A collective action perspective on ceiling preemption by federal environmental regulation: The case of global climate change

Northwestern University Law Review

Volumn 102, Issue 2, 2008, Pages 579-648

  Glicksman, Robert L ^a   Levy, Richard E ^a  

^a UNIVERSITY OF KANSAS   (United States)

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EID: 49849100203     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (321)

1. Collective action theory examines the dynamics of individual behavior in cooperative group settings. According to the seminal theories of Mancur Olson, because the benefits of collective behavior are often a species of public good that all members of the collective will enjoy regardless of their contribution to its creation, individual members of a collective have the incentive to "free ride" on the efforts of Others. See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS (1965). For further discussion of collective action theory, see generally JAMES S. COLEMAN, INDIVIDUAL INTERESTS AND COLLECTIVE ACTION (1986); MICHAEL HECHTER, PRINCIPLES OF GROUP SOLIDARITY (1987); MANCUR OLSON, THE RISE AND DECLINE OF NATIONS: ECONOMIC GROWTH, STAGFLATION, AND SOCIAL RIGIDITIES (1982); DAVID REISMAN, THEORIES OF COLLECTIVE ACTION: DOWNS, OLSON AND HIRSCH (1990); TODD SANDLER, COLLECTIVE ACTION: THEORY AND APPLICATIONS (1992); and THOMAS SCHWARTZ, THE LOGIC OF COLLECTIVE CHOICE (1986). Collec-tive action theory can also be applied to the behavior of states in a federal system, a theme that has been developed elsewhere by one of the authors. See RICHARD E. LEVY, THE POWER TO LEGISLATE: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 83-90 (2006); Richard E. Levy, Federalism and Collective Action, 45 U. KAN. L. REV. 1241 (1997); see also William W. Buzbee, Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89 IOWA L. REV. 1 (2003) (characterizing collective action incentives for state underregulation as a tragedy of the commons problem); Clayton P. Gillette, The Exercise of Trumps by Decentralized Governments, 83 VA. L. REV. 1347 (1997) (using collective action principles to analyze the relatively exceptional circumstances under which state or local governments might be allowed to override federal or central policy decisions); Ken Kollman et al., Decentralization and the Search for Policy Solutions, 16 J.L. ECON. & ORG. 102 (2000) (employing mathematical and computational models to assess the effectiveness of decentralized experimentation by federal subunits of government in generating superior policy solutions).
2. See infra Part I.A.
3. For further discussion of regulatory responses to global climate change, see GLOBAL CLIMATE CHANGE AND U.S. LAW (Michael B. Gerrard ed., 2007); Kirsten Engel, State and Local Climate Change Initiatives: What Is Motivating State and Local Governments to Address a Global Problem and What Does This Say About Federalism and Environmental Law?, 38 URB. LAW. 1015 (2006).
4. Under the Constitution, the federal government has authority to regulate through necessary and proper legislation within the fields of enumerated powers. E.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316(1819). In some areas, states have been deprived of the authority to regulate and federal power is exclusive. See U.S. CONST. art. I, § 10. In all other areas states retain their power, which means that federal and state authority are concurrent in many fields. The Supreme Court has largely abandoned the view, often articulated as the basis for a restrictive reading of federal authority, that federal and state power are mutually exclusive. See generally LEVY, supra note 1, at 46-50, 60-62.
5. See generally Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189 (1986) (reviewing the history of federal regulation).
6. This includes the "Chicago School" law and economics movement and supporters of public or social choice theory. See generally Maxwell L. Stearns, Restoring Positive Law and Economics: Introduction to Public Choice Theme Issue, 6 GEO. MASON L. REV. 709, 711-25 (1998) (discussing the history of law and economics and public choice theory).
7. Examples include the Reagan Revolution and the Contract with America. The "Reagan Revolution" is a popular shorthand term to describe the reinvigoration of conservatism fueled by the election and administration of Ronald Reagan, which included a significant emphasis on deregulation. See generally CHARLES FRIED, ORDER AND LAW: ARGUING THE REAGAN REVOLUTION - A FIRSTHAND ACCOUNT (1991); DAVID A. STOCKMAN, THE TRIUMPH OF POLITICS: HOW THE REAGAN REVOLUTION FAILED (1986); Ted V. McAllister, Reagan and the Transformation of American Conservatism, in THE REAGAN PRESIDENCY: PRAGMATIC CONSERVATISM AND ITS LEGACIES 40, 40-60 (W. Elliot Brownlee & Hugh Davis Graham eds., 2003). The Contract with America, devised by incoming Speaker of the House of Representatives Newt Gingrich, was the focal point of the 1994 congressional elections and served as a policy blueprint for the first one hundred days of the 104th Congress. One of its principal objectives was the "restoration of opportunity through regulatory and tax relief." Robert L. Glicksman & Stephen B. Chapman, Regulatory Reform and (Breach of) the Contract with America: Improving Environmental Policy or Destroying Environmental Protection?, 5 KAN. J.L. & PUB. POL'Y 9, 16 (1996).
8. Of course, this sort of political change is never permanent, and the pendulum may have already begun to swing in the other direction. Proponents of regulation have regrouped and challenged the arguments of opponents of regulation. See, e.g., FRANK ACKERMAN & LISA HEINZERLING, PRICELESS: ON KNOWING THE PRICE OF EVERYTHING AND THE VALUE OF NOTHING (2004); A NEW PROGRESSIVE AGENDA FOR PUBLIC HEALTH AND THE ENVIRONMENT (Christopher H. Schroeder & Rena Steinzor eds., 2005); RESCUING SCIENCE FROM POLITICS: REGULATION AND THE DISTORTION OF SCIENTIFIC RESEARCH (Wendy Wagner & Rena Steinzor eds., 2006); SIDNEY A. SHAPIRO & ROBERT L. GLICKSMAN, RISK REGULATION AT RISK: RESTORING A PRAGMATIC APPROACH (2003); STRATEGIES FOR ENVIRONMENTAL SUCCESS IN AN UNCERTAIN JUDICIAL CLIMATE (Michael Allan Wolf ed., 2005). In some areas, moreover, experience with deregulation has served to remind us why regulation was seen as necessary in the first place. See, e.g., Sidney A. Shapiro & Joseph P. Tomain, Rethinking Reform of Electricity Markets, 40 WAKE FOREST L. REV. 497 (2005); Jacqueline Lang Weaver, Can Energy Markets Be Trusted? The Effect of the Rise and Fall of Enron on Energy Markets, 4 HOUS. BUS. & TAX L.J. 1 (2004); cf. Rena Steinzor, "You Just Don't Understand" - The Right and the Left in Conversation, 32 ENVTL. L. REP. 11,109 (2002) (analyzing defects in California air pollution emissions trading system).
9. See, e.g., SIDNEY A. SHAPIRO & JOSEPH P. TOMAIN, REGULATORY LAW AND POLICY: CASES AND MATERIALS 20-21 (3d ed. 2003) (summarizing deregulation of transportation, energy, and telecommunications markets).
10. See, e.g., id. at 22-23 (summarizing such requirements).
11. In some of these cases, aggressive judicial review has taken the form of the imposition on agencies of rigorous burdens of proof to justify regulation. See, e.g., Corrosion Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir. 1991). In others, it has taken the form of the invocation of canons of statutory construction (such as the canon that statutes should be interpreted in such a way as to avoid raising constitutional issues) to narrowly interpret the scope of federal environmental legislation. See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001); Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980) (plurality opinion). In still others, the courts have found environmental legislation or regulations to be unconstitutional. See, e.g., Am. Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), rev'd in part, 531 U.S. 457 (2001). See generally Richard E. Levy & Robert L. Glicksman, Judicial Activism and Restraint in the Supreme Court s Environmental Law Decisions, 42 VAND. L. REV. 343, 363-85 (1989) (discussing the Supreme Court's substantive review of prodevelopment and proenvironmental decisions by agencies).
12. See, e.g., Healthy Forests Restoration Act of 2003, 16 U.S.C. §§ 6514-6515 (Supp. III 2003) (subjecting various logging activities to less expansive environmental assessment requirements than those that normally apply under the National Environmental Policy Act and restricting the class of persons who may seek judicial review of the federal government's authorization of those activities).
13. On several occasions, for example, Congress has exempted military activities from environmental legislation or subjected those activities to watered down versions of that legislation. See Robert L. Glicksman, From Cooperative to Inoperative Federalism: The Perverse Mutation of Environmental Law and Policy, 41 WAKE FOREST L. REV. 719, 767-68 (2006) (discussing legislation creating exemptions for military activities from the Endangered Species Act, the Migratory Bird Treaty Act, and the Marine Mammal Protection Act).
14. For a discussion of some of those executive orders, see ROBERT L. GLICKSMAN ET AL., ENVIRONMENTAL PROTECTION: LAW AND POLICY 214-17 (5th ed. 2007).
15. For a thorough survey of the efforts engaged in by all three branches of the federal government whose effect has been to weaken federal environmental regulation, see Glicksman, supra note 13, at 754-78.
16. John L. Horwich, Montana's Constitutional Environmental Quality Provisions: Self-Execution or Self-Delusion?, 57 MONT. L. REV. 323, 329-30 (1996); Omar N. White, Note, The Endangered Species Act's Precarious Perch: A Constitutional Analysis Under the Commerce Clause and the Treaty Power, 27 ECOLOGY L.Q. 215, 250 (2000).
17. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005); Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004); Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000); Clean Air Mkts. Group v. Pataki, 338 F.3d 82 (2d Cir. 2003); Ass'n of Int'l Auto. Mfrs. v. Comm'r, Mass. Dep't of Envtl. Prot, 208 F.3d 1 (1st Cir. 2000).
18. See William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction, 82 N.Y.U. L. REV. 1547 (2007); see also Joshua D. Sarnoff, The Continuing Imperative (But Only from a National Perspective) for Federal Environmental Protection, 7 DUKE ENVTL. L. & POL'Y F. 225, 284 n.202 (1997) (employing similar terminology).
19. Technically, the state law might remain on the books and could be enforced by the state alongside the federal statute even if the state law creates a less protective environmental standard, but this would not impede the application of the federal standard and might actually enhance protection of the environment in two ways. First, a state's enforcement of its laws would increase the likelihood that violators would be caught and successfully prosecuted. Second, if a violation is prosecuted by both the state and federal governments, the total penalty would be increased. Thus, displacing state authority to enforce its own environmental regulations as a supplement to federal enforcement would really be a form of ceiling preemption.
20. U.S. CONST. art. VI, cl. 2.
21. See, e.g., Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928 (9th Cir. 2002) (engaging in a lengthy analysis of whether a local ordinance authorizing the city to investigate and remediate contamination of soil and groundwater by hazardous substances was preempted by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, and concluding that some aspects of the local law were preempted, but that others were not). Compare Welchert v. Am. Cyanamid, Inc., 59 F.3d 69 (8th Cir. 1995) (holding that a cause of action for breach of express warranty was preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136y), with Roberson v. E.I. Dupont De Nemours & Co., 863 F. Supp. 929 (W.D. Ark. 1994) (holding that an action for breach of express warranty that relies upon statements made on an EPA-approved label is not preempted by FIFRA).
22. For further discussion of this issue, see infra Part II.C.
23. See GLICKSMAN ET AL., supra note 14, at 562-63. The Kyoto Protocol is an international treaty in which most of the world's industrialized nations agreed to reduce emissions of gases that contribute to global climate change. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997, 37 I.L.M. 22 (1998), available at http://unfccc.int/essential_background/kyoto_ protocol/items/1678.php.
24. 127 S. Ct. 1438 (2007).
25. The Massachusetts case is discussed infra notes 155-63 and accompanying text.
26. Although the Massachusetts case did not directly present the question whether federal law currently preempts state law or would do so if federal regulatory programs were adopted, the decision has some bearing on the preemption question, particularly as to whether GHG emissions restrictions are preempted by federal regulation of fuel economy standards. See infra notes 256-57 and accompanying text.
27. See Glicksman, supra note 13, at 781-86. See generally Kirsten H. Engel, Mitigating Global Climate Change in the United States: A Regional Approach, 14 N.Y.U. ENVTL. L.J. 54 (2005) (describing "the aggregation of state or local government responses to climate change through regional cooperation").
28. See Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151, 1189 (E.D. Cal. 2007) (granting summary judgment against the industry on preemption claims); Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007) (ruling against industry's preemption claims after trial).
29. U.S. CONST. art. VI, cl. 2.
30. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819).
31. Thomas W. Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727, 731 (2008).
32. E.g., Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (plurality opinion); Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 203-04 (1983). For a useful summary of the doctrine, see ERWIN CHEMERINSKY, CONSTITUTIONAL LAW, PRINCIPLES AND POLICIES § 5.2 (3d ed. 2006). Although the current doctrine is not without its critics, see, e.g., Viet D. Dinh, Reassessing the Law of Preemption, 88 GEO. L.J. 2085 (2000); Caleb Nelson, Preemption, 86 VA. L. REV. 225 (2000), the current doctrine appears to be relatively stable and we will take it as a given.
