Null preemption

Notre Dame Law Review

Volumn 85, Issue 3, 2010, Pages 1015-1079

  Nash, Jonathan Remy ^a  

^a EMORY UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 70449105533     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (451)

1. See, e.g., Symposium, Ordering State-Federal Relations Through Federal Preemption Doctrine, 102 Nw. U. L. REV. 503 (2008).
2. See William W. Buzbee, Interaction's Promise: Preemption Policy Shifts, Risk Regulation, and Experimentalism Lessons, 57 EMORY L.J. 145, 147-148 (2007).
3. See infra note 118 and accompanying text.
4. See, e.g., William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction, 82 N.Y.U. L. REV. 1547, 1549-1550 (2007) (framing questions about the role of federal preemption with this underlying assumption).
5. See Massachusetts v. EPA, 549 U.S. 497, 511-514 (2007) (summarizing the EPA's argument that it lacked authority to regulate the emissions).
6. See infra notes 63-65 and accompanying text.
7. 549 U.S. 497 (2007).
8. Id. at 528-532
9. See infra note 66.
10. See infra note 57 and accompanying text
11. See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66, 496 (Dec. 15. 2009);
12. John M. Broder, EP. A. Expected to Regulate Carbon Dioxide and Other Heat-Trapping Gases, N.Y. TIMES, Feb. 19, 2009, at A15.
13. See Ernest A Young, Federal Preemption and State Autonomy, in FEDERAL PREEMPTION 249, 255 (Richard A Epstein & Michael S. Greve eds., 2007) ("The Constitution . . . does not enact laissez faire economics; it does enact a basic balance of authority between state and federal governments."). Note that, despite the usual sense in which government regulation is seen to impinge upon individual rights, regulation may sometimes be deployed to enhance people's rights by, for example, recognizing enforceable property rights.
14. Thus, in Goldstein v. California, 412 U.S. 546 (1973), the Court held that states could enforce laws criminalizing the piracy of sound recordings, even though Congress had affirmatively declined to afford copyright protection to sound recordings.
15. Id. at 571. In rejecting an argument for effective null preemption, the Court upheld states' ability to afford greater rights to their citizens than were created under federal law.
16. Id.
17. See infra Part II.B.
18. See infra text accompanying notes 161-64;
19. see generally Robert L. Glicksman, Nothing Is Real: Protecting the Regulatory Void Through Federal Preemption by Inaction, 26 VA. ENVTL. L.J. 5 (2008) (considering "when inaction by either Congress or a federal regulatory agency should be deemed to preempt state law").
20. See infra Part II.B.
21. For an overview of the science and public policy issues related to global warming, see Jonathan Remy Nash, Standing and the Precautionary Principle, 108 COLUM. L. REV. 494, 507-508 (2008).
22. See Massachusetts v. EPA, 549 U.S. 497, 511-512 (2007).
23. See Nash, supra note 16, at 507.
24. See infra note 58 and accompanying text
25. For additional discussion, see generally Jonathan Remy Nash, Beyond Kyoto: The Treatment of Outliers, 15 U.C. DAVIS J. INT,'L L. & POL. 31 (2008) (explaining the history and questionable future of the treaty regime addressing climate change).
26. United Nations Framework Convention on Climate Change, May 29, 1992, 1771 U.N.T.S. 107.
27. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, 2303 U.N.T.S. 162.
28. See id. art. 3, 2303 U.N.T.S. at 216-218
29. See Nash, supra note 16, at 507 n.62.
30. 42 U.S.C. §§7401-7671 (2006 & Supp. II 2008).
31. The CAA directs the EPA Administrator to identify "air pollutant[s] . . . emissions of which, in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare." CAA §110(a)(1), 42 U.S.C. §7408(a) (1) (A). For each such pollutant, the EPAisto generate primary and secondary "national ambient air quality standards"- or "NAAQS" - that represent the maximum ambient levels of the pollutant appropriate to protect the public health and welfare, respectively.
