Democratizing the law of federal preemption

Northwestern University Law Review

Volumn 102, Issue 2, 2008, Pages 507-550

  Dana, David A ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 49849093166     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (128)

1. A federal standard serves as a "cap" when it precludes any state from implementing a state standard that is more stringent than the federal standard but allows any state to implement a standard that is less stringent than the federal standard. A federal standard serves as a "floor" when it precludes any state from implementing a standard that is less stringent than the federal standard but allows any state to implement a standard that is more stringent than the federal standard.
2. See CAL. CODE REGS. tit. 13, § 1961.1 (2007) (California emissions statute adopted pursuant to CAL. HEALTH & SAFETY CODE § 43018.5).
3. So far, twelve states have adopted regulations similar to or identical to the California regulations. See Clean Cars Campaign, About the Clean Cars Campaign, http://www.cleancarscampaign.org/ (last visited Nov. 9, 2007) (reporting that Arizona, Connecticut, Maine, Maryland, Massachusetts, New York, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington have adopted the California greenhouse gas emissions regulations). Three other states-Colorado, Illinois, and Utah-are considering doing so. See id. Two states-Arizona and Florida-have in place executive orders dealing with emissions. See id.
4. The Clean Air Act generally preempts state regulation of motor vehicle emissions, see 42 U.S.C. § 7543(a) (2000), but provides an exemption for rules adopted by the state of California (and other states following California) in cases in which California has received a waiver from the federal Environmental Protection Agency (EPA). See id. § § 7543(b), 7507. California and the other states that have adopted the California rules argue that the Clean Air Act waiver provisions show that Congress intended to allow for stricter-than-federal standards in California and states following California. See, e.g., Defendant and Defendant-Intervenors' Memorandum of Points and Authorities in Support of Their Motion for Judgment on the Pleadings at 11-12, Cent. Valley Chrysler-Jeep, Inc. v. Witherspoon, 456 F. Supp. 2d 1160 (E.D. Cal. 2006) (No. CV F 04-6663 AWI LJO), 2006 WL 2969677 [hereinafter Defendants' Motion in Support] ("From the start Congress anticipated that California's standards would be 'more stringent than, or applicable to emissions or substances not covered by, the national standards.'" (quoting H.R. REP. NO. 90-728 (1967), reprinted in 1967 U.S.C.C.A.N. 1938, 1958)). The Supreme Court's recent ruling in Massachusetts v. EPA bolsters California's argument by establishing that the greenhouse gas carbon dioxide is a pollutant subject to regulation under the Clean Air Act. See 127 S. Ct. 1438, 1462 (2007) ("Because greenhouse gases fit well within the Clean Air Act's capacious definition of 'air pollutant,' we hold that EPA has the statutory authority to regulate the emission of such gases from new motor vehicles.").
5. See Memorandum of Points and Authorities of Plaintiff Intervenor, Association of International Automobile Manufacturers, in Opposition to Defendants' Motion for Judgment on the Pleadings at 15, Cent. Valley Chrysler-Jeep, 456 F. Supp. 2d 1160 (No. CV F 04-6663 AWI LJO), 2006 WL 2969683 [hereinafter Plaintiff Intervenor's Motion in Opposition] ("Under well settled law, the regulations are therefore preempted. Moreover, nothing in the Clean Air Act saves these regulations from preemption."). The EPCA contains an express preemption provision upon which the car manufacturers rely. The EPCA provides that corporate average fuel economy standards must be set by the National Highway Traffic Safety Administration (NHTSA) at the "maximum feasible average fuel economy level," and provides that the NHTSA "shall consider standard technological feasibility, economic practicability, the effect of other motor vehicle standards of the Government on fuel economy, and the need of the United States to conserve energy." See 49 U.S.C. § 32,902(f) (2000). According to the statute, "[w]hen an average fuel economy standard prescribed under [the EPCA] is in effect, a State ... may not adopt or enforce a law or regulation related to fuel economy standards . . . ." See id. § 32,919(a). The automobile manufacturers argue that the express preemption provision applies to the California case because the only plausible way car manufacturers can meet the California regulatory targets for reduced greenhouse gas emissions would be to enhance the fuel economy of the cars they sell well beyond what is required under the current NHTSA standards. Plaintiff Intervenor's Motion in Opposition, supra, at 26 ("[C]ompliance with the AB 1493 Regulations would require manufacturers to incorporate fuel saving technologies into their vehicle fleets at a pace that is faster than what NHTSA found would be economically practical."). California argues that the California regulations are targeted at greenhouse gas emissions and hence do not relate to fuel economy per se. Defendants' Motion in Support, supra note 4, at 18 ("[O]n their face California's state law and regulations establish air pollution emission standards under its Clean Air Act authority, not fuel economy standards."). According to California, the EPCA language regarding "the effect of other motor vehicle standards of the Government on fuel economy" requires NHTSA to accommodate the California greenhouse gas standards. Id. at 19-21. California thus maintains that both the Clean Air Act and the EPCA allow for regulations of the sort California has adopted. Id. at 23 ("Thus, the legislative histories of both EPCA and the Clean Air Act contradict Plaintiffs' contention that EPCA's preemption provision preempts California's federally approved emission standards.").