33. There remains considerable debate within the Court regarding how to determine legislative purposes. See generally John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001) (discussing debate within the Supreme Court over the proper approach to statutory construction). For "textualists" like Justices Scalia and Thomas, the purposes of federal legislation should be determined solely on the basis of statutory text (either through an explicit statement of purposes or inferences from the language and structure of the statute). Other members of the Court, however, would also rely on legislative history to ascertain congressional purposes. This debate is directly relevant to how purposes are identified but not to their implications for the analysis of preemption, even if textualists might be inclined to focus more heavily on other kinds of inferences from statutory text. See Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 388-91 (2000) (Scalia, J., joined by Thomas, J., concurring) (criticizing the majority's reliance on legislative history and finding the intent of Congress to preempt state law to be "perfectly obvious on the face of the statute"); Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 616-23 (1991) (Scalia, J., concurring) (criticizing majority's recourse to and characterization of legislative history in concluding that FIFRA did not preempt local regulation of pesticides, but reaching the same result based upon the language and structure of the Act). In the context of this Article, we take no position on this debate or on how the statutory purposes relevant to preemption should be identified.
34. One might conceive of a circumstance under which Congress has the authority to enact the underlying statute, but the inclusion of a preemption provision would be excessive or unrelated to the statutory purpose, or would impinge to such an extent on state sovereignty that it would not be "necessary and proper" to a law within the enumerated powers of Congress. But we are not aware of any cases in which the Court has suggested that "unnecessary" or "improper" preemption might be invalid or has struck down preemption provisions on such grounds. Avoiding unnecessary or excessive intrusions on state regulatory authority is the principal justification for the presumption against preemption, however. See infra notes 47-49 and accompanying text.
35. E.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992) ("Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not preempted."). A similar inference arises in the reverse situation of a statute containing an express savings provision stating that certain state laws are not preempted. In such cases, the negative inference arises that state laws that do not fall within the savings clause are preempted. See Gade, 505 U.S. 88; cf. New Mexico v. Gen. Elec. Co., 467 F.3d 1223, 1247 (10th Cir. 2006) (holding that CERCLA's "comprehensive" liability scheme for natural resource damages preempts state remedies designed to achieve something other than the restoration, replacement, or acquisition of a contaminated natural resource, notwithstanding CERCLA's savings clauses, because there is no evidence that Congress intended to undermine CERCLA's carefully crafted liability scheme through the savings clauses).
36. Congress might expressly preempt some laws in order to remove doubt, without necessarily intending to save other state laws, leaving other preemption questions to be resolved by traditional doctrine. For example, a state law outside the scope of the preemption provision might nonetheless conflict with federal law. See, e.g., Sprietsma v. Mercury Marine, 537 U.S. 51, 64 (2002) (recognizing the validity of a theory that state law that is not expressly preempted might nevertheless be preempted by the entire statute); Geier v. Am. Honda Motor Co., 529 U.S. 861, 869 (2000) (stating that the presence of either a savings clause or an express preemption provision "does not bar the ordinary working of conflict pre-emption principles," such as implicit conflict preemption); cf. Landgraf v. US1 Film Prods., 511 U.S. 244 (1994) (refusing to draw a negative inference from an express retroactivity provision and resolving the remaining retroactivity issue through judicial retroactivity doctrine).
37. See, e.g., Cipollone, 505 U.S. at 520-31 (plurality opinion) (concluding that some, but not all, state common law tort claims against cigarette manufacturers fell within the scope of an express preemption provision). The analysis in such cases focuses in the first instance on the statutory text, a focus that is shared in cases like Gade in which preemption arises by negative implication from a savings clause and the focus is the scope of that clause. For that reason, it might make sense to group express preemption and Gade-type cases together under the rubric "textual" preemption.
38. As noted previously, see supra note 33, in this sense federal preemption issues are part and parcel of a larger debate between textualist and intentionalist schools of statutory construction. The implications of textualism for the presumption against preemption are discussed infra notes 53-56 and accompanying text.
39. See, e.g., Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 325 (1997) (stating that in determining whether a state law is preempted under ERISA's express preemption provision, the Court will look to '"the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,' as well as to the nature of the effect of the state law on ERISA plans" (citation omitted) (quoting N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 656 (1995))). It is worth noting that Justice Thomas - a strict textualist - quoted this language with approval in Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141, 147 (2001), reinforcing the conclusion that statutory purposes are relevant to the scope of express preemption provisions even for the textualists on the Court.
40. Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 605 (1991) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)) (bracketed numbers added).
41. See, e.g., Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984) (concluding that state common law tort actions were not within the field occupied by federal safety regulation of nuclear power plants); Pac. Gas & Elec. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190 (1983) (holding that an economically based moratorium on nuclear power plants was not within the field occupied by federal regulation of nuclear power plant safety). The determination whether state law falls within the scope of a preempted field resembles the determination whether state law falls within the scope of an express preemption provision. See supra note 37 and accompanying text.
42. Thus, for example, if both the federal and state statutes impose emissions limitations (but do not dictate the method of compliance) and the state limitations are more stringent that the federal ones, it is not impossible to comply with the federal standard because a party who complies with the state standard is also necessarily in compliance with the federal standard. Even if federal and state law require the use of two different kinds of emissions control, it may be physically possible to comply by using both. Impossibility of compliance is therefore rarely implicated in environmental ceiling preemption cases.
43. E.g., Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (inquiring whether state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress").
44. Consider, for example, the state taxation of a national bank at issue in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). See infra notes 62-64 and accompanying text (discussing the implications of the Court's reasoning for analysis of preemption issues). Unless federal law prohibits the payment of such a tax, it is possible for the bank to comply with state law by paying the tax. Nonetheless, there is a sufficiently clear and direct impairment of the bank to "trump" the imposition of the tax.
45. If pushed hard enough, field and conflict preemption tend to merge because the doctrine reflects overlapping considerations of purpose. Field preemption considers whether congressional goals reveal an intent to occupy the field, and conflict preemption may arise if state regulation is an obstacle to the accomplishment of the federal purpose. If, for example, there is a congressional purpose to carefully balance environmental gains and regulatory burdens and more restrictive state regulation would upset that balance, it could be argued that the goal of balancing supports both field preemption, because it reveals a purpose to preclude state authority, and conflict preemption, because state regulation would upset the federal balance and thus be an obstacle to the accomplishment of the federal purpose. In using this example, we do not mean to suggest that either argument would or should be successful in any particular case. See infra Part II.C.
46. See generally CHRISTOPHER R. DRAHOZAL, THE SUPREMACY CLAUSE: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 111-15 (2004) (discussing the presumption); K.K. DuVivier, State Ballot Initiatives in the Federal Preemption Equation: A Medical Marijuana Case Study, 40 WAKE FOREST L. REV. 221, 266 n.261 (2006) (noting "the Court's inconsistent application of the presumption against preemption"). For statistical analysis of trends in Supreme Court preemption decisions, see David M. O'Brien, The Supreme Court and Intergovernmental Relations: What Happened to "Our Federalism"?, 9 J.L. & POL. 609 (1993).
47. See, e.g., Alden v. Maine, 527 U.S. 706, 748 (1999) ("Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation.").
48. See, e.g., ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 29 (1997); Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027 (2002).
49. See generally Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 HARV. L. REV. 1212 (1978).
50. In this regard, the distinction between trumping state law and displacing state authority is important. Congress cannot anticipate every possible state law that might conflict with a federal statute. If there is a specific conflict between federal and state law, the Supremacy Clause mandates that federal law controls, whether or not Congress specifically considered and expressly preempted such laws. Displacement of state authority, however, is a more fundamental and far-reaching decision that should be carefully considered and approved by Congress.
51. See Daniel J. Meltzer, The Supreme Court's Judicial Passivity, 2002 SUP. CT. REV. 343, 364-68 (highlighting recent implied preemption cases that are inconsistent with the rise of textualism in statutory interpretation); Paul S. Weiland, Comment, Federal and State Preemption of Environmental Law: A Critical Analysis, 24 HARV. ENVTL. L. REV. 237, 284-85 (2000) (discussing a "limited preemption" model under which implied preemption would not be recognized).
52. See Gregory v. Ashcroft, 501 U.S. 452, 464 (1991). There is, of course, considerable debate over the extent to which the political safeguards of federalism are effective in protecting state interests. See, e.g., Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000). Nonetheless, the representative structure of Congress is the constitutionally designed mechanism for protecting the interests of states in the political process.
53. The analogy is apt because both implied preemption and implied rights of action rely on legislative purposes to expand the scope and effect of a statute beyond its explicit text, thus achieving through judicial interpretation a result for which Congress could have provided expressly but did not.
54. See, e.g., J.I. Case Co. v. Borak, 377 U.S. 426 (1964).
55. Cort v. Ash, 422 U.S. 66, 78 (1975) ("First, . . . does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?" (citations omitted)). For cases finding no implied right of action based on application of the Cort test, see, for example, Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 10-18 (1981), and California v. Sierra Club, 451 U.S. 287, 293 (1981).
56. One difference between implied rights of action and preemption is that the decision to create a private right of action is one that can be made at the time a statute is adopted, while Congress cannot be expected to anticipate every possible conflicting state law that might be adopted. That is why it is important to distinguish the displacement of state authority from the operation of the Supremacy Clause to trump state laws where there is a clear and direct conflict. Federal law trumps conflicting state law whether or not Congress anticipates the conflict and provides for it explicitly in a statute. This kind of conflict, in which federal law trumps state law, is broader than the impossibility of compliance strand of conflict preemption. See supra note 44 and accompanying text. The displacement of broad swaths of state authority, however, arguably should occur only when explicitly approved by the legislative process.
57. See, e.g., LEVY, supra note 1, at 85.
58. This statement is not intended as an endorsement of strict cost-benefit analysis, which has come under considerable criticism, as the exclusive test for sound regulatory programs, but rather as reflecting the intuitive balancing typically engaged in by policymakers. For a critical examination of cost-benefit analysis, see ACKERMAN & HEINZERLING, supra note 8.
59. States, of course, also have smaller local governmental units, such as counties and cities.
60. See LEVY, supra note 1, at 88-89. This is the main justification for the so-called "subsidiarity" principles of European Union Law and any United States counterpart that might be thought to exist. See generally Jared Bayer, Re-Balancing State and Federal Power: Toward a Political Principle of Subsidiarity in the United States, 53 AM. U. L. REV. 1421 (2004); George A. Hermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 COLUM. L. REV. 331 (1994); James L. Huffman, Making Environmental Regulation More Adaptive Through Decentralization: The Case for Subsidiarity, 52 U. KAN. L. REV. 1377 (2004). Of course, there are reasons to be skeptical about the ways in which political campaigns and lobbying may distort the political process, but these forces operate at all levels of government, including the federal level.
61. See generally Levy, supra note 1, at 1268-70 (discussing the implications of collective action theory for the scope of federal power); see also Kirsten H. Engel & Scott R. Saleska, Subglobal Regulation of the Global Commons: The Case of Climate Change, 32 ECOLOGY L.Q. 183, 191-94 (2005) (discussing the economics-derived "matching principle" for identifying the appropriate level of government to respond to a particular environmental problem).
62. 17 U.S. (4 Wheat.) 316, 435-36 (1819).
63. See generally LEVY, supra note 1, at 20-26 (discussing McCulloch and its interpretation of the Necessary and Proper Clause).
64. McCulloch, 17 U.S. at 435-36 ("The people of all the States have created the general government, and have conferred upon it the general power of taxation. The people of all the States, and the States themselves, are represented in Congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the States, they tax their constituents; and these taxes must be uniform. But, when a State taxes the operations of the government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the measures of a government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole-between the laws of a government declared to be supreme, and those of a government which, when in opposition to those laws, is not supreme.").
65. See, e.g., JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980) (arguing that judicial intervention is appropriate to correct political process failures and to protect and reinforce democratic processes).
66. The situation is a form of the "prisoner's dilemma" scenario as discussed in game theory: Each state has the incentive to tax the federal entity, whether or not other states do the same, even though a better result for the states as a collective would be to refrain from taxing the bank. See generally DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW 33 (1994). In the prisoner's dilemma scenario, game theorists posit two prisoners, each of whom must decide whether to confess and implicate the other in a joint crime, or to remain silent, with the length of their expected sentences dependent on their own choice and that of the other. The expected sentences are such that each individual prisoner has the incentive to cut a deal by confessing and implicating the other, but the best result from the perspective of the two, taken together, is to remain silent.
67. This includes pollution, insofar as pollution-causing activities involve overutilization of a commons-clean air and water. See, e.g., RICHARD N.L. ANDREWS, MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY 2-3 (1999) (arguing that "government involvement in environmental issues is both necessary and inevitable," inter alia, to protect environmental assets from "tragedies of the commons" and to assign and enforce property rights to eliminate commons resources and create use rights and protection duties); GLICKSMAN ET AL., supra note 14, at 8-9 ("The commons dilemma is often argued to provide the basis for severe government restrictions on the use of natural sinks for waste disposal or ecosystems for commodity production."). For the classic description of the commons problem, see Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243, 1244 (1968).
68. Externalities are spillover costs imposed on persons other than those who produce them and therefore not taken into account by those who produce them. Governmental regulation is one way to force those who impose spillover costs to internalize them. See, e.g., SHAPIRO & TOMAIN, supra note 9, at 53-54.