32. See id. §109(b), 42 U.S.C. §7409(b). The states are then directed to generate "implementation plans" that explain how they will comply with the NAAQS.
33. See id. % 110, 42 U.S.C. §7410. There are currently only six pollutants for which NAAQS have been issued. Since the enactment of the CAA in 1970, the EPA has identified only one additional criterion air pollutant- lead- and that was after the EPA had been compelled by court order to do so. The EPA has never identified a criterion air pollutant based on its status as a greenhouse gas. Greenhouse gases thus remain essentially unregulated under the heart of the CAA.
34. Id. § 201 (a)(1), 42 U.S.C. § 7521 (a)(1).
35. Id. § 209(a), 42 U.S.C. § 7543(a). The provision adds: "No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment" Id.
36. See id. § 209(b), 42 U.S.C. § 7543(b).
37. Id. § 209(b)(1)(A), 42 U.S.C. § 7543(b)(1)(A).
38. Id. § 209(b)(1)(B), 42 U.S.C. § 7543(b)(1)(B).
39. Id. § 209(b)(1)(C), 42 U.S.C. § 7543(b)(1)(C).
40. See id. § 177, 42 U.S.C. § 7507.
41. See id. § 209(a), 42 U.S.C. § 7543(a).
42. Id.
43. See Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt Dist, 541 U.S. 246, 252-255 (2004) (precluding state imposition of rules applicable to public and private operators of fleets of vehicles that would have required the operators to purchase vehicles that complied with state pollution reduction rules).
44. CAA § 108(a) (1) (A), 42 U.S.C. § 7408(a) (1) (A).
45. See id. § 177, 42 U.S.C. § 7507.
46. See infra notes 63-66 and accompanying text
47. See infra notes 71-74, 125 and accompanying text
48. The environmental organizations were the original plaintiffs, with the states intervening. See Massachusetts v. EPA, 549 U.S. 497, 511, 514 (2007).
49. Id. at 517.
50. Id. at 528.
51. Id. at 532-533
52. This was certainly the view of the Chief Justice in dissent. See id. at 540-546 (Roberts, C.J., absenting).
53. See id. at 518-520 (majority opinion).
54. Specifically, the Court found that Massachusetts had sufficiently established harm, causation, and redressability. See id. at 521-26. For a critique of the Court's approach, see Nash, supra note 16, at 524-525
55. See Massachusetts, 549 U.S. at 521 ("EPA regards as an 'objective and independent assessment of the relevant science" a report by the National Research Council that "identifies a number of environmental changes that have already inflicted significant harms." (citations omitted)
56. (quoting Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52, 922, 52, 930 (Envd. Prot Agency Sept 8, 2003))).
57. The Court explained: "We . . . attach considerable significance to EPA's 'agree [ment] with the President that we must address the issue of global climate change,' and to EPA's ardent support for various voluntary emission-reduction programs."
58. Id. at 526
59. (quoting Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. at 52, 929) (internal quotation marks omitted). It further acknowledged that, "[a]s Judge Tatel observed in dissent below, 'EPA would presumably not bother with such efforts if it thought emissions reductions would have no discemable impact on future global warming."
60. Id.
61. (quoting Massachusetts v. EPA 415 F.3d 50, 60 (D.C. Cir. 2005), rev'd, 549 U.S. 497 (2007)).
62. Id. at 521-523
63. Id. at 528-529
64. See id. at 529-31. As the Court explained: Even if... postenactment legislative history could shed light on the meaning of an otherwise-unambiguous statute, EPA never identifies any action remotely suggesting that Congress meant to curtail its power to treat greenhouse gases as air pollutants. That subsequent Congresses have eschewed enacting binding emissions limitations to combat global warming tells us nothing about what Congress meant when it amended §202(a)(1) in 1970 and 1977.
65. Id. at 529-530
66. See id. at 533.
67. Id.
68. See id. at 533-535
69. Id. at 535.
70. See Glicksman, supra note 14, at 14 & n.38;
71. Jason Scott Johnston, Climate Change Confusion and the Supreme Court: The Misguided Regulation of Greenhouse Gas Embsions Under the Clean Air Act, 84 NOTRE DAME L. REV. 1, 63 (2008).
