviewing FDA cases involving preemption or non-preemption of tort claims).
356. See Noah, supra note 116, at 2159-60 (describing potential regulatory conflicts that can arise when juries find breach of duty in tort by defendant who complied with federal regulations).
357. See Riegel v. Medtronic, Inc., 451 F.3d 104, 108-13 (2d Cir. 2006) (distinguishing uncommon Premarket Approval (PMA) medical devices, which require lengthy pre-marketing process and post-marketing reporting, with more common Section 510(k) devices that are subject to far fewer advance or post-sale requirements), cert. granted, 127 S. Ct. 3000 (U.S. June 25, 2007) (No. 06-179).
358. The FDA's own changing and sometimes mushy assertions about the preemptive impacts of its actions render the finality of these most recent statements somewhat uncertain. Sharkey, supra note 18, at 242 (noting inconsistency of FDA position); Vladeck, supra note 36, at 124-26 (same).
359. Dorf & Sabel, supra note 94, at 287. Professors Dorf and Sabel define "learning by monitoring" as a collaborative process whereby independent actors "monitor one another's activities closely enough to detect performance failures and deception." Id.
360. See supra notes 87-90 and accompanying text.
361. As observed in Edward L. Rubin & Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994), a decentralized managerial structure under the national government can secure many of the benefits associated with federalism - e.g., public participation, giving citizens choices, achieving economic efficiency through competition among jurisdictions, and encouraging experimentation. Id. at 914-26. However, the critical latitude that a federalist structure provides to state and local governments is the ability not just to tailor national goals to local settings but also to make different policy choices and to be responsive to a different electorate and the different tradeoffs beneficial to that constituency. See id. at 929.
362. See generally David Driesen, The Economic Dynamics of Environmental Law: Cost-Benefit Analysis, Emissions Trading, and Priority-Setting, 31 B.C. ENVTL. AFF. L. REV. 501 (2004) (discussing how emissions-trading programs give industry inadequate incentives to establish pollution-reduction initiatives).
363. Any regulation of GHGs is therefore somewhat unexpected. See Engel, supra note 9, at 168 & n.41 (noting that benefits of pollution control are not internalized by individual regulators); Engel & Saleska, supra note 72, at 190 (describing climate change as classic commons problem wherein individual nations have little incentive to forego economic benefit by regulating industry).
364. Engel, supra note 9, at 160; Engel & Saleska, supra note 72, at 213.
365. New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), contains the leading statement of the principle: "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." Id. at 311 (Brandeis, J., dissenting); see also Carlson, supra note 44, at 284 (discussing "laboratories" theory).
366. See Editorial, The Democrats Lag on Warming, N.Y. TIMES, June 10, 2007, at C13 (describing "regressive bill" by Representative John Dingell that would "override" Supreme Court's finding of EPA power to regulate motor vehicle GHGs and "block efforts by California and 11 other states to regulate and reduce greenhouse gases from vehicles").
367. See supra notes 42-45 and accompanying text (discussing California's exemption from federal preemption on pollution law); supra note 75 and accompanying text.
368. For a work identifying risks of state regulation of GHG emissions and arguing for national and international regulation, but not addressing the floor/ceiling distinction and possible benefits of both layers of regulation, see Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Policies, 155 U. PENN. L. REV. 1961 (2007).
369. See JOHN DEWEY, THE PUBLIC AND ITS PROBLEMS 202-03 (1927) (urging an experimental approach to social policy whereby existing and proposed policies are "treated as working hypotheses, not as programs to be rigidly adhered to and executed").