69. See GLICKSMAN ET AL., supra note 14, at 85 ("Perhaps the most widely accepted rationale for federal over state environmental standard setting is pollution externalities that move interstate."); Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 YALE L.J. 1196, 1215 (1977) (discussing how interstate "spillover[s] . . . generate conflicts and welfare losses not easily remedied under a decentralized regime"). See generally Thomas W. Merrill, Golden Rules for Transboundary Pollution, 46 DUKE L.J. 931 (1997); Richard L. Revesz, Federalism and Interstate Environmental Externalities, 144 U. PA. L. REV. 2341 (1996).
70. While downstream or downwind states have a corresponding incentive to overregulate pollution causing activities in upstream or upwind states, they lack the legal authority to do so. See infra notes 117-18 and accompanying text.
71. See, e.g., Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903 (1965); H.R. REP. NO. 90-728, at 9 (1967), reprinted in 1967 U.S.C.C.A.N. 1938, 1944 ("The Clean Air Act of 1963 marked the beginning of a new and much more hopeful era in air pollution control. . . . [that fjor the first time [provided] authority . . . for Federal regulatory action to abate interstate air pollution problems."); Robert V. Percival, Environmental Federalism: Historical Roots and Contemporary Models, 54 MD. L. REV. 1141, 1157 (1995) (describing 1963 federal legislation, an early version of the Clean Air Act, that was directed at interstate air pollution).
72. See, e.g., H.R. REP. NO. 90-728, at 12 (1967), reprinted in 1967 U.S.C.C.A.N. 1938, 1947 (explaining that if "a State fails to take appropriate action, the Department [of Health, Education, and Welfare] is empowered under the bill to take the necessary action to protect health and welfare expected of the State, particularly where interstate pollution is involved").
73. H.R. REP. NO. 89-2170, at 4 (1966), reprinted in 1966 U.S.C.C.A.N. 3473, 3476.
74. H.R. REP. NO. 95-294, at 151 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1230; see also id. at 329-30, reprinted in 1977 U.S.C.C.A.N. at 1408-09 (citing the inadequacy of existing mechanisms for dealing with interstate air pollution problems to justify enhancement of federal regulatory authority); Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 195 (2001) (Stevens, J., dissenting) (objecting to the majority's narrow reading of the Clean Water Act's dredge and fill permit program because "[t]he destruction of aquatic migratory bird habitat, like so many other environmental problems, is an action in which the benefits (e.g., a new landfill) are disproportionately local, while many of the costs (e.g., fewer migratory birds) are widely dispersed and often borne by citizens living in other States," and "[i]n such situations, described by economists as involving 'externalities,' federal regulation is both appropriate and necessary"); cf. Water Pollution Control Act Amendments of 1956, H.R. REP. NO. 84-1446, at 2 (1955), reprinted in 1955 U.S.C.C.A.N. 3023, 3024 ("Regulatory authority at the Federal level should be limited to interstate pollution problems and used on a standby basis only for serious situations which are not resolved through State and interstate collaboration.").
75. In the international relations field, this rationale has often translated into a particularly strong tendency to find preemption, and perhaps a presumption in favor of preemption. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003) (holding that California law designed to force foreign insurers to disclose records concerning insurance for Holocaust victims was impliedly preempted by presidential executive agreements); Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000) (holding that Massachusetts law prohibiting state agencies from doing business with companies doing business with Burma (Myanmar) was preempted by federal law imposing sanctions on Burma).
76. See supra note 1.
77. According to one account: Where effective regulation will require substantial investigation of technological capabilities, or links between pollutants and health impacts, or comprehensive assessment of diverse jurisdictions' pollution control efforts, economies of scale will favor a federal role. Otherwise, no individual state will have incentives to gather these sorts of valuable information, and all states will be tempted to free ride on any state that makes such an investment. Federal leadership also reduces the risk of duplicative regulatory investigation. For this reason, federal gathering and creation of information about pollution impacts and pollution control has long been part of federal environmental laws. GLICKSMAN ET AL., supra note 14, at 86; cf. Rena Steinzor & Margaret Clune, Paper Tigers and Killer Air: How Weak Enforcement Leaves Communities Vulnerable to Smog 9-11 (Ctr. for Progressive Reform, Nov. 2006), available at http://www.progressivereform.org/articles/ Air_Quality_Report.pdf (documenting that chronically underfunded states were not performing required inspections under the Clean Air Act).
78. A similar phenomenon may apply with respect to lobbying activities, as to which resource pooling may permit interest groups to more effectively develop and transmit information through the lobbying process at the federal level. See generally JEFFREY M. BERRY, THE INTEREST GROUP SOCIETY 4-8 (1984) (discussing the roles of interest groups and lobbying). There are, of course, other factors at work, such as the relative ease or difficulty of lobbying multiple state and or local policymakers, as opposed to a single set of policymakers at the national level, which may be geographically remote. See, e.g., Glicksman & Chapman, supra note 7, at 21 ("[T]he proponents of regulation, such as public interest groups, may not have the resources to lobby successfully in fifty jurisdictions rather than one."). These differences may mean that regulation at the state or federal level works to the benefit or detriment of lobbying by environmental or industry groups, depending on the circumstances.
79. See, e.g., H.R. REP. NO. 89-2170, at 4 (1966), reprinted in 1966 U.S.C.C.A.N. 3473, 3476 (stating that among the other air pollution problems that are "inherently beyond the reach of State and local agencies" were "the various research and development problems that still remain to be solved" and that "[t]he Federal Government must be prepared to meet these increasing needs for assistance to State and local governments and action at the Federal level"); Federal Water Pollution Control Act Amendments of 1961, H.R. REP. NO. 87-306, at 5 (1961), reprinted in 1961 U.S.C.C.A.N. 2076, 2079 ("Research has always been recognized as a basic Federal water pollution control responsibility. The need for a much greater Federal research effort was consistently recognized during the hearings on the bill.").
80. See, e.g., An Act to Improve, Strengthen, and Accelerate Programs for the Prevention and Abatement of Air Pollution, Pub. L. No. 88-206, 77 Stat. 392 (1963); An Act to Provide Research and Technical Assistance Relating to Air Pollution Control, Pub. L. No. 84-159, 69 Stat. 322 (1955).
81. Further, superior federal expertise because of superior resources proves too much as an argument for federal as opposed to state regulation because it would apply to virtually every area of government activity. Cf. United States v. Lopez, 514 U.S. 549, 564 (1995) (rejecting argument that adverse effect on national productivity resulting from guns in schools provided a basis for federal regulation under the commerce power because that argument proved too much).
82. As will be discussed further below, see infra notes 187-231 and accompanying text, the international dimensions of global climate change have been an important argument in favor of ceiling preemption with respect to GHG emissions, but this aspect of resource pooling was not a significant factor in the adoption of major federal environmental laws.
83. To take a dramatic illustration, a state like Kansas might lack resources to investigate or prosecute effectively a large multinational corporation like Exxon or DuPont, just as it would be relatively weak if acting alone when dealing with other countries diplomatically or confronting them militarily. The United States has the pooled resources of all the states and is in a much stronger position. See generally William W. Buzbee, Brownfields, Environmental Federalism, and Institutional Determinism, 21 WM. & MARY ENVTL. L. & POL'Y REV. 1, 50-51 & n. 196 (1997) (discussing inadequacy of state resources to address hazardous substance contamination); Sam A. LeBlanc, III, Federal Preemption Under CERCLA, 1 TUL. ENVTL. L.J. 50, 54 (1988) (explaining the adoption of the Superfund law in part as the result of the recognition by "some of Congress's leading conservatives as well as state officials . . . that the states were unwilling or, because of lack of resources, unable to solve the problem of polluted sites in a comprehensive, uniform and satisfactory way").
84. See, e.g., Marla Cone, When Superfund Expenses Go Mega, L.A. TIMES, Jan. 26, 2007, at A1 (quoting Superfund expert who stated that "[s]tate programs can deal with garden-variety sites, but mega sites are ones that nobody but the federal government can deal with").
85. The race-to-the-bottom argument came to prominence as a critique of the influence of Delaware's law of corporations, e.g., William L. Cary, Federalism and Corporate Law: Reflections upon Delaware, 83 YALE L.J. 663 (1974), but it appeared earlier in Supreme Court decisions upholding portions of the Social Security Act, e.g., Helvering v. Davis, 301 U.S. 619, 644 (1937) (reasoning that federal old age insurance was justified because "states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors"); Steward Mach. Co. v. Davis, 301 U.S. 548, 588 (1937) (reasoning that federal unemployment compensation was necessary because "[m]any [states] held back through alarm lest in laying such a toll upon their industries, they would place themselves in a position of economic disadvantage as compared with neighbors or competitors").
86. If other states do not lower standards, an individual state is in a superior position to attract industry, while if other states do lower standards, then the state must lower its own standards in order to compete effectively.
87. See, e.g., Jonathan Adler, Jurisdictional Mismatch in Environmental Federalism, 14 N.Y.U. ENVTL. L.J. 130, 139 (2005) ("[C]laims that federal regulation is necessary to prevent a 'race to the bottom' are questionable on both theoretical and empirical grounds."); 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); Richard L. Revesz, The Race to the Bottom and Federal Environmental Regulation: A Response to Critics, 82 MINN. L. REV. 535 (1997).
88. See, e.g., Kirsten Engel, State Environmental Standard-Setting: Is There a "Race" and Is It "to the Bottom"?, 48 HASTINGS L.J. 271 (1997); Daniel C. Esty, Revitalizing Environmental Federalism, 95 MICH. L. REV. 570 (1996); 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. (SYMPOSIUM ISSUE) 67 (1996).
89. See, e.g., H.R. REP. NO. 74-615, at 8 (1935); S. REP. NO. 74-628, at 11 (1935); Steward Mach. Co., 301 U.S. at 588 (relating to the adoption of federal unemployment compensation legislation).
90. H.R. REP. NO. 95-294, at 152 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1231. The report continued: "This would result in the squandering of finite air resources, thereby limiting the potential for long-term economic growth. This clearly is contrary to the national interest." Id.
91. 452 U.S. 264 (1981).
92. 30 U.S.C. §§ 1201-1328 (2000).
93. Hodel, 452 U.S. at 281-82 (quoting 30 U.S.C. § 1201(g)). The Court added that "[t]he prevention of this sort of destructive interstate competition is a traditional role for congressional action under the Commerce Clause," and found that the application of that rationale to the environmentally destructive effects of surface coal mining was a sufficient basis for invoking Congress's authority to create a federal regulatory program under the authority vested in it by the Commerce Clause. Id. at 282; accord Gibbs v. Babbitt, 214 F.3d 483, 501 (4th Cir. 2000) (upholding the application of the Endangered Species Act (ESA) to a species located in one state); see also Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1069 n.7 (D.C. Cir. 2003).
94. See Cooley v. Bd. of Wardens, 53 U.S. 299, 319 (1853) ("Whatever subjects of [the commerce] power are in their nature national, or admit only of one uniform system, or plan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress.").
95. Kirsten Engel has noted that "[u]niform standards are of great benefit to industry, especially industries producing polluting products. Not only do they eliminate competition, but they free industries whose products have a national market from having to comply with fifty different standards as opposed to a single national standard." Engel, supra note 88, at 369; cf. H. Geoffrey Moulton, Jr., Federalism and Choice of Law in the Regulation of Legal Ethics, 82 MINN. L. REV. 73, 142 (1997) (addressing, in a different regulatory context, "the broad and general claim that the predictability and reduced transaction costs afforded by uniform, nationally-imposed legal standards generally outweigh the benefits of federalism's diversity"). In this sense, "uniformity" as a purpose for federal environmental regulation is more concerned with reducing regulatory burdens than improving the effectiveness of environmental regulation. See infra notes 288-99 and accompanying text (discussing uniformity and reduction of regulatory burdens as a basis for ceiling preemption in the global climate change context).
96. The most notable example in the United States may well be the Uniform Commercial Code.
97. S. REP. NO. 89-192, at 6 (1965).
98. H.R. REP. NO. 90-728, at 8 (1967), reprinted in 1967 U.S.C.C.A.N. 1938, 1956.
99. Id. at 22. In effect, the state imposing the highest standards can, to some degree, externalize the economic burdens of its environmental regulations onto other states, in much the same way that a tax on a federal entity externalizes its costs. See infra notes 115-18 and accompanying text (discussing the ability of states to externalize the economic burdens of regulation).
100. See, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 452 (2005) (explaining that Congress decided to preempt state packaging and labeling requirements for pesticides that differ from those adopted by the EPA under FIFRA because "competing state labeling requirements . . . would create significant inefficiencies for manufacturers"); S. REP. NO. 101-449, at 2 (1990), reprinted in 1990 U.S.C.C.A.N. 4595, 4596 (stating that Congress sought "to preclude a multiplicity of State and local regulations and the potential for varying as well as conflicting regulations"). In Gibbs v. Babbitt, 214 F.3d 483, 502 (4th Cir. 2000), the court explained that "[a] desire for uniform standards also spurred enactment of the ESA." The court quoted from the legislative history of the ESA: "[Protection of endangered species is not a matter that can be handled in the absence of coherent national and international policies: the results of a series of unconnected and disorganized policies and programs by various states might well be confusion compounded." Id. (quoting H.R. REP. NO. 93-415, at 5 (1973)). The court refused to strike down the particular application of the ESA involved in that case because of its fear that leaving environmental regulation in general to the states "might well subject interstate companies to a welter of conflicting obligations. If Congress is constitutionally forbidden from even enacting uniform environmental rules, the confusion for interstate commercial enterprises might increase exponentially." Id.