72. See supra note 11 and accompanying text Congress has recently considered proposals to regulate greenhouse-gas emissions. See, e.g., American Clean Energy and Security Act of 2009, H.R. 2454, 111th Cong, (as passed by House of Representatives, June 26, 2009);
73. America's Climate Security Act of 2007, S. 2191, 110th Cong. (2007).
74. Massachusetts, 549 U.S. at 528.
75. See Felicity Barringer, California Sues E.P.A. over Denial of Waiver, N.Y. TIMES, Jan. 3, 2008, at A14.
76. See Cent Valley Chrysler-jeep v. Witherspoon (Cent. Valley Chrysler-Jeep I), 456 F. Supp. 2d 1160, 1163 (E.D. Cal. 2006).
77. See Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 350 (D. Vt 2007) (holding that Vermont regulations were not preempted);
78. Cent Valley Chrysler-Jeep v. Goldstene (Cent. Valley Chrysler-Jeep II), 529 F. Supp. 2d 1151, 1190 (E.D. Cal. 2007) (rejecting on summary judgment claims that California standards were preempted by the Energy Policy and Conservation Act and were unenforceable on foreign policy preemption grounds);
79. Cent. Valley Chrysler-Jeep I, 456 F. Supp. 2d at 1174, 1183-1187 (dismissing on pleadings claims that California standards violated the dormant Commerce Clause and were preempted by the Sherman Act and holding that the EPA waiver was needed to avoid Clean Air Act preemption).
80. Cent. Valley Chrysler-Jeep I, 456 F. Supp. 2d at 1174-75. In a subsequent opinion, the district court noted that the state defendants had "acknowledge [d] and . . . conceded in open court" the legal conclusion that "the new regulations could not be enforced absent a waiver from EPA"
81. Cent Valley Chrysler-jeep Inc. v. Witherspoon, No.CV F 04-6663, 2007 WL 135688, at *5 (E.D. Cal. Jan. 16, 2007). The district court's final holding furthers the point, stating that enforcement by California (and other states) of the California motor vehicle greenhouse-gas standards was not barred by foreign policy preemption where "California's .. . [r]egulations [are] granted [a] waiver of preemption by EPA pursuant to section 209 of the Clean Air Act."
82. Cent. Valley Chrysler-Jeep II, 529 F. Supp. 2d at 1190.
83. Green Mountain Chrysler, 508 F. Supp. 2d at 302.
84. Id. at 343 n.50 (citations omitted).
85. See Kevin M. Davis, The Road to Clean Air Is Paved with Many Obstacles: The U.S. Environmental Protection Agency Should Grant a Waiver for California to Regulate Automobile Greenhouse Gas Emissions via Assembly Bill 1493, 19 FORDHAM ENVTL. L. REV. 39, 93-95 (2009).
86. See California State Motor Vehicle Pollution Control Standards;
87. Notice of Decision Denying a Waiver of Clean Air Act Preemption for California's 2009 and Subsequent Model Year Greenhouse Gas Embsion Standards for New Motor Vehicles, 73 Fed. Reg. 12, 156-57 (Envtl. Prot Agency Mar. 6, 2008).
88. See Barringer, supra note 60.
89. See Steven D. Cook, Waxman Opens Investigation into EPA Denial of California's Greenhouse Gas Limit Waiver, 39 ENV'T REP. (BNA) 12, 12 (2008).
90. See John M. Broder & Peter Baker, Obama's Order Likely to Tighten Auto Standards, N.Y. TIMES, Jan. 26, 2009, at Al.
91. See supra note 11 and accompanying text
92. While itistheoretically possible that the EPA might have acted differently with respect to the need for California's waiver application, thereisevery reason to believe that the EPA would have adhered to the view that California could not enforce its motor vehicle greenhouse-gas emissions standards absent an EPA waiver. Indeed, such was - even before the Court's holding in Massachusetts v. EPA-the holding of the California district court, and thereafter a premise accepted by courts and parties (including state governments) alike. And, similarly, while a contrary ruling in Massachusetts may have led the EPA to grant California's waiver request, it is far from inconceivable that the EPA still would have denied that request.