6. See Average Fuel Economy Standards for Light Trucks Model Years 2008-2011, 71 Fed. Reg. 17,566, 17,654 (Apr. 6, 2006) (codified at 49 C.F.R. pts. 523, 533, 537 (2007)) ("In mandating federal ftiel economy standards under EPCA, Congress has expressly preempted any state laws or regulations relating to fuel economy standards.").
7. The automobile industry brought suit in federal court in Rhode Island and Vermont in addition to California. See CA Clean Cars Campaign: Legal Challenges in Other States, http://www.calcleancars.org/legal/other_states.html (last visited Oct. 27, 2007). For an excellent overview of the California regulations and the preemption questions, see generally Ann E. Carlson, Federalism, Preemption, and Greenhouse Gas Emissions, 37 U.C. DAVIS L. REV. 281 (2003).
8. See Thomas W. Merrill, Preemption in Environmental Law: Formalism, Federalism Theory, and Default Rules, in FEDERAL PREEMPTION: STATES POWERS, NATIONAL INTERESTS 166, 166 (Richard A. Epstein & Michael S. Greve eds., 2007) (emphasizing the "very formality" of federal preemption doctrine).
9. Moreover, preemption clauses in statutes, when present, are often paired with savings clauses that provide that the federal statute "saves" or does not negate state law. The combination of preemption and savings clauses in a federal statute creates a "backdrop of statutory uncertainty." Theodore W. Ruger, Preempting the People: The Judicial Role in Regulatory Concurrency and Its Implications for Popular Lawmaking, 81 CHI.-KENTL. REV. 1029, 1052 (2006).
10. See Paul S. Weiland, Federal and State Preemption of Environmental Law: A Critical Analysis, 24 HARV. ENVTL. L. REV. 237, 255 (2000) ("[T]he categories themselves may bleed into one another as the Supreme Court itself has recognized.").
11. See, e.g., Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747 (1985) (explaining that congressional intent is the "ultimate touchstone" of preemption analysis (citations and internal quotation marks omitted)).
12. See Robert R. Gasaway, The Problem of Federal Preemption: Reformulating the Black Letter Rules, 33 PEPP. L. REV. 25, 32 (2005) ("As an initial matter, all preemption is 'obstacle' preemption in the sense that all preemption involves the striking down of state statutes that pose obstacles to 'the accomplishment and execution of the full purposes and objectives of Congress.'" (citing Hines v. Davidowitz, 312 U.S. 52, 67 (1941))).
13. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005) ("The long history of tort litigation against manufacturers of poisonous substances adds force to the basic presumption against preemption."); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) ("[B]ecause the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action."); N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995) ("[I]n cases like this one, where federal law is said to bar state action in fields of traditional state regulation ..., we have worked on the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." (citations and internal quotation marks omitted)).
14. See, e.g., Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 260 (2004) (Souter, J., dissenting) ("'[I]n a field which the States have traditionally occupied, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" (quoting Medtronic, 518 U.S. at 485)); Geier v. Am. Honda Motor Co., 529 U.S. 861, 894 (2000) (Stevens, J., dissenting) ("Because of the role of States as separate sovereigns in our federal system, we have long presumed that state laws ... are not to be pre-empted by a federal statute unless it is the clear and manifest purpose of Congress to do so." (citing Medtronic, 518 U.S. at 485)).
15. As discussed in Part II, the federalism presumption is problematic on a number of grounds, including that it takes no account of the weight of democratic support in the states for an alternative to the federal standard.
16. See Bates, 544 U.S. at 449 ('"[B]ecause the States are independent sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action.'" (alterations in original) (quoting Medtronic, 518 U.S. at 485)). The idea that from the perspective of "federalism" a single small state counts as much as many states follows not simply from the grounding of federalism in the rhetoric of state sovereignty or quasi-sovereignty but also from one of the functional purposes of federalism that motivated the Founders and that has been invoked by defenders of a robust federalism ever since: limiting the power of the federal government to particular enumerated powers. From the vantage of the objective of limiting the federal government, it is immaterial whether a single state government or many state governments or even no state governments object to the federal law as an intrusion into the sphere of regulation reserved for the states. What matters is that the federal government has gone too far. In one of the most celebrated "new federalism" opinions of the Rehnquist court, New York v. United States, 505 U.S. 144 (1992), the Court accepted the argument of a single state (New York) that a "take title" provision of a federal statute commandeered a state into building its own radioactive waste capacity, even though almost every other state government in the country urged or would have urged them to do otherwise because the federal statute at issue had been drafted in conjunction with the National Governors Association. See David A. Dana, The Case for Unfunded Mandates, 69 S. CAL. L. REV. 1, 7-9 (1995) (outlining the history and holding of New York v. United States).
17. Indeed, one of the rationales for federalism was the protection of the small states against the larger ones, and more generally the protection of geographically situated minority interests from majoritarian oppression. From the perspective of this federalism rationale, the fact that only one or a few states have adopted a nonfederal standard is not a reason to hold that the federal standard preempts nonfederal standards.
18. As we all know, state legislatures do not fully reflect-and as representative institutions are not really designed to fully, reflexively reflect-popular opinion within the states, but the same is true of Congress with respect to the national population. Nonetheless, state enactment or nonenactment of nonfederal standards is a proxy, albeit an imperfect one, for popular preferences, and those preferences enjoy legitimacy as democratic preferences by virtue of their expression via the institutions established by the federal and state constitutions.