101. 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, 1052 (1994); see also Barry G. Rabe et al., NIMBY and Maybe: Conflict and Cooperation in Siting of Low-Level Radioactive Waste Disposal Facilities in the United States and Canada, 24 ENVTL. L. 67, 69 (1994) ("Facility siting and management has been transformed from a fairly consensual area of environmental policy in the 1960s and 1970s to a conflict ridden area in more recent years. Time and time again, when either Canadian or American communities are confronted with the possibility of 'hosting' a new waste disposal or storage facility, the political reaction is immediate and intense. This reaction has blocked construction of any new facilities in either nation.").
102. See New York v. United States, 505 U.S. 144, 149-51 (1992) (discussing the operation of low-level radioactive waste facilities and legislation pertaining to them); Robert L. Glicksman, Interstate Compacts for Low-Level Radioactive Waste Disposal: A Mechanism for Excluding Out-of-State Waste, in LOW-LEVEL RADIOACTIVE WASTE REGULATION: SCIENCE, POLITICS AND FEAR 63 (Michael E. Burns ed., 1988). For analysis of New York v. United States, see generally Richard E. Levy, New York v. United States: An Essay on the Uses and Misuses of Precedent, History, and Policy in Determining the Scope of Federal Power, 41 U. KAN. L. REV. 493 (1993).
103. 42 U.S.C. §§ 2021b-2021d (2000). The 1980 Act was amended in 1986. Low Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. No. 99-240,99 Stat. 1842 (1986).
104. The LLRWPA declared that "[e]ach State is responsible for providing, either by itself or in cooperation with other states, for the disposal of low-level radioactive waste generated within the State." 42 U.S.C. § 2021d(a)(1)(A); see also Low-Level Radioactive Waste Policy Amendments Act of 1985, H.R. REP. NO. 99-314, pt. 2, at 14 (1985), reprinted in 1985 U.S.C.C.A.N. 3002, 3002 (stating that Congress adopted the LLRWPA in 1980 "in order to lift the national burden of disposal from the three states with the only remaining commercial facilities").
105. 505 U.S. 144.
106. E.g., Entergy Arkansas, Inc. v. Nebraska, 358 F.3d 528 (8th Cir. 2004) (holding that a state that was selected as the host state for a multistate compact's disposal site was in breach of its good faith obligation under the compact by exhibiting a lack of diligence or cooperative effort in processing a license for the facility, willfully rendering imperfect performance, and denying the application without regard to its technical merits).
107. See Rabe et al., supra note 101, at 69; see also Report on the Activity of the Committee on Energy and Commerce for the 101st Congress, H.R. REP. NO. 101-1021, at 233 (1991) (stating that "[disposal capacity is diminishing even as the amount of waste produced continues to grow," that "[l]andfills are closing for environmental and regulatory reasons or because they have been filled to capacity," and that "[c]ommunity opposition has made the siting of new landfills a difficult process, exacerbating the capacity shortage").
108. E.g., 42 U.S.C. § 6924(a) (provision of the Resource Conservation and Recovery Act requiring the EPA to set minimum standards for the design, construction, and operation of facilities for the treatment, storage, and disposal of hazardous waste); Tennessee v. U.S. Dep't of Transp., 326 F.3d 729, 730-31 (6th Cir. 2003) (describing the Hazardous Materials Transportation Act, 49 U.S.C. §§ 5101-5127 (2000), as "an effort to create a coherent approach to addressing the problems posed by the interstate transportation of hazardous material").
109. See, e.g., Nevada v. Dep't of Energy, 457 F.3d 78 (D.C. Cir. 2006); Nevada v. Watkins, 914 F.2d 1545 (9th Cir. 1990). Some of these battles are ongoing. See, e.g., Sam Wood, DEP: Slag Pile Plan in Glouco Is Flawed; The Material A Metal Company Departing for Brazil Wants to Leave in Newfield Would Be a Billion- Year Hazard, the Agency Says, PHILA. INQUIRER, Jan. 18, 2007, at B01.
110. Of course, collective action problems remain at the international level. For example, the United States can and does externalize environmental harms to other countries. In that sense only global policymaking bodies - a larger collective of which the United States is part - would consider the full environmental cost of some environmentally damaging activities. This point would tend to reinforce the importance of international environmental law as a tool of environmental policy. For purposes of allocating regulatory responsibility at the state or federal level, however, the full environmental costs to be considered are those that affect the United States.
111. We are grateful to Steve Ware and Chris Drahozal, our colleagues at the University of Kansas, for making this point forcefully at a faculty colloquium.
112. David Driesen has argued that the feasibility principle often reflected in environmental regulation "requires stringent regulation, but presumptively subjects this demand for stringency to two constraints. First, the principle authorizes government agencies to forego physically impossible environmental improvements. Second, the principle authorizes government agencies to forego constraints so costly that they cause widespread plant shutdowns." David M. Driesen, Distributing the Costs of Environmental, Health, and Safety Protection: The Feasibility Principle, Cost-Benefit Analysis, and Regulatory Reform, 32 B.C. ENVTL. AFF. L. REV. 1, 9 (2005). Thus, even feasibility standards, such as the one at issue in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980), and in American Textile Manufacturers Institute, Inc. v. Donovan, 452 U.S. 490 (1981), draw the limit at the destruction of an industry.
113. We do not mean to suggest that Congress could not decide to impose ceiling preemption under a statute combating externalities, but rather that the case for doing so is weak from a collective action perspective. Thus, Congress should not take this step lightly, and courts ordinarily should not infer such preemption in the absence of express statutory provisions. See infra notes 140-41 and accompanying text (discussing basic principles derived from this framework).
114. Note that enforcement of laxer state standards in addition to stricter federal ones might actually increase the level of environmental protection by imposing larger total penalties or increasing the likelihood of sanctions for the most serious violations. On the other hand, if state enforcement action precluded subsequent federal enforcement action, the state would have incentives to pursue weak sanctions as a means of shielding local polluters from more aggressive federal sanctions. Cf. State Water Control Bd. v. Smithfield Foods, Inc., 542 S.E.2d 766 (Va. 2001) (holding that enforcement of state pollution laws was barred by principles of res judicata following a federal enforcement action based on the same pollution offense). Perhaps for this reason, the Supreme Court has held that state prosecutions for crimes that would violate federal laws do not bar subsequent federal prosecutions. See, e.g., United States v. Lanza, 260 U.S. 377, 385 (1922) (observing in the context of Prohibition that if state prosecutions were a bar to federal prosecution, "a State [could] punish the manufacture, transportation and sale of intoxicating liquor by small or nominal fines, [and] the race of offenders to the courts of that State to plead guilty and secure immunity from federal prosecution for such acts would not make for respect for the federal statute or for its deterrent effect").
115. The principal exception to this proposition is the regulation of pollution-causing goods that move in interstate commerce, insofar as regulation of products sold in one state may burden their production in another. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) (upholding a state law prohibiting the use of plastic containers for milk even though the law imposed economic burdens on out-of-state interests); Procter & Gamble Co. v. Chicago, 509 F.2d 69 (7th Cir. 1975) (upholding a municipal ban on laundry detergents with phosphates despite its negative impact on plaintiffs' national business). In such cases, however, there is some political process safeguard because producers in the state are also subject to the restriction, and the citizens of the state bear some of the economic costs in the form of higher prices or less desirable products. This kind of regulatory externality is closely aligned with the uniformity problem. See supra notes 97-100 and accompanying text (discussing this problem in relation to vehicle emissions). Its implications for preemption will be discussed in that context. See infra notes 132-33 and accompanying text.
116. Of course, economic activity within a state benefits other states as well, by producing goods and services that may be used in those other states. In that sense regulation of in-state activity externalizes some economic burdens by making those goods and services more expensive. Of course, this sort of regulation may also externalize environmental benefits to other states. If production of essential goods or services is sharply limited to achieve environmental benefits that are concentrated locally, this becomes a NIMBY problem. See supra notes 101-10 and accompanying text.
117. These incentives might manifest themselves in overregulation at the federal level if states can concentrate the economic burdens of environmental protection in a few states, thus externalizing a great deal of those costs while reaping the environmental benefits. This sort of concern is inherent in any federal system, and is one reason why legislation must meet bicameralism and presentment requirements. See LEVY, supra note 1, at 86 (discussing collective action implications of bicameralism and presentment).
118. See, e.g., Nat'l Solid Wastes Mgmt. Ass'n v. Meyer, 165 F.3d 1151 (7th Cir. 1999) (invalidating a Wisconsin statute prohibiting in-state disposal of solid waste from communities that had not enacted ordinances meeting Wisconsin's recycling specifications); Nat'l Solid Wastes Mgmt. Ass'n v. Charter County, 303 F. Supp. 2d 835 (E.D. Mich. 2004) (invalidating a local ordinance making it unlawful for a Michigan landfill to accept solid waste from a state or local government or other generator that was not regulated by a beverage container deposit law comparable to Michigan's).
119. As in the case of externalities, however, if compliance with state standards or the pursuit of state enforcement actions served as a defense to federal enforcement of federal standards, under the Supremacy Clause the federal standards and enforcement would prevail. See supra note 114.
120. For example, if (contrary to congressional expectations) the state in which a mega-Superfund site is located commits sufficient resources to remediate the site, preemption of the state's ability to control the remediation process cannot legitimately be premised on the federal government's general resource superiority. See supra notes 83-84 and accompanying text.
121. Cf. 42 U.S.C. § 9613(f)(2) (2000) (providing that "a person who has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution" under CERCLA). Many of the citizen-suit provisions in the federal pollution control statutes bar citizen suits commenced while EPA or a state is diligently prosecuting alleged violations. See, e.g., 33 U.S.C. § 1365(b)(1)(B) (2000) (provision in the Clean Water Act barring citizen suits while the EPA is prosecuting a civil or criminal action).
122. This is one argument that has been advanced against state regulation of greenhouse gases. See infra notes 187-211 and accompanying text.
123. Note, however, that to overcome the presumption against preemption, these concerns should be both clearly expressed and central to the purposes of the statute,
124. See infra notes 191-94 and accompanying text (discussing cases).
125. It might be argued that lack of information by states could lead to overregulation in response to unfounded public fears. See Elizabeth A. Weeks, Gauging the Cost of Loopholes: Health Care Pricing and Medicare Regulation in the Post-Enron Era, 40 WAKE FOREST L. REV. 1215 (2005) (discussing how information errors led to an excessive regulatory response in the context of Medicare). See generally Cass R. Sunstein, Hazardous Heuristics, 70 U. CHI. L. REV. 751 (2003) (discussing information errors and their implications for regulation). This sort of purpose might justify ceiling preemption, but to this point such concerns are not reflected in the federal environmental laws.
126. See supra note 114 and accompanying text.
127. See supra notes 89-93 and accompanying text (discussing the race-to-the-bottom rationale for the Surface Mining Control and Reclamation Act).
128. Although the literature at times refers to a race to the top to describe state and local governments' adoption of aggressive environmental measures, an increasingly common phenomenon, the focus has been on disputing the race-to-the-bottom hypothesis rather than on making an argument for federal ceiling preemption. See, e.g., WILLIAM A. FISCHEL, THE HOMEVOTER HYPOTHESIS: HOW HOME VALUES INFLUENCE LOCAL GOVERNMENT TAXATION, SCHOOL FINANCE, AND LAND-USE POLICIES 162-77 (2001) (arguing that suburbs are engaged in a race to the top in the protection of the environment); Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 HARV. L. REV. 553, 583-625 (2001) (citing examples of aggressive state environmental regulation to dispute the empirical accuracy of the race-to-the-bottom argument).
129. See infra notes 134-38 and accompanying text.
130. See, e.g., Geier v. Am. Honda Motor Co., 529 U.S. 861, 871 (2000) (citing legislative history indicating that a purpose of the National Traffic and Motor Vehicle Safety Act was to promote a uniform standard).
131. See supra note 97 and accompanying text.
132. One court described the process of adopting statutes that seek to accommodate potentially conflicting policy objectives as follows: It would be illegitimate for the judiciary, in pursuit of some overriding Congressional goal (such as eliminating water pollution), to tear asunder a specific provision which Congress saw fit to enact. It scarcely needs repeating that statutes are rarely, if ever, unidimensionally directed towards achieving or vindicating a single public policy. While a broad policy goal may well be the animating force driving the legislation, achievement of actual passage of the measure invariably requires compromise and accommodation. Natural Res. Def. Council, Inc. v. EPA, 822 F.2d 104, 113 (D.C. Cir. 1987) (citations omitted).