93. See supra notes 42-44 and accompanying text
94. See Broder, supra note 11.
95. 12 U.S.C. §§ 21-216d (2006).
96. Id. §24 (Seventh).
97. Watters v. Wachovia Bank, N.A., 550 U.S. 1, 11 (2007);
98. see also 12 U.S.C § 484(a) ("No national bank shall be subject to any visitorial powers except as authorized by Federal law . . . .").
99. See Franklin Nat'l Bank v. New York, 347 U.S. 373, 377-379 (1954).
100. Watters, 550 U.S. at 41.
101. 29 U.S.C. §§151-169 (2006).
102. See Chamber of Commerce v. Brown, 128 S. Ct 2408, 2412 (2008).
103. Id.
104. (quoting Machinists v. Wis. Employment Relations Comm'n, 427 U.S. 132, 140 (1976)) (internal quotation marks omitted);
105. see also id. at 2417 ("We have characterized Machinists pre-emption as 'creat[ing] a zone free from all regulations, whether state or federal."
106. (quoting Bldg. & Constr. Trades Council v. Associated Builders & Contractors of Mass./R.L, Inc., 507 U.S. 218, 227 (1993))).
107. See Rutheford B. Campbell, Jr., The Insidious Remnants of State Rules Respecting Capital Formation, 78 WASH. U. L.Q. 407, 410 (2000). These blue sky laws were seen to be consistent with the federal securities laws (which postdated the blue sky laws) because the federal laws took the different tack of requiring disclosure and imposing procedural requirements, rather than substantive requirements, on issuers.
108. See id.
109. President Franklin Roosevelt's initial request that Congress enact securities regulation legislation specifically disclaimed the notion that the federal government should "take any action which might be construed as approving or guaranteeing that newly issued securities are sound in the sense that their value will be maintained or that the properties which they represent will earn profit." H.R. REP. NO.73-85, at 2 (1933). Nonetheless, early draft bills did call for federal qualification requirements.
110. See James M. Landis, The Legislative History ofthe Securities Act of 1933, 28 GEO. WASH. L. REV. 29, 31-32 (1959). However, the draft bill that ultimately became the Securities Act of 1933 "remained true to the conception . . . that its requirements should be limited to full and fair disclosure of the nature of the security being offered and that there should be no authority to pass upon the investment quality of the security."
111. Id. at 34.
112. See Charles M. Yablon & Jennifer Hill, Timing Corporate Disclosures to Maximize Performance-Based Remuneration: A Case of Misaligned Incentives?, 35 WAKE FOREST L. REV. 83, 92 & n.36 (2000).
113. Pub. L. No.104-290, 110 Stat 3416 (codified as amended in scattered sections of 15 and 29 U.S.C).
114. Since NSMIA, federal law precludes states from imposing qualification requirements on any "covered security." Securities Act of 1933 §18(a)(1)(A), 15 U.S.C. § 77r(a)(1)(A) (2006). "Covered security" is defined to include any securities listed, or to be listed, on a national stock exchange or the NASDAQ National Market and all securities sold under Securities Act Rule 506, the SECs private placement safe harbor. See id. §§18(b)(1)-(4), 15 U.S.C. §77r(b)(1)-(4);
115. Renee M.Jones, Does Federalism Matter? Its Perplexing Role in the Corporate Governance Debate, 41 WAKE FOREST L. REV. 879, 890 n.68 (2006).
116. See Campbell, supra note 83, at 411-412
117. Securities Act of 1933 § 18(2), 15 U.S.C. §77d(2).
118. See 17 C.F.R. §230.506 (2009).
119. See Jennifer J. Johnson, Private Placements: A Regulatory Black Hole, 35 DEL. J. CORP. L. (forthcoming 2010) (manuscript at 34-36).