19. U.S. CONST, art. VI, cl. 2.
20. As far as I have been able to discern, the question of ripeness in preemption cases has received no meaningful attention from legal academics or other commentators, despite the fact that ripeness is frequently an issue raised in federal preemption cases.
21. For a powerful argument against field preemption, see Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000).
22. Most notably, in determining whether Congress intended to abrogate state sovereign immunity against suit, the Supreme Court has insisted on plain statements of intent. See Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996) ("In order to determine whether Congress has abrogated the States' sovereign immunity, we ask . . . whether Congress has 'unequivocally expresse[d] its intent to abrogate the immunity.'" (quoting Green v. Mansour, 474 U.S. 64, 68 (1985))).
23. See Gasaway, supra note 12, at 30 ("[I]t is impossible for Congress to anticipate in advance or nullify afterward all the many state laws deserving of federal preemption. . . . [, and] a divided federal legislature cannot possibly negate, after-the-fact, all of the intrusions one expects from fifty quasiindependent and potentially hostile sovereigns.").
24. The Supreme Court's decision in Buckman Co. v. Plaintiffs' Legal Committee, 531 U.S. 341 (2001), strongly suggests that only regulation in a "field the states have traditionally occupied" will "warrant a presumption against finding federal pre-emption of a state-law cause of action." Id. at 347 (citations omitted).
25. See United States v. Locke, 529 U.S. 89, 90-91 (2000) (stating that there is no presumption against preemption, and suggesting there is a presumption in favor of preemption, in the arena of maritime regulation); Crosby v. Nat'l Trade Council, 530 US 363, 374 n.8 (2000) (acknowledging but "leav[ing] for another day" the question of presumptions for or against preemption in the arena of state laws implicating foreign affairs).
26. 469 U.S. 528 (1985).
27. Id at 539.
28. For an argument that foreign affairs preemption should not apply to state greenhouse gas emissions regulation, see Note, Foreign Affairs Preemption and State Regulation of Greenhouse Gas Emissions, 119 HARV. L. REV. 1877 (2006).
29. Indeed, because cars and trucks can and do cross state borders, they also can be conceived of as instrumentalities of interstate commerce.
30. See, e.g., Robin Craig, Will Separation of Powers Challenges "Take Care" of Environmental Citizen Suits? Article II, Injury-in-Fact, Private "Enforcers, " and Lessons from Qui Tam Litigation, 72 U. COLO. L. REV. 93, 121 n.136 (2001) (discussing recognition of the states as holders of the police power and "a strong... tradition of States being the primary caretakers of Americans' health, safety and welfare").
31. 529 U.S. 861 (2000).
32. Id. at 874 ("The basic question, then, is whether a common-law 'no airbag' action like the one before us actually conflicts with FMVSS 208. We hold that it does.").
33. The problem of different potential understandings of state authority is noted in Gasaway, supra note 12, at 35, which states that "[a]n obvious difficulty with this presumption [against preemption in areas of traditional state authority] is that its application can depend on how the inquiry is framed."
34. 514 U.S. 549(1995).
35. 529 U.S. 598 (2000).
36. See Morrison, 529 U.S. at 613 ("Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity."); Lopez, 514 U.S. at 551 ("Section 922(q) is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms.").
37. Lopez, 514 U.S. at 551.
38. Morrison, 529 U.S. at 601-02.
39. See Gonzales v. Raich, 545 U.S. 1 (2005); see also George D. Brown, Counterrevolution?-National Criminal Law After Raich, 66 OHIO ST. L.J. 947, 949 (2005) ("Noticeably absent from Justice Stevens' majority opinion were any references to federalism in general, or to such specific staples of New Federalism rhetoric as state sovereignty, spheres of state authority, the special status of criminal law enforcement as a state function, or the need to confine the national government in order to assure some form of balance.").
40. See David A. Dana, State Brownfields Programs as Laboratories of Democracy?, 14 N.Y.U. ENVTL. L.J. 86,97-100 (2005) (discussing the laboratories of democracy concept and thesis). 41 See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 543 (1985) ("The most obvious defect of a historical approach ... is that it prevents a court from accommodating changes in the historical functions of the States."); id. at 544 n.9 ("Indeed, the 'traditional' nature of a particular governmental function can be a matter of historical nearsightedness; today's self-evidently 'traditional' function is often yesterday's suspect innovation.").
41. On civic republicanism generally, see Frank Michelman, Law's Republic, 97 YALE L.J. 1493 (1988), and Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L. J. 1539 (1988).
42. Arguably there is a third argument, a "public choice" argument, which is that majorities do not determine political outcomes, but rather interest groups do, often wielding influence out of proportion to the size of their membership, and hence what Congress or the other branches of government do cannot be taken as an expression of majority sentiment but rather as the result of interest group influence. This argument proves too much: If the output of government institutions is assumed to be the result of an in-terest group competition that does not reflect majoritarian preferences and hence those outputs are to be deemed illegitimate, then nothing Congress enacts or an agency promulgates deserves respect. It is impossible to imagine courts openly proceeding on that assumption; and indeed the legitimacy of the courts themselves is undercut by the public choice argument, inasmuch as judicial appointments and support are themselves a product of the political process. For a brilliant development of this point, see Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31 (1991).
43. See U.S. CONST, art. II, § 1, cl. 2.
44. See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION 9 (2006) ("If I am correct that the Constitution is both insufficiently democratic, in a country that professes to believe in democracy, and significantly dysfunctional, in terms of the quality of government that we receive, then it follows that we should no longer express our blind devotion to it. ... [Y]ou should join me in supporting the call for a new constitutional convention . .. .").