133. See infra notes 279-99 and accompanying text (discussing this issue in connection with global climate change).
134. Low Level Radioactive Waste Policy Amendments Act of 1985, Pub. L. No. 99-240, 99 Stat. 1842 (1986).
135. See supra notes 101-06 and accompanying text.
136. Although any form of aggressive state or local regulation that forces undesirable activities to locate elsewhere might be the result of NIMBY problems, such problems most frequently manifest themselves in overly strict regulations for siting environmentally hazardous facilities. See, e.g., Peter Margulies, Building Communities of Virtue: Political Theory and Land Use Policy, and the Not in My Backyard Syndrome, 43 SYRACUSE L. REV. 945 (1993) (discussing the role of fear of increased crime and decreased property values in the NIMBY phenomenon); A. Dan Tarlock, Benjamin Davy's Essential Injustice: A Comparative and Philosophical Analysis of the LULU Siting Mess, 22 HARV. ENVTL. L. REV. 607 (1998) (reviewing an Austrian law professor's book discussing the siting problem in the European context); see also Vicki Been, Analyzing Evidence of Environmental Justice, 11 J. LAND USE & ENVTL. L. 1 (1995) (empirical study of the extent to which locally undesirable land uses (LULUs) are disproportionately placed in communities that are predominantly populated by people of color and the poor).
137. Although the problem is most obvious and common in the context of siting regulations, the same effect could be accomplished through the adoption of especially restrictive environmental standards for facilities, such as extremely costly measures to prevent radiation leaks.
138. At the same time, however, statutes like the LLRWPA also typically incorporate some minimum federal standards. Absent a savings clause in the federal law, such standards are binding and compliance with lower state standards would not be a defense to a violation of federal law. The additional enforcement of state standards, even if they are not higher than the federal standards, would increase regulatory burdens and therefore might be incompatible with federal legislation that responds to a NIMBY problem. See supra note 114 (discussing the impact of lower state standards in the context of negative environmental externalities).
139. See, e.g., In re WTC Disaster Site, 414 F.3d 352, 375 (2d Cir. 2005) ("Fathoming the extent of the intended preemption, however, requires a focus beyond the precise language of [the statute], for the respective reaches of terms such as 'arising out of,' 'resulting from,' and 'relating to' are not self-evident."); Verizon Maryland, Inc. v. Global Naps, Inc., 377 F.3d 355, 371-72 (4th Cir. 2004) (finding that despite statutory provisions that "partially flooded the existing statutory terrain with specific preempting federal requirements, carefully leaving numerous islands of State responsibility," the "areas of responsibility are a patchwork, and the dividing lines are somewhat murky").
140. See supra notes 46-52 and accompanying text.
141. Nonetheless, in some cases ceiling preemption might be appropriate if federal law pursues those purposes using a means that would be frustrated by state regulation, such as a pollution trading regime, or supplements those purposes with other purposes that state law would thwart.
142. Although we focus in this Part primarily on climate change issues, we also discuss ceiling preemption under other environmental regulatory programs that provide useful comparisons with the resolution of the issues of ceiling preemption raised by climate change regulation.
143. 42U.S.C. §§7401-7671q (2000).
144. Id. § 7521(a)(1).
145. Id. § 7602(g).
146. Control of Emissions From New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,925 (Sept. 8,2003) (notice of denial of petition for rulemaking).
147. Id. at 52,929.
148. The CAFE standards reflect "the sales weighted average fuel economy, expressed in miles per gallon (mpg), of a manufacturer's fleet of passenger cars or light trucks with a gross vehicle weight rating (GVWR) of 8,500 lbs. or less, manufactured for sale in the United States, for any given model year." NHTSA, CAFE Overview - Frequently Asked Questions, http://www.nhtsa.dot.gov/cars/rules/cafe/overview.htm (last visited Nov. 23, 2007). Thus, fuel economy standards are designed to require auto companies to design the engines they produce to increase the number of miles a vehicle is capable of traveling for each gallon of gasoline used, thereby decreasing fuel consumption, conserving energy resources, and reducing the nation's dependence on petroleum.
149. Pub. L. No. 94-163, § 301, 89 Stat. 871 (1975) (codified as amended at 49 U.S.C. §§ 32,906-32,919(2000)).
150. Control of Emissions From New Highway Vehicles and Engines, 68 Fed. Reg. at 52,929. The EPA pointed out that DOT recently had issued more stringent fuel economy standards, which would reduce COa emissions by approximately 31 million tons. Id. at 52,931.
151. Id. at 52,931.
152. Id.
153. Id.
154. 2O from motor vehicles. Id.
155. 127 S. Ct. 1438 (2007).
156. Id at 1462. The CAA defines an "air pollutant" as "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 . . . ." 42 U.S.C. § 7602(g) (2000) (emphasis added).
157. 127 S. Ct. at 1463. More specifically, that aspect of the EPA's decision rested on "reasoning divorced from the statutory text," id. at 1462, and the EPA's "laundry list of reasons not to regulate" were not persuasive because "it is evident they have nothing to do with whether greenhouse gas emissions contribute to climate change." Id. at 1462-63.
158. Id. at 1462.
159. Kathryn A. Watts & Amy J. Wildermuth, Massachusetts v. EPA: Breaking New Ground on Issues Other than Global Warming, 102 NW. U. L. REV. 1029, 1029 (2008), 102 NW. U. L. REV. COLLOQUY 1, 1 (2007), http://www.law.northwestem.edu/lawreview/ Colloquy/2007/17/. But cf. id. at 1044 ("[I]t is unclear whether it will be permissible for the EPA on remand to conclude that emissions of greenhouse gases do contribute to global warming, but decline to regulate greenhouse gases on the ground that the agency's resources are constrained and that the agency cannot possibly do everything that Congress has empowered it to do.").
160. See, e.g., Jonathan H. Adler, Massachusetts v. EPA Heats Up Climate Policy No Less than Administrative Law: A Comment on Professors Watts and Wildermuth, 102 NW. U. L. REV. COLLOQUY 32 (2007), http://www.law.northwestern.edu/lawreview/colloquy/2007/20/; Arnold W. Reitze, Jr., Controlling Greenhouse Gas Emissions from Mobile Sources - Massachusetts v. EPA, 37 ENVTL. L. REP. 10,535, 10,538 (2007) ("[T]he Court's opinion pushes [the] EPA to find that GHGs need to be regulated.").
161. The Court phrased the determinative "statutory question" as "whether sufficient information exists to make an endangerment finding." Massachusetts, 127 S. Ct. at 1463. The court also found fault in the EPA's failure to offer a "reasoned explanation for its refusal to decide whether [GHGs] cause or contribute to climate change." Id.
162. The EPA's website states that "[g]reenhouse gases are necessary to life as we know it, because they keep the planet's surface warmer than it otherwise would be. But, as the concentrations of these gases continue to increase in the atmosphere, the Earth's temperature is climbing above past levels." It adds that, "[i]f greenhouse gases continue to increase, climate models predict that the average temperature at the Earth's surface could increase from 2.5 to 10.4°F above 1990 levels by the end of this century. Scientists are certain that human activities are changing the composition of the atmosphere, and that increasing the concentration of greenhouse gases will change the planet's climate. But they are not sure by how much it will change, at what rate it will change, or what the exact effects will be." Environmental Protection Agency, Climate Change, Basic Information, http://www.epa.gov/climatechange/ basicinfo.html#emissions (last visited Nov. 23, 2007). The EPA's website regards the degree of the changes in global climate due to GHG emissions to be uncertain, but notes the causal link between those emissions and climate change.
163. Massachusetts, 127 S. Ct. at 1463.
164. 42 U.S.C. § 7521 (a) (2000).
165. Id. § 7408(a)(1)(A)-(B). States must achieve these standards by developing implementation plans, which must include source-specific emissions limitations, that may apply to all sources of pollution, both stationary and mobile.
166. See id. § 7409; 40 C.F.R. §§ 50.1-50.12 (2006). The EPA must issue "primary" ambient air quality standards that, "allowing an adequate margin of safety, are requisite to protect the public health." 42 U.S.C. § 7409(a)(1), (b)(1). The EPA also must develop "secondary" ambient air quality standards that are "requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." Id. § 7409(a)(1), (b)(2). The statute defines the term "welfare" to include, but not be limited to, "effects on soils, water, crops, vegetation, manmade materials, animals, wildlife, weather, . . . and climate." Id. § 7602(h).
167. 42 U.S.C. §§ 7407(a), 7410, 7502(a).
168. Massachusetts, 127 S. Ct. at 1462-63; see supra notes 160-63 and accompanying text (discussing this aspect of the Court's decision).
169. The triggers for the EPA's authority to regulate air pollution from stationary sources differ somewhat from the triggers for regulation of mobile source pollution, however. Compare 42 U.S.C. § 7521(a)(1) (mandate to regulate mobile source pollution), with id. § 7408(a)(1) (factors for listing criteria pollutants), and id. § 7411(b)(1)(A) (authority to regulate new stationary sources).
170. Although the EPA has discretion to determine whether an air pollutant satisfies the tests for designation of an air pollutant as a criteria pollutant, it does not have the authority to fail to issue NAAQS for an air pollutant that does meet those criteria. See Natural Res. Def. Council, Inc. v. Train, 545 F.2d 320 (2d Cir. 1976).
171. See Glicksman, supra note 13, at 781-84.
172. CAL. HEALTH & SAFETY CODE § 43,018.5(a) (West 2006); see also Glicksman, supra note 13, at 782.
173. CAL. HEALTH & SAFETY CODE §§ 38,501-38, 599 (West 2007).
174. Id. §§ 38,560, 38,562, 38,570.
175. 2 emissions. See Glicksman, supra note 13, at 782.
176. See, e.g., Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151 (E.D. Cal. Dec. 11, 2007).
177. 42 U.S.C. §§ 7410(a)(2)(D), 7426 (2000).
178. See supra notes 73-74 and accompanying text.
179. "By its very nature, climate change is a common global concern of all countries, for climate re-spects no political boundaries." EDITH BROWN WEISS, INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 591 (Aspen Pubs., 2d ed. 2007). It is fairly clear that the United States as a whole is externalizing some of the costs of global climate change. See DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 663 (Found. Press, 3d ed. 2007) (suggesting that the United States, as the country with the greatest GHG output in the world, will contribute to the climate change problem worldwide). Scientific evidence seems to support the conclusion, for example, that portions of the developing world will experience the most dramatic adverse effects of climate change, even though GHG emissions there are relatively low. NICHOLAS STERN, STERN REVIEW ON THE ECONOMICS OF CLIMATE CHANGE vii (2006), available at http://www.hm-treasury.gov.uk/ media/4/3/Executive_ Summary.pdf (finding that although all countries will suffer the adverse effects of global climate change, the poorest countries will suffer earliest and most, despite the fact that they have contributed least to the problem).
180. 2 emissions because they believe they will benefit from doing so or that only other jurisdictions will be adversely affected.
181. With respect to mobile emissions sources, however, a state may be able to externalize regulatory burdens because the costs of stricter standards for GHG emissions (which inherently require greater fuel efficiency) may fall primarily on other states, such as those that produce vehicles, and may also fall on consumers in other states whose vehicles will be more costly. See supra notes 99-100 and accompanying text (discussing similar reasoning by Congress). We address these issues below in connection with the uniformity rationale for federal regulation. See infra Part II.B.4.a.
182. See infra Part II.C (discussing secondary purposes); Part II.D (discussing the implications of state regulation for cap-and-trade programs).
183. In addition, the federal government may not provide effective regulation of interstate externalities. See, e.g., GLICKSMAN ET AL., supra note 14, at 525-27 (describing the inadequacy of the EPA's implementation of interstate air pollution provisions under the 1970 Clean Air Act); Air Pollution: N.J. Files Suit Against EPA over Pa. Power Plant Emissions, GREENWIRE, Feb. 7, 2007, http://www.eenews/ net/Greenwire/print/2007/02/07/16 (describing New Jersey's allegation that the EPA had failed to stop a Pennsylvania coal-fired power plant near the New Jersey border from emitting more than ten times the allowable amount of pollution).
184. See, e.g., GLICKSMAN ET AL., supra note 14, at 86 (discussing economies of scale and research leadership provided by federal information gathering).
185. E.g., 7 U.S.C. §§6701, 6711 (2000); 15 U.S.C. §§2904-2961 (2000); 42 U.S.C. §§ 13,383, 13,385,13,389 (2000).
186. One possible argument would be that state policymakers, if less fully informed because the state lacks the resources to pay for the most highly qualified experts, may be more likely to process the information incorrectly. See supra note 125. Such reasoning, however, is not reflected in the purposes of the CAA and would provide a relatively weak justification for a congressional decision to preempt state law. Indeed, relatively uninformed policymakers may be just as prone to underregulate - due to lack of appreciation of the risks posed by climate change - as to overregulate. Cf. Manya A. Brachear, Religious Leaders Divided About Global Warming, CHI. TRIB., June 15, 2007, at C-11 (reporting Oklahoma Senator James Inhofe's comment that global warming is "the greatest hoax ever perpetrated on the American people").
187. See supra notes 121-24 and accompanying text (discussing the potential for independent state action to weaken the federal government's bargaining with foreign countries about environmental regulation and enforcement).
188. See supra note 152 and accompanying text.
189. Cent. Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp. 2d 1160, 1177 (E.D. Cal. 2006) (quoting paragraph 130 of the plaintiffs' first amended complaint), on reconsideration sub nom. Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151, 1190 (E.D. Cal. 2007) (granting summary judgment to the state); accord Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 392 (D. Vt. 2007) (quoting a similar argument in plaintiffs' complaint at paragraph 121).
190. See infra notes 207-19 and accompanying text (discussing Goldstene and Crombie).
191. 530 U.S. 363 (2000).
192. Id. at 373-74.
193. 539 U.S. 396 (2003).