120. See, e.g., id. (manuscript at 49-61);
121. G. Philip Rutledge, NSMIA . . . One Year Later: The States' Response, 53 Bus. LAW. 563, 565-66 (1998) (arguing that the regulatory void might allow persons with disciplinary records to purvey stocks under Rule 506). The North American Securities Administrators Association (NASAA) has listed the "[Reinstatement of] State Regulatory Authority of Regulation D 506 Offerings" as part of its 2008 Agenda.
122. See N. Am. Sec. Adm'rs Ass'n, 2008 Pro-Investor Legislative Agenda para. 8 (2008), http://www.nasaa.org/content/Files/NASAA-Legblative-Agenda-2008.pdf.
123. But see Michael A Peřino, Fraud and Federalism: Preempting Private State Securities Fraud Causes of Action, 50 STAN. L. REV. 273, 332 (1998) (arguing that because "large private placements to institutional or other sophisticated investors are typically sold in interstate commerce," and "sophisticated investors [are] capable of protecting themselves, additional state causes of action are likely unnecessary").
124. If instead it were empowered, but nonetheless declined, to do so, then null preemption would still apply, but it would be of the type discussed below - where Congress preempts state law and executive branch inaction generates a level of "zero regulation."
125. See Securities Act of 1933 § 18(a)(1)(A), 15 U.S.C. §77r-1 (a) (1)(A);
126. John C. Coffee, Jr., & Hillary A. Sale, Redesigning the SEC: Does the Treasury Have a Better Idea?, 95 VA. L. REV. 707, 763 (2009).
127. See, e.g., Roberta S. Karmel, Blue-Sky Merit Regulation: Benefit to Investors or Burden on Commerce?, 53 BROOK. L. REV. 105, 116-24 (1987);
128. Perino, supra note 92, at 318-329
129. See, e.g., Manning Gilbert Warren III, Reflections on Dual Regulation of Securities: A Case Against Preemption, 25 B.C. L. REV. 495, 527-537 (1984).
130. N.Y. GEN. BUS. LAW §251-g (McKinney 2004 & Supp. 2009).
131. See Jeff Bailey, Long Delays Hurt Image of JetBlue, N.Y. TIMES, Feb. 17, 2007, at C1 (describing episode in which, in wake of ice storm, nine JetBlue Airlines aircraft sat on the tarmac at John F. Kennedy International Airport for anywhere between six and ten hours);
132. John Doyle et al., Air 'Refugees' in New JFKaos: Hordes Camp Overnight Before JetBlue Says: Tough Luck, No Flights, N.Y. POST, Feb. 16, 2007, at 10 (same);
133. Joe Sharkey, After 8 Hours on the Taxiway, You Might Want a Bill of Rights, N.Y. TIMES, Jan. 30, 2007, at C8 (describing a similar episode on an American Airlines aircraft at Dallas-Fort Worth International Airport).
134. 520 F.3d 218 (2d Cir. 2008).
135. Id. at 220.
136. Pub. L. No.95-504, 92 Stat 1705 (codified as amended in scattered sections of 18, 26, and 49 U.S.C.). The Act's preemption provision states that a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart. 49 U.S.C. § 41.713(b)(1) (2006).
137. Other states had proposed similar legislation. See Air Transp. Ass'n, 520 F.3d at 224 n.1;
138. see also David K. Randall, Legislator Calls for an Airline Passenger 'Bill of Rights', N.Y. TIMES, Sept. 2, 2007, at NJ2 (noting New Jersey legislator's call to emulate New York's passenger bill of rights).
139. Air Transp. Ass'n, 520 F.3d at 224 n.1. Only late last year did the Department of Transportation in fact formally promulgate such measures. See Enhancing Airline Passenger Protections, 74 Fed. Reg. 68, 983 (Dec. 30, 2009).
140. 105 F.3d 841 (2d Cir. 1997).
141. Id. at 843, 848-53;
142. see also 17 U.S.C. § 301 (2006) (providing for federal preemption of state copyright law).