45. For a compelling account of how the diverse aspects of our tradition can be combined in a unified conception, see James E. Fleming, Securing Deliberative Autonomy, 48 STAN. L. REV. 1 (1995).
46. See U.S. CONST, art. II, § 1, cl. 2; id. amend. XII.
47. I do not mean to endorse the view that only the preferences of individuals as individuals matter or should matter in American democracy. As Pam Karlan argues, that "atomistic" conception of democracy does not capture all the values we might want to foster under the rubric of "democracy," but, as she also notes, the atomistic conception dominates the Supreme Court's jurisprudence. See Pamela S. Karlan, Politics by Other Means, 85 VA. L. REV. 1697, 1716 (1999) (explaining that the Supreme Court has been "resolutely individualistic" in its conception of democracy in the context of voting rights challenges).
48. See Vieth v. Jubelirer, 541 U.S. 267, 356 (2004) (Breyer, J., dissenting) (citing GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 595 (1969)).
49. Most recently, Larry Kramer has powerfully argued that popular sovereignty is central to our constitutional tradition, as opposed to being something within our democracy that should be juxtaposed against a court-implemented Constitution that acts to constrain popular democracy. See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).
50. Michael S. Moore, Four Reflections on Law and Morality, 48 WM. & MARY L. REV. 1523, 1539 (2007).
51. See THE FEDERALIST NO. 39, at 182 (James Madison) (Terence Ball ed., 2003) ("According to the constitution of every State in the Union, some or other of the officers of government are appointed indirectly only by the people.").
52. THE FEDERALIST NO. 46 (James Madison), supra note 52, at 229.
53. Id; see KRAMER, supra note 50, at 87 (citing this passage with alterations as an indication of the essentially popular or political, rather than judicial, understanding of the Constitution during this period).
54. U.S. CONST, art. II, § 1, cl. 2. Until the passage of the Seventeenth Amendment, state legislatures also selected members of the United States Senate. Id. art. I, § 3, cl. 1, amended by id. amend. XVII, § 1.
55. See id. art. V (requiring that three-fourths of the states ratify a proposed amendment before it can be adopted).
56. Id. Madison also emphasized this point, in the context of explaining the dual federal and national character of the Constitution. See THE FEDERALIST NO. 39 (James Madison), supra note 52, at 187 ("In requiring more than a majority, and particularly, in computing the proportion by States, not by citizens, [the Constitution] departs from the national, and advances toward the federal character: In rendering the concurrence of less than the whole number of States sufficient, it loses again the federal, and partakes of the national character.").
57. THE FEDERALIST NO. 84 (Alexander Hamilton), supra note 52, at 422.
58. 536 U.S. 304, 316(2002).
59. See Penry v. Lynaugh, 492 U.S. 302, 334 (1989) ("In our view, the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.").
60. See Roper v. Simmons, 543 U.S. 551, 564 (2005) ("The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the mentally retarded. . . . [I]n this case, 30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach.").
61. See id. at 566 ("[N]o State that previously prohibited capital punishment for juveniles has reinstated it. This fact, coupled with the trend toward abolition of the juvenile death penalty, carries special force . . . ."). For other examples of the Supreme Court's reliance on the actions of the state legislatures, see Ford v. Wainwright, 477 U.S. 399, 408 (1986), which struck down capital punishment of the insane, where no other jurisdiction permitted this practice; Enmund v. Florida, 458 U.S. 782, 792 (1982), which struck down the death penalty for certain crimes of aiding and abetting felony murder, where only eight jurisdictions authorized such punishment; Coker v. Georgia, 433 U.S. 584, 595-96 (1977), where a plurality struck down the death penalty for the rape of an adult woman where only one jurisdiction authorized such punishment.
62. See Tonja Jacobi, The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus, 84 N.C. L. REV. 1089, 1090-91 (2006) ("[T]he Supreme Court Justices intensely disagree over how state legislation should be used to establish an evolving national consensus, but all maintain an uncritical acceptance of the flawed practice itself").
63. For a thoughtful summary of the different forms of intentionalism/ originalism in statutory interpretation, see Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 594-96 (1995).
64. William Eskridge has been among the most powerful explicators of versions of this approach. See WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION (1994); William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479 (1987). For an effort to bridge the gap between these approaches to statutory interpretation, see Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405,412-13 (1989).
65. See, e.g., Daniel R. Ortiz, Got Theory?, 153 U. PA. L. REV. 459, 477 (2004) (discussing the implications for democratic theory of "high rates of incumbent relection" and "declining competitiveness of congressional districts").
66. See Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2084 (2002) ("[W]here there is ambiguity in statutory meaning, the enacting government's preferences would overall be maximized by a general default rule that dynamically tracks the enactable preferences of the current government...." (emphasis omitted)).
67. Courts cannot assume, and do not assume, that Congress can always overcome inertia and other obstacles to expressing collective intent through concrete legislative action. If that were the assumption, courts could always abstain from hearing any preemption challenges, with the knowledge that Congress could then specify exactly what it wanted to preempt. Or, courts could as readily always find preemption, with the knowledge that Congress could then specify exactly what it did not want to preempt. See id. at 2105 (suggesting that Congress would understand the power of institutional inertia and hence intend for courts to approximate Congress's intent rather than wait for postenactment congressional action in those cases where it would be likely that institutional inertia would prevent congressional action).