194. Id. at 420-25.
195. See Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151, 1188 (E.D. Cal. 2007) (finding that California's GHG emissions controls "are aimed internally at the state's traditional role in the regulation of what may be sold in the state and at corporations, not nations, that manufacture items for the state's market" and that the effect of the California regulations "is not on foreign countries or their activities or directly on United States' policy with regard to any particular country").
196. There is nothing in the text or legislative history of the CAA that reflects a primary purpose to protect the President's ability to negotiate international treaties. To the contrary, the entire thrust of the CAA is inconsistent with the notion that voluntary regulation of air pollution by states or by the federal government would somehow undermine our ability to negotiate international environmental agreements effectively. One provision of the CAA addresses the international effects of air pollution but, as will be discussed below, this provision is narrow and does not support broad preemption of state regulation. See infra notes 226-28 and accompanying text.
197. Title XI - Global Climate Protection, Pub. L. No. 100-204, §§1101-1106, 101 Stat. 1407 (1987), amended by Pub. L. No. 103-199, § 603(1), 107 Stat. 2327 (1993) (codified at 15 U.S.C. § 2901 (2000)).
198. Id. § 1103(c).
199. The reluctance of courts to allow international political considerations to affect the scope or content of domestic regulatory programs in the absence of explicit congressional instruction is also reflected in Earth Island Institute v. Hogarth, 494 F.3d 757 (9th Cir. 2007), in which the court invalidated a finding by the Secretary of Commerce that the use of purse-seine nets to catch tuna was not having a significant adverse impact on depleted dolphin stocks in the Pacific Ocean. It concluded that the Secretary improperly relied on international political concerns that were "within Congress's bailiwick," instead of basing the finding exclusively on scientific factors, as Congress intended. Id. at 768 (quoting Browner v. Evans, 257 F.3d 1058,1065-66 (9th Cir. 2001)).
200. 127 S. Ct. 1438,1463 (2007). The Court reasoned that: [W]hile the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws. In the Global Climate Protection Act of 1987, Congress authorized the State Department - not EPA - to formulate United States foreign policy with reference to environmental matters relating to climate. See § 1103(c), 101 Stat. 1409. EPA has made no showing that it issued the ruling in question here after consultation with the State Department. Congress did direct EPA to consult with other agencies in the formulation of its policies and rules, but the State Department is absent from that list. Id.
201. 539 U.S. 396,415-17 (2003).
202. Indeed, as observed by the Court in Massachusetts v. EPA, the EPA is not even the proper body to assert foreign policy concerns. 127 S. Ct. at 1463 (quoted supra note 200); cf. Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (invalidating a Federal Civil Service Commission regulation barring aliens from the civil service because the agency justification of promoting reciprocal benefits for United States citizens in other countries was not within the responsibilities of the Commission).
203. See Zschernig v. Miller, 389 U.S. 429, 440 (1968) (invalidating an Oregon law imposing conditions on the right of foreign nationals to succeed to property as an interference with the exclusive federal foreign relations authority because the law was an effort to punish Communist regimes).
204. BROWN WEISS, supra note 179, at 649; HUNTER ET AL., supra note 179, at 663.
205. 2 emissions. Margaret Kriz, Bench Press for Cleaner Fuels, NAT'L J., Feb. 24, 2007, at 38, 40.
206. The increase in media attention to global climate change issues in the United States; the shift in U.S. public opinion toward stronger support for federal regulation of GHG emissions, see Robert L. Glicksman, Global Climate Change and the Risks to Coastal Areas From Hurricanes and Rising Sea Levels: The Costs of Doing Nothing, 52 LOYOLA L. REV. 1127,1184-97 (2006); the flurry of legislation introduced in Congress with bipartisan support to abate climate change, see, e.g., Global Warming Reduction Act of 2007, S. 485, 110th Cong. (2007); the impending change in presidential administrations in 2009; and the support for federal regulation provided by many important businesses in the United States, see Margaret Kriz, Flash: Industry Now Seeks GHG Limits, ENVTL. F., Mar./Apr. 2007, at 8, 8, are all likely to send stronger signals to foreign negotiators about the ability of the President to strike a deal on his own terms than would the decisions by the states to initiate mandatory controls on GHGs even in the absence of federal controls.
207. Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007).
208. Id. at 392 (quoting plaintiffs complaint at paragraph 121) (internal quotation marks omitted).
209. Id. at 394.
210. Id. at 394-95. These include the United Nations Framework Convention on Climate Change (UNFCCC), May 9, 1992, 31 I.L.M. 849. See Crombie, 508 F. Supp. 2d at 392-95 (discussing the UNFCCC). The court cited a State Department release to the United Nations that stated that "California's GHG regulation, far from charting a divergent, potentially disruptive or embarrassing course, fits squarely within the nation's emission reduction policies." Id. at 395. Likewise, the court concluded that Vermont's program exemplified "a cooperative federal state approach to the global issues of climate change," rather than "representing an intrusion into the 'field' of foreign affairs entrusted exclusively to the national government." Id. The court also held that Garamendi did not support preemption because it found no "clear conflict between the state law and an express national foreign policy." Id. at 392, 395-96.
211. Crombie, 508 F. Supp. 2d at 396-97 (citing Massachusetts v. EPA, 127 S. Ct. 1438, 1463 (2007)).
212. Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151 (E.D. Cal. 2007). The court initially concluded that the argument had sufficient merit to withstand a motion for judgment on the pleadings, anchoring its analysis in the proposition, recognized by the Supreme Court, that "it was out of 'concern for uniformity in this country's dealings with foreign nations' that the Constitution allocated the foreign relations power to the federal government." Cent. Valley Chrysler-Jeep v. Witherspoon, 456 F. Supp. 2d 1160, 1175 (E.D. Cal. 2006). The court reversed itself on reconsideration, however, in light of Massachusetts v. EPA and Crombie. Goldstene, 529 F. Supp. 2d at 1154-55, 1190.
213. Goldstene, 529 F. Supp. 2d at 1182 (citing 42 U.S.C. § 7543(b) (2000)). In addition, Congress intended to allow any other state to adopt California's standards once the EPA has granted a waiver to California under § 203(b). Id. The EPA denied California's petition for a waiver of the CAA's preemption of state restrictions on GHG emissions from motor vehicles in late 2007. See infra note 246.
214. Goldstene, 529 F. Supp. 2d at 1182. The court added, relying on Massachusetts v. EPA, that when a court seeks to identify U.S. foreign policy concerning regulation of GHG emissions, "it must look to sources other than EPA because EPA's pronouncements of what is United States foreign policy, and what constitutes interference with that policy, are not authoritative." Id. at 1181. As the Supreme Court concluded in Massachusetts v. EPA, Congress authorized the State Department, not the EPA, to formulate U.S. foreign policy with respect to climate change. Id. at 1185 (citing the Global Climate Protection Act of 1987).
215. Id. at 1188.
216. Id. at 1186.
217. Id.
218. Id. at 1187 (also finding "that Plaintiffs contention that it is also United States foreign policy to hold in abeyance internal efforts to reduce [GHG] emissions in order to leverage foreign cooperation is completely without factual support"). The court analogized the plaintiffs' argument to the irrational argument that "it would be a rational negotiating strategy to refuse to stop pouring poison into the well from which all must drink unless your bargaining partner agrees to do likewise." Id.
219. Id. at 1187-88.
220. See Erin Ryan, Federalism and the Tug of War Within: Seeking Checks and Balance in the Interjurisdictional Gray Area, 66 MD. L. REV. 503, 581 (2007) (discussing federal regulation of activities that generate air pollution as a way to prevent a race to the bottom); Christopher A. Brook, Comment, Cuba: Undermining or Underlining the "Race to the Bottom?," 30 N.C. J. INT'L & COMP. REG. 197, 199-200 (2004) (discussing the role of the race-to-the-bottom theory in spurring the adoption of federal environmental legislation, and characterizing the argument as an "animating" force in enactment of the CAA); supra note 90 and accompanying text.
221. See supra notes 126-29 and accompanying text.
222. The Secretary of Energy, Samuel Bodman, for example, has expressed a concern that "the imposition of a carbon cap in this country would . . . lead to the transfer of jobs and industries abroad that do not have such carbon caps . . . . [a]nd that you'd have the U.S. economy damaged on the one end and the same emissions, potentially worse emissions, because they don't have the same type of standards." Darren Samuelson, Climate: Bush Officials Insist No Change Is Coming on GHG Caps, GREENWIRE, Feb. 2, 2007, http://www.eenews.net/Greenwire/2007/02/02/2 (quoting Samuel Bodman). The Secretary also warned that "[t]he U.S. economy is not something to be experimented with in my judgment." Id. (quoting Samuel Bodman).
223. The Secretary of Energy acknowledged that some states, such as California, have reached a different judgment as to the proper balance between economic competitiveness and environmental protection than the Administration has. He responded that "[i]f I am right" about the adverse economic implications of choosing to regulate, "California will lose jobs and of course we're going to follow that." Id. (quoting Samuel Bodman).
224. It is true that some economic burdens from stringent regulation of GHGs would be felt in other states, but unless the state is somehow externalizing regulatory burdens, see infra notes 282-85 and accompanying text, the regulating state would feel at least its proportional share of the burden. Conversely, some of the environmental benefits would be externalized as well.
225. See supra notes 187-211 and accompanying text.
226. See Clean Air Act § 115,42 U.S.C. §7415 (2000).
227. Id.
228. The court in Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007), made this point as follows: Although the United States has consistently called for international consensus and a comprehensive approach to global warming, it has never disapproved of domestic regulation of domestic GHG emissions. To the contrary. The United States has praised such efforts to the international community. That the United States also encourages voluntary efforts to reduce GHG emissions is not evidence that domestic regulatory programs are antithetical to the country's foreign policy. Id. at 396.
229. See supra notes 204-19 and accompanying text.
230. As of October 23, 2007, 175 nations, not including the United States, had ratified the Protocol. See UNFCC, Kyoto Protocol Status of Ratification (Oct. 23, 2007), http://unfccc.int/files/kyoto_ protocol/background/ status_of_ratification/application/pdf/kp_ratification.pdf. Indeed, the more accurate description of the United States' approach to global GHG regulation is as a "hold out" tactic - a form of "strategic behavior" in which a party whose participation is necessary for successful collective action refuses to participate in order to extract concessions from other participants. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 55-56 (6th ed. 2003) (discussing the hold out problem as a justification for eminent domain power).
231. See 42 U.S.C. § 7416 (preserving state authority to regulate air pollution, provided state regulation is not less stringent than applicable federal regulation).
232. Id. § 7543(a).
233. See id. §§ 7543(b), 7507. Under § 7543(b), any state that had vehicle emissions standards in place before March 30, 1966, may adopt more restrictive standards if it applies for and receives a waiver from the EPA. In practice, the only state that had standards in place by the specified date is California. See Cent. Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151, 1156 (E.D. Cal. 2007). Under § 7507, other states may opt to follow California's more stringent standards. California applied for a waiver under § 7543(b) to allow it to implement emissions controls on GHGs from passenger cars and light trucks. EPA denied the waiver request in late 2007. See infra note 246. For a discussion of California's unique treatment under the motor vehicle emissions standards of the CAA and its predecessors, see generally Ann E. Carlson, Federalism, Preemption, and Greenhouse Gas Emissions, 37 U.C. DAVIS L. REV. 281 (2003). This system preserves uniformity to a large degree because there are only two possible standards: the federal standard or the California standard. At the same time, it also preserves the states' interest in protecting their citizens from environmental harms based on a different judgment than the federal government regarding the need for protection against those harms.
234. See supra note 52 and accompanying text.
235. One exception to this premise might be when the state regulation would violate the dormant commerce clause, in which case the preemptive effect of congressional inaction is derived from the underlying constitutional provision rather than the inaction of Congress.
236. Legislative inaction can be achieved by any of the three components of the legislative process: the House or Senate by failure to approve or the President if a veto cannot be overridden. See, e.g., Michael J. Kaufman, Mending the Weathered Jurisdictional Fences in the Supreme Court's Securities Fraud Decisions, 49 SMU L. REV. 159, 208 n.361 (1996) (describing the ability of the House, the Senate, or the President to block the enactment of legislation and explaining why "[t]he judicial treatment of congressional inaction as the equivalent of congressional legislation . . . disrupts the constitutional roles assigned to the President and the Congress in the lawmaking process").
237. See supra notes 146-58 and accompanying text.
238. Indeed, there is language in the Supreme Court's recent decision in Massachusetts v. EPA, 127 S. Ct. 1438 (2007), strongly implying that, if the EPA finds as a scientific matter that GHGs have harmful environmental effects, it has no discretion not to regulate them. The Court stated: If EPA makes a finding of endangerment, the Clean Air Act requires the agency to regulate emissions of the deleterious pollutant from new motor vehicles . . . . Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do. To the extent that this constrains agency discretion to pursue other priorities of the Administrator or the President, this is the congressional design. Id. at 1462; see also supra notes 159-63 and accompanying text (discussing debate in academic literature over this question).