143. Nat'l Basketball Ass'n, 105 F.3d at 849.
144. Id.
145. When I speak of the federal government "affirmatively" preempting state law, I mean only that the federal government takes some affirmative step to preempt state law. I thus do not mean to exclude implied conflict preemption or implied field preemption. As I shall discuss below, however, neither of these types of preemptionis likely to underlie null preemption; rather, express preemption is. See infra Part II.B.2.b.
146. U.S. CONST, amend. I.
147. In its original form, the First Amendment divested Congress of the power to "abridg[e] the freedom of speech." U.S. CONST, amend. I. Analogous preemption of state law arises from the Supreme Court's decisions that incorporate the First Amendment into the Fourteenth Amendment's Due Process Clause that limits the powers of the states. See, e.g., First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 779-80 (1978) (finding freedom of speech to be a "fundamental component of the liberty safeguarded by the Due Process Clause");
148. Gitlow v. New York, 268 U.S. 652, 666 (1925) (same).
149. See Pac. Gas & Elec. Co. v. Pub. Utils. Comm'n of Cal., 475 U.S. 1, 8 (1986) ("By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public's interest in receiving information.").
150. U.S. CONST, art. I, §8, cl. 3 (empowering Congress "[t]o regulate Commerce with foreign Nations, and among the several States.").
151. See, e.g, City of Phila. v. New Jersey, 437 U.S. 617, 624 (1978) ("[W]here simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected."). Another possible source of preemption arguably grounded in the Constitution is foreign affairs preemption. For a discussion and critique of foreign affairs preemption,
152. see generally Judith Resnik, Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 EMORY L.J. 31, 74-78 (2007).
153. For discussion, see Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 HARV. L. REV. 1468, 1480-1485 (2007).
154. See, e.g., Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 328 (1977) (noting that the Commerce Clause, "'by its own force created an area of trade free from interference by the States'"
155. (quoting Freeman v. Hewitt, 329 U.S. 249, 252 (1946))).
156. See City of Phila., 437 U.S. at 620-621 & n.4.
157. The judiciary may also have a role in recognizing (or rejecting) assertions of either step of null preemption. See supra note 82 and accompanying text (discussing Machinists preemption).
158. For a description of the practice, see, for example, William Funk, Preemption by Federal Agency Action, in PREEMPTION CHOICE 214, 215-24 (William W. Buzbee ed., 2009);
159. Catherine M. Sharkey, Preemption by Preamble: Federal Agencies and the Federalization of Tort Law, 56 DEPAUL L. REV. 227, 229-42 (2007) [hereinafter Sharkey, Preemption by Preamble]. The Supreme Court has yet to resolve agency power to preempt.
160. See, e.g., Robert R.M. Verchick & Nina Mendelson, Preemption and Theories of Federalism, in PREEMPTION CHOICE, supra at 13, 27
161. (noting that the Court skirted the issue in Walters v. Wachovia Bank N.A., 559 U.S. 1 (2007)).
162. Commentators are divided over the question. Compare Nina A Mendelson, A Presumption Against Agency Preemption, 102 Nw. U. L. REV. 695, 708-25 (2008) (arguing that institutional competence and separation of powers weigh in favor of Congress making preemption choices, and so the standard presumption against preemption should apply with even greater force against agency preemption),
163. Thomas W. Merrill, Preemption and Institutional Choice, 102 Nw. U. L. REV. 727, 766-69 (2008) (contending that courts should uphold agency preemption only where Congress has delegated such authority),
164. Mark D. Rosen, Contextualizing Preemption, 102 Nw. U. L. REV. 781, 796-800 (2008) (emphasizing, despite its shortcomings, Congress's institutional advantages in making preemption decisions),
165. Verchick & Mendelson, supra, at 27 (taking a skeptical view of agency preemption), and Ernest A Young, Executive Preemption, 102 Nw. U. L. REV. 869 (2008) (advocating restricting the freedom of agencies to preempt unilaterally),
166. with Brian Galle & Mark Seidenfeld, Administrative Law's Federalism: Preemption, Delegation, and Agencies at the Edge of Federal Power, 57 DUKE L.J. 1933, 1990 (2008) (arguing that agencies may be better positioned than Congress to decide whether preemption of state law is appropriate),
167. Gillian E. Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023, 2069-72 (2008) (arguing that existing administrative law requirements may facilitate the inclusion of states' interests in administrative decisions),
168. Catherine M. Sharkey, Products Liability Preemp tion: An Institutional Approach, 76 GEO. WASH. L. REV. 449, 477-502 (2008) [hereinafter Sharkey, Products Liability Preemption] (arguing in favor of agency reference of preemption decisions, with judicial review to ensure proper administrative process),
169. and Catherine M. Sharkey, What Riegel Portends for FDA Preemption of State Law Products Liability Claims, 103 Nw. U. L. REV. 437, 441-46 (2009) [hereinafter Sharkey, What Riegel Portends] (same).