68. Cf. Tank Truck Rentals, Inc. v. Comm'r, 356 U.S. 30, 35 (1958) (holding that the Court "will not presume that the Congress," in legislating, intended to subvert "the declared policy of a State").
69. See Bifulco v. United States, 447 U.S. 381, 387 (1980) ("This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." (citations and internal quotation marks omitted)).
70. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) ("While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make . . . policy choices . . . ."); Randolph J. May, Defin-ing Deference Down: Independent Agencies and Chevron Deference, 58 ADMIN. L. REV. 429, 432 (2006) (explaining that Chevron deference to executive branch agencies is grounded "primarily (but not exclusively) in notions of political accountability").
71. Courts can and do conflate background constitutional values and congressional intent by invoking the interpretive principle that a court will presume Congress intended to legislate in a manner that honors those constitutional values. See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172-73 (2001) (noting that this interpretive principle "stems from our prudential desire not to needlessly reach constitutional issues and our assumption that Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority").
72. On the "countermajoritarian difficulty" generally, see ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (2d ed. 1986); Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship, 95 Nw. U. L. REV. 933 (2001). State court judges are sometimes elected but sometimes not, and even when state judges are elected, rules and norms often provide the judges some protection from public opinion.
73. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003).
74. Indeed, for the same reasons, federal agency preemption-preemption rooted in an agency opinion, made pursuant to the agency's general delegated authority rather than in statutory text per se-is problematic from a majoritarian perspective.
75. Perhaps for this reason, the federal courts have scrupulously avoided relying upon the nondelegation doctrine, which purports to limit the scope of permissible congressional delegations of authority to agencies and which therefore would require a judicial finding as to the precise limits of permissible delegation. See generally Linda Schultz Bressman, Disciplining Delegation After Whitman v. American Trucking Ass'ns, 87 CORNELL L. REV. 452, 478 (2002) (suggesting that the Supreme Court does not "candidly acknowledg[e] its inability to require meaningful (or virtually any) congressional standards" for the delegation of authority to administrative agencies).
76. See Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2317 (2006) (identifying "democratic will" as a source of executive branch legitimacy).
77. See Merrill, supra note 8, at 185-87 (advocating a preemption approach in which courts would employ as a default rale that it is congressional intent not to permit balkanized regulation in the nation as a whole).
78. See, e.g., United States v. O'Brien, 391 U.S. 367, 377 (1968) ("[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance ofthat interest.").
79. The courts, moreover, may never explicitly adopt even such a ballpark approach to the balancing of certainty of congressional intent regarding preemption and the weight of democratic support for nonfederal alternatives. Indeed, they may never explicitly discuss the weight of democratic support for a nonfederal standard; they may never openly acknowledge in preemption cases the relevance of the population size of the state whose law has been challenged or how many other states have also adopted a nonfederal standard. But even if this is so, the courts sub silentio may consider the weight of democratic support when trying to decide cases that otherwise seem hard or close. Litigants would provide courts with information regarding democratic weight if they came to suspect that courts implicitly would consider that information in deciding preemption questions. A state defending against a preemption challenge would want to inform the court, if only by way of background, that other states have adopted a nonfederal standard, if that is the case, and the party bringing the preemption challenge would want to point out that other states have not adopted a nonfederal standard, if that is the case.
80. In Geier v. American Honda Motor Co., one of the amicus briefs documented and emphasized how many states had adopted a standard, rule, or doctrine regarding air bags that was similar to the one at issue in the case before the Supreme Court. Brief for the States of Missouri et al. as Amici Curiae Supporting Petitioners at 16-17 & nn.6-8, Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) (No. 98-1811), 1999 WL 973859, at *16-17 & nn.6-8. In cases involving the reach of federal regulatory jurisdiction under the Commerce Clause, it is not relevant as a matter of formal doctrine how many states have similar state statutes and regulations addressing the same subject matter. The prevalence of state programs simply has no bearing on the criteria that the Supreme Court has embraced for determining congressional power under the Commerce Clause, most notably whether the regulated activity has substantial effects on interstate commerce or implicates instrumentalities of interstate commerce. However, in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), the challengers to federal wetlands regulation on statutory interpretation and Commerce Clause grounds highlighted the number of states that had established state wetlands programs, apparently to suggest that federal action is not needed to fill a regulatory void. Brief for the Petitioner at 29-30, SWANCC, 531 U.S. 159 (No. 99-1178), 2000 WL 1041190, at *29-30. And in similar fashion, the challengers to federal violence-against-women legislation in United States v. Morrison emphasized that the states already had laws in place addressing violence against women and that the federal law was therefore unnecessary. See Brief for the State of Alabama as Amicus Curiae Supporting Respondents at app. Ia, United States v. Morrison, 529 U.S. 598 (2000) (Nos. 99-5, 99-29), 1999 WL 1191432, at *25.
81. See Massachusetts v. EPA, 127 S. Ct. 1438, 1460 (2007) ("That subsequent Congresses have eschewed enacting binding emissions limitations to combat global wanning tells us nothing about what Congress meant when it amended [the Clean Air Act]....").