239. One of the authors has argued elsewhere that Congress should preempt state environmental regulation despite federal inaction only in very limited circumstances, such as when it determines either that a state's regulatory initiative would inappropriately impose adverse effects on other states or that federal policies can best be achieved in the absence of regulation at any level of government. Further, the courts should find implied preemption arising from federal regulatory inaction based on a conflict with federal objectives only if Congress has explicitly delegated to a federal agency the power to preempt state law to prevent it from subverting federal goals and the agency has clearly and persuasively exercised that authority in favor of no regulation. See generally Robert L. Glicksman, Nothing Is Real: Protecting the Regulatory Void Through Federal Preemption by Inaction, 26 VA. ENVTL. L.J. 5 (2008).
240. Indeed, several of the participants in this Symposium focus on this issue. See Nina Mendelson, A Presumption Against Agency Preemption, 102 NW. U. L. REV. 695 (2008); Ernest Young, Executive Preemption, 102 NW. U. L. REV. 869 (2008); see also Nina Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737 (2004).
241. Nonetheless, the foregoing analysis might suggest that Congress should consider amendments to limit the scope of preemption or otherwise protect states when the EPA fails to regulate harmful pollutants.
242. 42 U.S.C. § 7543(a) (2000).
243. 127 S. Ct. 1438.
244. See id. Before the Supreme Court's decision in Massachusetts v. EPA, this was a more difficult question because one ground the EPA gave for not regulating GHGs was that they were not pollutants. Were this so, then GHGs would be outside the scope of the CAA altogether and thus (although the industry argued otherwise) not within the scope of the preemption provision. The Supreme Court, however, squarely held that GHGs are pollutants within the scope of the CAA and regulation of their emissions by motor vehicles would thus be within the scope of the statutory preemption provision.
245. See Lisa Friedman, Smog Fighters Furious at Bush Administration, L.A. DAILY NEWS, July 3, 2007, at N1 (describing opposition to California's request for a waiver within the federal Department of Transportation).
246. See 42 U.S.C. § 7543(b)(1)(A)-(C) (2000). During the final stages of editing of this Article, the EPA denied California's application for a waiver of the CAA's preemption of state regulation of motor vehicle emissions. Press Release, U.S. EPA, America Receives a National Solution for Vehicle Greenhouse Gas Emissions (Dec. 19, 2007), available at http://yosemite.epa.gov/opa/admpress.nsf/ d0cf6618525a9efb85257359003fb69d/ 41b4663d8d3807c5852573b6008141e5!OpenDocument [herein-after EPA, National Solution]. EPA Administrator Stephen Johnson provided several reasons for the denial in the press release announcing the decision. First, the denial allowed the Bush Administration to "mov[e] forward with a clear national solution - not a confusing patchwork of state rales." Id. Second, President Bush signed the Energy Independence and Security Act of 2007 on the same day that EPA denied the waiver. Pub. L. No. 110-140, 121 Stat. 1492 (2007) (to be codified in scattered sections of 49 U.S.C.). That Act raised the CAFE standards for passenger automobiles to thirty-five miles per gallon by 2020. Id. § 102(a) (to be codified at 49 U.S.C. § 32,902(b)(2)). According to the EPA, efforts to achieve reductions in GHG emissions through implementation of the new, more stringent CAFE standards will be more effective than "a partial, state-by-state approach." EPA, National Solution, supra. Third, California's request for a waiver allowing it to regulate GHG emissions differs from all of California's previous § 7543(b) waiver requests (none of which the EPA had ever completely denied) because previous petitions "covered pollutants that predominantly impacted local and regional air quality," whereas GHGs "are fundamentally global in nature." Id. As a result, California failed to satisfy one of the conditions for issuance of a waiver, that is, California failed to demonstrate that it needs the waiver "to meet compelling and extraordinary conditions." Id.; see also California State Motor Vehicle Pollution Control Standards, 73 Fed. Reg. 12, 156 (Mar. 6, 2008). A full discussion of the merits of the EPA's decision is beyond the scope of this Article, as well as precluded by the timing of the decision. Nevertheless, the EPA's position contains several obvious flaws. For example, as indicated above, see supra note 233, approval of California's waiver would create two and only two standards, not the dreaded "patchwork" referred to by the EPA. This is true even though at the time the EPA denied California's request, at least sixteen other states had already adopted California's standards or announced their intention to do so. See Zachary Coile, EPA Blocks State's Bid to Curb Car Emissions; Ruling Sets Up Battle on Who Has the Right to Fight Global Warming, S. F. CHRON., Dec. 20, 2007, at A1. The CAA only allows other states to adopt or enforce standards that differ from the EPA's if they are identical to California's standards. 42 U.S.C. § 7507; see also supra note 233 and accompanying text. Second, California regulators claim that the state's GHG emissions controls would have forced automakers to sell cars in that state (and other states that adopt the California standards) that achieve greater fuel efficiency than the standards dictated by the Energy Independence and Security
247. 49 U.S.C. § 32,902(a), (c) (2000). The statute requires the NHTSA to set the standards at the "maximum feasible average fuel economy level," after taking into consideration factors that include technological feasibility, economic practicability, the effect of other government standards on motor vehicle fuel economy, and the need to conserve energy. Id. § 32,902(f).
248. Id. § 32,919.
249. Cent. Valley Chrysler-Jeep v. Goldstene, 529 F. Supp. 2d 1151, 1174-75 (E.D. Cal. 2007). The industry also argued that the state regulatory program conflicts with the EPCA because it frustrates the balance between fuel economy and safety struck by the NHTSA. According to the industry, the CAFE program was designed to impose fuel economy standards that maximize fuel economy, while at the same time avoiding economic harm to the auto industry, maintaining consumer choice in vehicle availability, and ensuring vehicle safety, and the state regulatory program will frustrate the balance Congress struck among those goals. Id. at 1178.
250. 2 emissions would look at the same pool of technology used to reduce fuel consumption. NHTSA concludes that it is disruptive to the orderly implementation of the CAFE program, and to NHTSA's reasonable balancing of competing concerns, to have two different governmental entities assessing the need to conserve energy, technological feasibility, economic practicability, employment, vehicle safety and other concerns, and making inconsistent judgments about how quickly and how much of that single pool of technology could and should be required to be installed consistent with those concerns. EPCA does not specify how to weight each concern; thus, NHTSA determines the appropriate weighting based on the circumstances in each CAFE standard rulemaking. More important, ignoring the judgments made by NHTSA at the direction of Congress could result in setting standards at levels higher than NHTSA can legally justify under EPCA, increasing the risk of the harms that that body sought to avoid, e.g., serious adverse economic consequences for motor vehicle manufacturers and unduly limited choices for consumers."). The Ninth Circuit in Center for Biological Diversity v. National Highway Traffic Safety Administration, 508 F.3d 508 (9th Cir. 2007), held that the NHTSA's 2006 CAFE standards for light trucks were arbitrary and capricious and that the NHTSA violated the National Environmental Policy Act in failing to prepare an environmental impact statement on the environmental impacts of and alternatives to the standards.
251. Goldstene, 529 F. Supp. 2d at 1178. The court found that EPA approval of California's GHG emission controls under section 209(b) of the CAA would promote both the CAA's objective of achieving the greatest degree of emissions reduction achievable and the EPCA's goal of implementing the maximum feasible average fuel economy. To the extent the state standards are inconsistent with the CAFE standards, the "NHTSA is empowered to revise its standards taking into account" the California regulations. Requiring the fuel efficiency standards to accommodate GHG emissions controls, rather than vice versa, would be more consistent with the CAA's technology-forcing character. Id. at 1179; see also id. at 1168 (concluding that "Congress intended to allocate to EPA the broader scope of authority to regulate vehicle exhaust emissions for the more important purpose of safeguarding the public's health and welfare"); id. (interpreting the EPCA as evincing "Congress's intent to empower NHTSA to adapt its regulations developed through EPCA to accommodate emissions requirements" adopted or approved by EPA under the CAA to protect health and welfare). Indeed, the court stated that "it would be the very definition of folly if EPA were precluded from action simply because the level of decrease in [GHG] output is incompatible with existing mil[e]age standards under EPCA." Id. at 1170. The district court's conclusion that Congress intended the CAFE standards to give way to GHG emissions controls in the event of inconsistency also casts doubt on the viability of the EPA's reliance on the 2007 energy legislation's increase in CAFE standards as a reason to deny California's waiver application. See supra note 246.
252. Massachusetts v. EPA, 127 S. Ct. 1438,1459 (2007).
253. Insofar as Congress did not directly address the matter, it is reasonable to assume that it did not consider the interaction between fuel economy and emissions standards when it adopted the statutes. In the absence of strong evidence to the contrary, it is also reasonable to assume that Congress did not anticipate that adoption of a preemption provision for fuel economy standards would displace the CAA's waiver system for emissions.
254. See supra note 233.
255. 2, but its long Pacific coast may make it more susceptible to the risk of coastal flooding caused by sea levels that rise in response to global climate change. For a discussion of the possible links between global climate change, melting glaciers and ice sheets, and rising sea levels, see generally Glicksman, supra note 206. California could experience other adverse effects of global climate change. See, e.g., Dean E. Murphy, Study Finds Climate Shift Threatens California, N.Y. TIMES, Aug. 17, 2004, at A19 (reporting on a study financed by the Department of Energy and the California Energy Commission that predicted a reduction in snow pack in the Sierra Nevada of seventy-three to ninety percent by the end of the century if fossil fuel use continues at its present pace; such a reduction would disrupt water supplies to the San Francisco Bay area and the Central Valley); A.L. Westerling et al., Warming and Earlier Spring Increases Western U.S. Forest Wildfire Activity, 313 SCIENCE 940 (Aug. 18, 2006) (describing a University of California study linking increased wildfire activity to global climate change).
256. Massachusetts, 127 S. Ct. at 1461-62.
257. Id. at 1462 (citations omitted).
258. Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 343-44 (D. Vt. 2007). The court noted that "[t]he Supremacy Clause is not implicated when federal laws conflict or appear to conflict with one another. In such a case courts have a duty to give effect to both provisions, if possible." Id. (citations omitted).
259. Id. at 347. According to the court, once the EPA issues a waiver to California, the emissions controls approved by the waiver (as well as identical controls adopted by any other state adopted pursuant to section 177 of the CAA, 42 U.S.C. § 7507) become "a motor vehicle standard of the [federal] government, with the same stature as a federal regulation." Crombie, 508 F. Supp. 2d at 347.
260. Crombie, 508 F. Supp. 2d at 350 (citing Exec. Order No. 13,432, 72 Fed. Reg. 27,717 (May 14, 2007)).
261. 2 emissions from motor vehicles. Id. at 354-55. The court found no "inherent conflict" between the EPCA fuel economy mandate and the control of GHG emissions, id. at 356, and concluded that state GHG emissions controls do not disrupt the balance struck by Congress between reducing emissions levels and improving fuel economy, rejecting a variety of industry arguments against Vermont's emissions control regulations. Id. at 358-92 (rejecting industry arguments that the controls were not technologically feasible or economically practical, would deprive consumers of choice in vehicles, would create hardship for the industry and cause the loss of jobs, and would reduce vehicle safety). The recent adoption of the Energy Independence and Security Act should not affect this analysis. See Pub. L. No. 110-140, § 3, 121 Stat. 1492 (2007) (to be codified in scattered sections of 49 U.S.C.) ("Except to the extent expressly provided . . . nothing in this Act or an amendment made by this Act supersedes, limits the authority provided or responsibility conferred by, or authorizes any violation of any provision of law (including a regulation), including any energy or environmental law or regulation.").
262. The adoption of state motor vehicle emissions controls on GHGs raises additional issues relating to the balancing of competing interests that are discussed infra Part II.C.
263. Cf. Kirsten H. Engel, Harnessing the Benefits of Dynamic Federalism in Environmental Law, 56 EMORY L.J. 159, 163 (2006) ("Preemption . . . is the real boogeyman of public interest lawmaking because it prevents the political process from policing itself."). In the wake of the EPA's denial of California's application for a waiver to allow it to regulate GHG emissions from automobiles, see supra note 246, environmental groups and even some industry analysts characterized the waiver denial as apparently "a reward to the [auto] industry, in return for dropping its opposition to the energy legislation." Micheline Maynard, E.P.A. Says 17 States Can't Set Greenhouse Gas Rules for Cars, N.Y. TIMES, Dec. 20, 2007, at A1.
264. 2 emissions in 2000.").
265. See Thomas Magnusson, Fredrik Tell & Jim Watson, From CoPS to Mass Production? Capabilities and Innovation in Power Generation Equipment Manufacturing, 14 INDUS. & CORP. CHANGE 1, 1 (2005) (characterizing traditional large-scale power plants as "high-cost, unit-produced and customized," and contrasting them with dispersed microgenerators, which are "less complex, standardized, easy to install and designed for mass production").
266. Congress included an express floor preemption provision, 42 U.S.C. § 7416 (2000), but there is no corresponding provision for ceiling preemption.
267. See id. §§ 7407(a), 7410; Train v. Natural Res. Def. Council, Inc., 421 U.S. 60, 79 (1975) (concluding that "so long as the ultimate effect of a State's choice of emission limitations is compliance with the national standards for ambient air, the state is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation").
268. The CAA requires states to develop permit programs as a means of imposing and enforcing controls on individual sources. The permit program is codified as Title V of the CAA, 42 U.S.C. §§ 7661-7661f.
269. Id. §7411.
270. Id. § 7412.
271. Id. § 7416.
272. Moreover, the absence of a ceiling preemption provision for stationary sources gives rise to a negative inference insofar as the statute includes an express ceiling preemption provision for motor vehicle emissions standards.