170. See generally William W. Buzbee, State Greenhouse Gas Regulation, Federal Climate Change Legislation, and the Preemption Sword, 1 SAN DIEGO J. CLIMATE & ENERGY L. 23 (2009) (arguing in favor of independent "Preemption Review Committee" that would render preemption decisions in problematic settings based on statutory criteria and record evidence).
171. One also might envision some forms of null preemption, such as Machinists preemption, as a hybrid resulting from a combination of congressional and judicial action.
172. See supra Part I A.
173. See supra notes 63-65 and accompanying text
174. See supra notes 66-69 and accompanying text
175. See supra note 43 and accompanying text
176. See supra note 42 and accompanying text.
177. Other examples of congressional null preemption can be found in federal preemption of banking laws, securities laws, and labor law. See supra Part I.B.
178. See supra note 44 and accompanying text.
179. See supra notes 63-70 and accompanying text.
180. See supra note 42 and accompanying text. The preemption of New York State's airline passenger "bill of rights" is another example of executive branch null preemption. See supra text accompanying notes 97-103.
181. See Natural Resources Def. Council, Inc. v. Costle, 568 F.2d 1369, 1380-1382 (D.C Cir. 1977) (emphasizing distinction between minimal permitting program and full-fledged exemption advanced by the EPA).
182. See Grayson P. Hanes & J. Randall Minchew, On Vested Rights to Land Use and Development, 46 WASH. & LEE L. REV. 373, 381 (1989) (noting that compliance with "certain specific and published ordinances and regulations" to obtain "ministerial approvals . . . is often expensive and time consuming").
183. See U.S. CONST, art VI, §2. As I discuss below, the dormant Commerce Clause b an avenue through which state law is preempted even without congressional or regulatory action. See infra text accompanying notes 152-153. For explication, and criticism, of existing preemption doctrine, see generally Caleb Nelson, Preemption, 86 VA. L. REV. 225, 290-303 (2000).
184. See Buzbee, supra note 2, at 147-148
185. It is possible for the federal government to leave intact state law requirements that are consistent with, and may enhance, existing federal standards. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 494-97 (1996) (holding that certain state common law actions were not preempted since they simply "provide [d] another reason for manufacturers to comply with identical existing 'requirements' under federal law" where federal statute only preempted state law that created requirements "'different from, or in addition to," federal requirements (quoting 21 U.S.C. § 360k(a) (2006)));
186. see also Bates v. Dow AgroSciences LLC, 544 U.S. 431, 447-48 (2005) (quoting Medtronic and holding to the same effect). On the importance of interaction between regulatory regimes and the common law where both coexist, see generally Thomas O. McGarity, The Regulation-Common Law Feedback Loop in Nonpreemptive Regimes, in PREEMPTION CHOICE, supra note 118, at 235. While null preemption is a type of unitary federal choice, a similar possibility of preserving consistent state regulatory law does not exist - no affirmative state regulation could be consistent with a federal choice not to regulate.
187. See Henry H. Drummonds, The Sister Sovereign States: Preemption and the Second Twentieth Century Revolution in the Law of the American Workplace, 62 FORDHAM L. REV. 469, 529-530 (1993).
188. Id.
189. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984) (citations omitted).