82. See 42 U.S.C. §§ 7543(b), 7507 (2000); see also supra note 4.
83. See 49 U.S.C. §§ 32,902(f), 32,919 (2000); see also supra note 5.
84. The Court in Massachusetts v. EPA avoids the question of how one could reconcile global warming-related regulation of carbon emissions and the NHTSA framework, but does reject the argument that the two are necessarily in conflict. See 127 S. Ct. at 1461-62 ("EPA finally argues that it cannot regulate carbon dioxide emissions from motor vehicles because doing so would require it to tighten mileage standards, a job (according to EPA) that Congress has assigned to DOT.... But that DOT sets mileage standards in no way licenses EPA to shirk its environmental responsibilities. EPA has been charged with protecting the public's 'health' and 'welfare' . . . , a statutory obligation wholly independent of DOT'S mandate to promote energy efficiency.... The two obligations may overlap, but there is no reason to think the two agencies cannot both administer their obligations and yet avoid inconsistency." (internal citations omitted)).
85. See Nina A. Mendelson, A Presumption Against Agency Preemption, 102 NW. U. L. REV. 695, 706-10 (2008) (demonstrating the range of possible inferences regarding an agency's authority to preempt from a general congressional delegation to an agency of regulatory jurisdiction under a statute).
86. See Massachusetts, 127 S. Ct. at 1460 ("The Clean Air Act's sweeping definition of 'air pollutant' includes any air pollution agent or combination of such agents, including any physical, chemical ... substance or matter which is emitted into or otherwise enters the ambient air . . . .' On its face, the definition embraces all airborne compounds of whatever stripe, and underscores that intent through the repeated use of the word 'any.' Carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons are without a doubt 'physical [and] chemical . . . substance[s] which [are] emitted into ... the ambient air.' The statute is unambiguous." (alterations in original) (citations omitted)).
87. 2 emissions are within the scope of EPA's authority to regulate,' even as he recognized that EPA had so far declined to exercise that authority." (citation omitted)).
88. They certainly do receive some information and pressure that way, as Larry Kramer has emphasized. See Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215, 257-87 (2000) (emphasizing that the political parties serve as a conduit for state concerns at the federal level); see also Goodwin Liu, Education, Equality and National Citizenship, 116 YALE L.J. 330,405 (2006) ("[T]he national political process as a whole, including the informal web of federal-state relationships and obligations facilitated by political parties and advocacy groups, contains important checks on federal usurpation of state prerogatives.").
89. See MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 48, 53-54 (1971) (explaining why large groups fail to produce an optimal amount of the public good they advocate for or otherwise seek to secure).
90. See Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 HARV. L. REV. 553, 563 (2001) ("The theory of collective action does not predict greater success for environmental groups at the federal level. Much the opposite: it suggests that, given the necessarily larger size of groups acting at the federal level, groups will in fact be less effective than they are at the state level."). While state politics may be a more favorable arena for environmentalists because they will be a smaller group at the state level, it is also true that the groups opposing regulation may be smaller and more cohesive at the state level: the automobile and oil corporations opposing fuel economy regulations at the federal level are not as small or concentrated a group as GM and Ford operating in the Michigan political venue.
91. Cf. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 34-35 (2007) (suggesting that public interest groups must rely on "publicity for their positions, using the press, TV, and congressional hearings to enlist public support").
92. Editorial, States are Showing Up Congress in Commitment to Energy Alternatives, ORLANDO SENTINEL, Apr. 16,2007, at A10.
93. See Andrzej Zwaniecki, U.S. Dep't of State, Actions by U.S. States Advance Debate on Climate Change, AMERICA.GOV, Apr. 24, 2007, http://usinfo.state.gov/xarchives/display.html?p= washfileenglish&y=2007&m=April&x=20070424135340saikceinawzl. 437014e-02 ("The Bush administration and Congress are looking closely at state actions as a useful source of analysis and lessons learned. In the past, U.S. states have taken the lead on such issues as air pollution control and welfare reform, and have experimented with policies that later helped shape federal laws and regulations.").
94. Cf. Hills, supra note 91, at 30 (suggesting that businesses' interest in uniformity may lead them to press for federal standards even though "[t]here is always a risk that, once a regulatory issue is federalized, members of Congress will have political incentives to look like they are tough on polluters, consumer safety, etc., and therefore ensure that federal standards are as stringent as the toughest state standards").
95. See Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967) (holding that the test for prudential ripeness requires balancing of the "fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration").
96. This doctrine originated with Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1983).
97. This doctrine originated with Younger v. Harris, 401 U.S. 37 (1971).
98. See Scott A. Keller, Note, Judicial Jurisdiction Stripping Masquerading as Ripeness: Eliminating the Williamson County State Litigation Requirement for Regulatory Takings Claims, 85 TEX. L. REV. 199, 202 (2006) (describing the Williamson rule that "a federal regulatory takings claim is not ripe until a party seeks 'compensation through the procedures the State had provided for doing so'" (quoting Williamson, 473 U.S. at 194)); see also id. at 202-08 (discussing subsequent cases upholding the Williamson rule).