273. See supra notes 101-10 and accompanying text.
274. This is a variant on the free rider problem inherent in the production of public goods. See supra note 1 (discussing collective action theory).
275. The Department of Homeland Security has taken the position that it has the power to preempt state chemical security regulations for high-risk facilities. See Department of Homeland Security, Chemical Facility Anti-Terrorism Standards, 71 Fed. Reg. 78,276, 78,292 (Dec. 28, 2006) (advance notice of rulemaking) (declaring high-risk chemical facilities to be matters of national security).
276. See Glicksman, supra note 13, at 736; supra note 90 and accompanying text.
277. See Erwin Chemerinsky et al., California, Climate Change, and the Constitution, 37 ENVTL. L. REP. 10,653, 10,653 (2007) ("The threat of climate change does not hinge on where GHG emissions occur. On the contrary, because these gases quickly assimilate into the global atmosphere, emissions in Florence, Italy, have the same global impact as those releases in Florence, California.").
278. There may be other reasons that a state or local government may object to the location of a power plant within its jurisdiction, including the emission of more localized pollutants, such as particulate matter. Such objections may justify preemption of state controls on those emissions to avoid NIM-BYism, but they do not support ceiling preemption of state or local controls on GHG emissions.
279. See, e.g., 42 U.S.C. § 7401(b)(1) (2000) (setting forth the purpose of protecting and enhancing air quality to promote public health and welfare and the productive capacity of the U.S. population); id. § 7470(3) (declaring the purpose of insuring that economic growth will occur in areas with relatively clean air "in a manner consistent with the preservation of existing clean air resources"); see also Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 851 (1984) (characterizing the CAA's permit program for new and modified major stationary sources in nonattainment areas as an effort by Congress "to accommodate the conflict between the economic interest in permitting capital improvements to continue and the environmental interest in improving air quality").
280. This argument might apply in some contexts to other kinds of considerations that must be balanced against environmental benefits. For example, the CAFE standards adopted by the NHTSA represent that agency's effort to comply with its obligation under the EPCA to balance a series of health, safety, energy policy, and economic factors, which the NHTSA has argued would be disrupted by regulation of GHG emissions from motor vehicles. See supra note 250. If efforts to comply with a state's tailpipe emissions standards on GHGs require states to manufacture and sell a different kind of fleet than they would otherwise have done in meeting their EPCA obligations, the balance struck by the federal agency might be disrupted. Manufacturers, for example, might decide to build smaller hybrid cars than they would need to manufacture to comply with the applicable CAFE standards. If the occupants of these vehicles are more susceptible to injuries from accidents than the occupants of the vehicles they replaced would have been, the result might be a decline in safety below the level that the NHTSA concluded was desirable. Such a disruption of the federally struck balance raises legitimate concerns, but preemption of state authority should not be inferred absent clear evidence that Congress intended to prevent states from striking a different balance than the federal agency struck.
281. See United States v. Lopez, 514 U.S. 549, 564 (1995) (rejecting the government's economic effects argument for federal regulation of gun possession in schools in part because under that argument, "it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign").
282. See supra notes 181-83 and accompanying text. If anything, because reduced GHG emissions would produce the same world-wide environmental benefits regardless of where they occur, the state is bearing the regulatory costs but externalizing the environmental benefit. Externalities may arise, however, when states regulate products sold within the state but produced elsewhere, an issue that arises in connection with motor vehicles. See supra notes 115-18 and accompanying text. Aside from motor vehicles, there appear to be few mass-produced products that are shipped throughout the United States that emit GHGs. In other contexts, such as products liability, the problem of exporting regulatory burdens through regulation of products sold in a state is a much more sweeping one.
283. Janine Maney, Carbon Dioxide Emissions, Climate Change, and the Clean Air Act: An Analysis of Whether Carbon Dioxide Should Be Listed as a Criteria Pollutant, 13 N.Y.U. ENVTL. L.J. 298, 370 (2005) (citing U.S. DEP'T OF STATE, U.S. CLIMATE ACTION REPORT-2002, THIRD COMMUNICATION OF THE UNITED STATES OF AMERICA UNDER THE UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE 226 (2002), available at http://yosemite.epa.gov/oar/globalwarming.nsf/content/ ResourceCenterPublicationsUSClimateActionReport.html) (stating that electrical utilities accounted for twenty-nine percent of U.S. emissions from 1990 to 1999).
284. See Kirsten H. Engel & Scott R. Saleska, Subglobal Regulation of the Global Commons: The Case of Climate Change, 32 ECOLOGY L.Q. 183, 230 (2005) ("[A]s a result of electricity deregulation in many states, the reach of electricity grids and markets is now regional, if not national. A patchwork of different state and regional climate regulations could increase costs and to a degree undermine industry competition.").
285. If Congress is concerned about the economic disruptions that such price hikes might cause, it could address this problem through a variety of means other than ceiling preemption of state GHG regulation. For example, it could address the issue through rate regulation or the provision of federal subsidies to those consumers hardest hit by price increases traceable to the imposition of controls on emissions. Those options would prevent the state seeking to regulate emissions from exporting economic burdens to other states while protecting the environmental policy decision of the regulating state.
286. It might be argued that lack of information could lead states to overregulate because of information processing errors that lead to exaggerated public fears of environmental harms. See supra note 125. But as noted previously, once information has been produced the federal and state governments are acting on the same information and responding to the same public fears. Thus, it not clear why the federal judgment about the legitimacy of those fears is inherently more likely than the state's judgment to be accurate.
287. See supra notes 128-29 and accompanying text.
288. Jonathan H. Adler, Judicial Federalism and the Future of Federal Environmental Regulation, 90 IOWA L. REV. 377, 466 (2005); Eric Lipton & Gardiner Harris, In Turnaround, Industries Seek U.S. Regulations, N.Y. TIMES, Sept. 16,2007, at A1.
289. E.g., Felicity Barringer, A Coalition for Firm Limit on Emissions, N.Y. TIMES, Jan. 19, 2007, at C1.
290. 42 U.S.C. § 7416 (2000).
291. 331 F.3d 665 (9th Cir. 2003).
292. 42 U.S.C. § 7545(k)(2)(B), (m)(2)(B). This requirement was part of an effort to bolster the use of "clean fuels" that are inherently less polluting than those already on the market. Congress repealed the oxygenate requirement in the Energy Policy Act of 2005, Pub. L. No. 109-58, § 1504, 119 Stat. 594, 1077 (2005).
293. Oxygenated Fuels, 331 F.3d at 667.
294. Id. at 670.
295. 42 U.S.C. § 7401(a)(3), (b)(4), (c).
296. Id. § 7545(c)(4)(B).
297. Oxygenated Fuels, 331 F.3d at 672.
298. Id. at 673 (citations omitted).
299. Id.
300. Under a cap-and-trade program, total emissions of a given pollutant are capped and businesses are allocated a proportion of the total as emissions allowances, which can then be used, sold, or traded. The theory is that market forces will encourage low-cost pollution avoiders to reduce their emissions and sell their allowances, which will in turn be purchased by polluters for whom it would be costly to reduce emissions. In this way, market forces will lead to an efficient allocation of the costs of reducing pollution. The level at which the government sets the cap affects whether the aggregate amount of allowable pollution is efficient, but a trading program is designed to assure efficiency of pollution reduction efforts, rather than to assure an efficient overall level of pollution. Thus, even if the overall cap is too high or too low, market forces would still lead to the reduction of pollution by those polluters who can most efficiently do so.
301. See supra note 175 and accompanying text.
302. See, e.g., HUNTER ET AL., supra note 179, at 691-94, 705-11.
303. E.g., S. 843, 108th Cong. § 704 (2003).
304. A state law that directly restricts purchases would have essentially the same effect.
305. Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. 28,606 (May 18, 2005) (codified at 40 C.F.R. pts. 60, 72 & 75 (2006)). The regulations reflect the EPA's conclusion that such an approach represents the most cost-effective way to achieve reductions in mercury emissions from power plants. Id.
306. See Lisa Heinzerling & Rena Steinzor, A Perfect Storm: Mercury and the Bush Administration, 34 ENVTL. L. REP. 10,297 (2004); Lisa Heinzerling & Rena Steinzor, A Perfect Storm: Mercury and the Bush Administration, Part II, 34 ENVTL. L. REP. 10,485 (2004).
307. See Margaret Kriz, States Blowing Out the Fuse on Mercury Rule, ENVTL. F., Nov./Dec. 2006, at 6, 6 (indicating that twenty-four states have approved or are in the process of approving restrictions on mercury emissions from coal-fired power plants that are more stringent than those adopted by the EPA in 2005); see also John Pendergrass, States Rolling Out Mercury Cut Plans, ENVTL. F., Jan./Feb. 2007, at 10, 10 (describing state efforts to reduce mercury emissions below federally mandated levels, including programs that completely prohibit trading of mercury emissions allowances).
308. 40 C.F.R. § 60.24(h) (2005); see also Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. at 28,624 (stating that for "States that elect not to participate in an EPA-managed cap-and-trade program, their respective State [mercury] budgets will serve as a firm cap"); id. at 28,640 ("States, in fact, can choose not to participate in the optional cap-and-trade program. However, EPA believes that a cap-and-trade system for the power sector is the best approach for reducing Hg emissions and EPA's analysis assumes that States will adopt this more cost effective approach.").
309. 400 C.F.R. § 60.24(g) (2005); see also Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. at 28,632 ("States remain authorized to require emissions reductions beyond those required by the State budget, and nothing in the final rule will preclude the States from requiring such stricter controls and still being eligible to participate in the Hg Budget Trading Program.").
310. In response to pressure from federal legislators, for example, the EPA has reportedly considered adopting its own restrictions on trading of benzene emissions credits among oil refineries as a means of addressing potential hot spots. See Anthony Lacey, EPA May Scale Back Benzene Credit Trading in Final Air Toxics Rule, INSIDE E.P.A. WEEKLY, Feb. 2, 2007, at 1, 8-9. Nevertheless, when the EPA issued its regulations for controlling emissions of hazardous air pollutants, including benzene, from motor vehicles, in 2007, it decided not to impose geographic restrictions on trading based on its finding that doing so could reduce refiners' incentives to generate credits and "hinder trading essential to this program." Control of Hazardous Air Pollutants from Mobile Sources, 72 Fed. Reg. 8428, 8489 (Feb. 26, 2007). It did, however, put a ceiling on the total content of benzene in gasoline produced after 2011. See id. at 8477 (stating that "credits may not be used to demonstrate compliance with the 1.3% maximum average standard"); id. at 8484 (explaining that a maximum average cap ensures "that the benzene content of gasoline produced by each refiner . . . will average no higher than this standard, regardless of the use of credits"); 40 C.F.R. § 80.1230(b)(2) (2005). More to the point, the federal regulations will not affect California's preexisting standard, which is more stringent than the new federal standards. Id. § 80.1236.
311. It might be argued, by analogy to the taxation of federal institutions in McCulloch, see supra notes 62-66 and accompanying text, that the disruption of the cap-and-trade market for allowances imposes burdens on the federal program that are borne by all the states, while the environmental benefits of preventing hot spots are concentrated locally. By the same token, however, other states are externalizing the environmental costs of activities causing unsafe concentrations of pollution elsewhere. Thus, any congressional decision to preempt in this area should carefully consider the states' interests in protecting their citizens from significant environmental harms.
312. If there are fewer allowance buyers competing for allowances in the cap-and-trade market, the price sellers are able to charge for an allowance will fall.
313. One exception would be if there is a NIMBY problem, in the sense that states have an incentive to limit purchases so as to force environmentally hazardous, but necessary, activities elsewhere. In such cases, ceiling preemption to protect a cap-and-trade program may be necessary, but it might also be necessary to ensure that federal regulation addresses the hot-spot problem in some way.
314. See supra note 277 and accompanying text. On the other hand, some states might bear the costs of climate change more heavily, particularly states with significant coastlines.
315. See, e.g., Chemerinsky, supra note 277, at 10,655 (claiming that one of California's objectives in regulating GHG emissions "is to reduce the impact that California has on climate change - a problem of global dimensions").
316. 2 allowances that prohibited their later transfer to and usage in an upwind state.
317. See GLICKSMAN ET AL., supra note 14, at 541-42.
318. Clean Air Mkts. Group v. Pataki, 338 F.3d 82 (2d Cir. 2003). The court did not reach the issue of whether the state statute violated the dormant commerce clause.
319. Either of those options is presumably more expensive than purchasing allowances from the New York utility would be, were that allowed.
320. As the decision in Massachusetts v. EPA indicates, some places are more likely to experience particular kinds of adverse effects arising from global climate change than others are. 127 S. Ct. 1438, 1442-43 (2007). Coastal states and nations, for example, are at greater risk of flooding than are places that do not abut the oceans. But a state cannot avoid experiencing those effects by forcing GHG-emitting facilities to locate near the state's border or by precluding such facilities from operating within the state altogether. If a facility excluded from state A locates in state B (or nation C) and generates the same amount of GHGs as it would have were it located in state A, the impact of climate change on state A will be the same as it would have been were the facility located in state A.
321. We hope in a subsequent article to develop the framework and consider its application to a broader range of regulatory fields.