99. See, e.g., Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 348 (2d Cir. 2005) ("Finally, since Williamson County, courts have recognized that federalism principles also buttress the finality requirement."); Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1291 (3d Cir. 1993) (holding that claims in a zoning dispute were not ripe and recognizing that local bodies "are better able than federal courts" to address such disputes (internal quotation marks omitted)); Spence v. Zimmerman, 873 F.2d 256, 262 (11th Cir. 1989) ("We stress that federal courts do not sit as zoning boards of review and should be most circumspect in determining that constitutional rights are violated in quarrels over zoning decisions."); Hoehne v. County of San Benito, 870 F.2d 529, 532 (9th Cir. 1989) (acknowledging that Williamson County and its progeny "guard against the federal courts becoming the Grand Mufti of local zoning boards"); Littlefield v. City of Afton, 785 F.2d 596, 607 (8th Cir. 1986) ("We are concerned that federal courts not sit as zoning boards of appeals."), overruled on other grounds by Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 n.2 (8th Cir. 1992).
100. Stewart E. Sterk, The Demise of Federal Takings Litigation, 48 WM. & MARY L. REV. 251, 292 (2006). It bears noting that one of the rationales for the Williamson doctrine-that the full harm or burden to the property owner cannot be known until the state processes are complete, and that harm or burden is itself relevant to the resolution of whether there is a violation of federal law, see Williamson, 473 U.S. at 186-94-also would support deferral of federal preemption challenges. The actual interference of the state with federal programs cannot be known fully until state processes are completed. The nature and magnitude of that interference is relevant as part of the federal preemption inquiry inasmuch as that inquiry focuses upon whether state law poses an obstacle to or conflicts with federal law.
101. George D. Brown, When Federalism and Separation of Powers Collide-Rethinking Younger Abstention, 59 GEO. WASH. L. REV. 114, 115 (1990) ("Younger thus cuts a large swath in federal trial court jurisdiction. In terms of cases affected, it is probably the most significant of the abstention doctrines."). So-called Pullman abstention is a similarly federalism-justified abstention doctrine, in which the federal courts abstain from hearing cases regarding a state law if a state court interpretation of the law might avoid the need for federal constitutional review. See ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 12.2.1, at 763-67 (4th ed. 2003). Another federalism-based abstention doctrine, later codified in the Tax Injunction Act, provides that federal courts refrain from enjoining or interfering with the collection of state taxes where a remedy in state court may be available. See California v. Grace Brethren Church, 457 U.S. 393,411 (1982).
102. Younger, 401 U.S. at 44-45. The federal courts following Younger have cited this federalism rationale for Younger abstention. See, e.g., Citizens for a Strong Ohio v. Marsh, 123 F. App'x 630, 633-34 (6th Cir. 2005) (reviewing the expansion of the scope of Younger abstention).
103. See Cent. Valley Chrysler-Jeep, Inc. v. Witherspoon, No. CV F 04-6663 AWI LJO, 2007 WL 135688, at *7-9 (E.D. Cal. Jan. 16,2007).
104. See Defendant and Defendant-Intervenors' Reply Memorandum in Support of Their Motion for Summary Judgment and Dismissal at 2, Cent. Valley Chrysler-Jeep (No. CV F 04-6663 AWI LJO), 2006 WL 3761392, at *2 ("Plaintiffs seek to have the Court decide matters with speculative relevance and without reference to the EPA waiver process that may resolve or moot the controversy or, at the very least, change the factual and legal underpinnings of the issues in this case.").
105. See id. at 8-9.
106. 461 U.S. 190 (1982).
107. Id. at 198.
108. Id at 201.
109. See, e.g., Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1237-39 (10th Cir. 2004) (holding that the preenforcement preemption challenge to a range of Utah laws regarding spent nuclear fuel involved the legal question of field preemption and hence was ripe).
110. See, e.g., Cline v. Hawke, 51 F. App'x 392 (4th Cir. 2002) (de facto rejecting a ripeness challenge to state insurance regulations that had not yet been enforced); City of Auburn v. Qwest Corp., 260 F.3d 1160, 1171 (9th Cir. 2001) (holding that federal preemption challenges to local franchising ordinances were ripe for federal review, in part on the ground that a preemption claim "presents a pure question of law").
111. 239 F.3d 333 (3d Cir. 2001).
112. Id. at 339.
113. NE Hub Partners, L.P. v. CNG Transmission Corp., No. Civ.A. 1:CV-99-0082, 2000 WL 33912020, at *9-10 (M.D. Pa. Apr. 10, 2000).
114. See id at *9 (citing FIa. Power & Light Co. v. EPA, 145 F.3d 1414, 1421 (D.C. Cir. 1988); Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 735 (1998)). The district court in NE Hub Partners concluded that the "the 'possibility' that state regulatory officials might enter an order that would interfere with the federal regulatory scheme" was insufficient to render the case ripe for review. Id. at *8.
115. NE Hub Partners, 239 F.3d at 345-46.
116. Id.
117. For a preemption case that may employ implicitly the approach I advocate, see Suburban Trails, Inc. v. New Jersey Transit Corp., 800 F.2d 361, 365-68 (3d Cir. 1986), which held a preenforcement preemption challenge not to be ripe, and cited Williamson as supporting authority.
118. See 42 U.S.C. § 7543(a)-(b) (2000).
119. See id. § 7507.
120. See Vermont Air Pollution Control Regulations (2007), http://www.anr.state.vt.us/air/docs/apcregs.pdf. The federal district court in Vermont recently rejected the carmakers' challenge to these regulations, essentially on the ground that the regulations do not explicitly and necessarily dictate changes in fuel economy, and the federal district in California followed suit, heavily relying on the Vermont decision. An appeal in both cases is highly likely. See Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, Nos. 2:05-CV-302, 2:05-CV-304, 2007 WL 2669444 (D. Vt. Sept. 12, 2007); Order on Motions and Counter-Motions for Summary Judgment on Plaintiffs' Claims for Relief on EPCA Preemption and Foreign Policy Preemption, Cent. Valley Chrysler-Jeep, Inc. v. Witherspoon, No. CV F 04-6663 AWI LJO (E.D. Cal. Dec. 11, 2007), available at http://www.calcleancars.org/legal/11_Dec_07_Order. pdf.
121. The EPA has granted fifty waivers to California since the original passage of the Clean Air Act. See John M. Broder, California Wants Strict Auto Emission Rules, N.Y. TIMES, May 23, 2007, at A19. The EPA recently-but before the Supreme Court decision in Massachusetts v. EPA, 127 S. Ct. 1438 (2007)-implied that it would deny a waiver because federal law delegated exclusive authority for fuel economy standards to the federal Department of Transportation, even though the language of the Clean Air Act provision would not seem to allow denial of a waiver on the basis of the EPA Administrator's opinion on this kind of legal issue. See Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,929 (Sept. 8, 2003) (explaining that the EPA concludes that "in light of ... Congress' decision to give DOT authority to regulate fuel economy under EPCA, it is clear that EPA does not have authority to regulate motor vehicle emissions of CO2 and other [greenhouse gases] under the [Clean Air Act]" and that DOT standards are "the only statutory vehicle for regulating the fuel economy of cars and light duty trucks").
122. Cf. Carlson, supra note 7, at 311-14 (discussing dual, cooperative, and modified federalism as three models). Under any of these models the federal and state governments could and presumably-given the nature of environmental issues-must coordinate with respect to enforcement efforts. See generally Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 DUKE L.J. 795, 806-13 (2005) (outlining the debate over federal versus state regulation and proposing greater cooperation between federal and state agencies).
123. Another possible disadvantage is that the LAS generally would be one of the relatively few states with a strong tradition of regulatory innovation and activism, such as California or Massachusetts, and that might result in charges or at least perceptions of favoritism.
124. See Carlson, supra note 7, at 315 (suggesting, with respect to the Clean Air Act, that "[b]y bestowing leadership responsibilities on California alone, Congress may facilitate the centralization and coordination of research on mobile sources in one state in contrast to the more scattershot approach that would likely occur if numerous jurisdictions could regulate"). Carlson focuses on the benefits of geographic concentration, but there may be benefits other than geography from concentration in a single state regulatory venue. For example, for the mainstream national environmental groups based largely in Washington, D.C., it is more manageable and feasible for them to meaningfully monitor and participate in one state rulemaking process than in thirty or fifty. Cf. David A. Dana, The New "Contractant™ " Paradigm in Environmental Regulation, 2000 U. ILL. L. REV. 35 (discussing how the dispersion of sitespecific regulatory experiments increases monitoring costs).
125. The proliferation of state brownfields voluntary cleanup laws in response to state frustration with the federal Superfund model provides an example of the problems with a multiplicity of state statutory experiments: the statutes differ from one another in important respects, and there has been, to my knowledge, no meaningful effort to assess the costs and benefits of each of these statutes in practice. See Dana, supra note 40, at 100-01 ("There certainly are some notable differences among state brownfields statutes and regulations, but states make no effort to specify and make public the details of particular cleanups. We do not know which cleanups fail to follow formal requirements, comply with those requirements or go beyond them. Nor is there available data on the pre-cleanup conditions at particular sites that might serve as baselines for assessments of post-cleanup outcomes."); see also Heidi Gorovitz Robertson, Legislative Innovation in State Brownfields Redevelopment Programs, 16 J. ENVTL. L. & LITIG. 1, 47-63 (2001) (describing various state brownfields redevelopment programs and their differences).
126. For example, one could imagine certain midwestern agricultural states adopting something like the California greenhouse gas standards for cars if they were able to tailor those standards to make them more supportive of vehicles that have been adapted for partial of full use of ethanol.
127. The LAS model has been used in only one context-car emissions-but in that context we have witnessed rapid adoption of the California regulations by other states. Outside the LAS context, there has been a wide range in the speed with which states follow one another, but in settings as diverse as corporate law reforms and renewable energy portfolio requirements, there are sometimes substantial lags between the first-adopting state and the others. See BARRY G. RABE, PEW CTR. ON GLOBAL CLIMATE CHANGE, RACE TO THE TOP: THE EXPANDING ROLE OF U.S. STATE RENEWABLE PORTFOLIO STANDARDS 3 (2006), available at http://www.pewclimate.org/docUploads/RPSReportFinal.pdf (explaining that Iowa adopted the first renewable portfolio standard in 1991, followed by three states in 1997, and ten others in 2004 and 2005); Michael Abramowicz, Speeding Up the Crawl to the Top, 20 YALE J. ON REG. 139, 169 (2003) ("[T]o the extent that corporate law evolves at all, it will evolve at the pace of a crawl.").
128. See Securing America's Chemical Plants, PREEMPTION ALERT, Aug. 2006, at 2-3, www.uspirg.org/html/preemptionalert/august06. pdf (explaining that New Jersey regulatory initiatives prompted congressional consideration of the Chemical Anti-Terrorism Act of 2005, and that this legislation is ambiguous as to the scope of permissible state authority).