190. Id.
191. Some commentators assert that courts have interpreted some statutes to effect preemption even though the statutes do not include express preemption provisions and where the requirements of implied preemption would not be met. See, e.g., Drummonds, supra note 134, at 555-95 (describing how preemption under the Federal Arbitration Act and federal labor law as interpreted by the courts does not conform to the standard preemption jurisprudential model). In contrast, Professor Archibald Cox advanced the argument that state law preemption under the NLRA rests at least in part on congressional intent: An appreciation of the true character of the national labor policy expressed in the NLRA and LMRA indicates that in providing a legal framework for union organization, collective bargaining, and the conduct of labor disputes, Congress struck a balance of protection, prohibition, and laissez faire in respect to union organization, collective bargaining, and labor disputes that would be upset if a state could also enforce statutes or rules of decision resting upon its views concerning accommodation of the same interests. Archibald Cox, Labor Law Preemption Revisited, 85 HARV. L. REV. 1337, 1352 (1972).
192. Viewed another way, one might say that field preemption provides local examples of what we might call "quasi-null preemption" within the global context of nonnull preemption: while what Congress and the courts view as "occupying the field" cannot technically be null preemption, it still resembles null preemption with respect to the narrow point of which a state wishes to regulate but cannot. These different possible ways to conceive of how preemption arises highlight the importance of "framing" for identifying and distinguishing settings of null preemption. (I am grateful to Glynn Lunney for emphasizing to me the potential import of framing in this context) As Professor Daryl Levinson has explained, legal analysis greatly turns upon how the relevant transactionisframed.
193. See Daryl J. Levinson, Framing Transactions in Constitutional Law, 111 YALE L.J. 1311, 1332-75 (2002) (discussing the importance of how transactions are framed for constitutional analysis). While private law transactions tend to be readily ascertainable and relatively free from dispute, the same cannot be said of transactions in the public law setting. Professor Levinson has argued that the relevant frame for constitutional purposes should derive from the purpose of the constitutional provision at issue.
194. See id. at 1375-90. A similar approach is appropriately used to identify settings of null preemption. First, an instrumental approach is true to the concern of null preemption of regulatory voids. Second, such an approach accords with the Supreme Court's analysis in cases that raise issues tantamount to null preemption.
195. In Sprietsma v. Mercury Marine, 537 U.S. 51 (2002), the Court considered preemption of state law under the Federal Boat Safety Act, 46 U.S.C. §§4301-4311 (2006). There, Congress authorized the Coast Guard to issue boat safety regulations and also directed that, to the extent that the Coast Guard had in fact issued regulations, state law "that is not identical to a regulation" be preempted. Id. §4306. (The Act otherwise directed, under a saving clause, that any state law be preserved. See id. §4311 (g).) The issue in Sprietsma was whether state law governing propeller guards was preempted. Sprietsma, 537 U.S. at 54. The Coast Guard had considered promulgating regulations on the subject, but ultimately decided not to. Id. at 60-62. The respondents asked the Court to hold that the totality of Coast Guard safety regulations, combined with the Guard's decision not to regulate propeller guards, should preempt state law on the subject Id. at 64. Rejecting this argument, the Court reasoned that state law was not preempted by the Coast Guard's decision not to regulate propeller guards.
196. See id. at 64-68. The Court also reasoned that the Coast Guard's decision to promulgate numerous other regulations related to boat safety did not preempt state law on propeller guards since the Coast Guard had left unregulated the separate risk posed by unprotected propellers.
197. See id. at 68-70.
198. The instrumental approach is also consistent with the Court's decision in Goldstein v. California, 412 U.S. 546 (1973), that states could enforce laws criminalizing the piracy of sound recordings, even though Congress had affirmatively declined to afford copyright protection to sound recordings.
199. Id. at 571.
200. The Court rejected the argument that the then-extant copyright statute "occupied the field" of all writings of which Congress wished to allow protection, and accordingly that any state laws purporting to confer such protection should be preempted.
201. See id. at 563-70.
202. (I am grateful to Glynn Lunney for this reference.) The proper frame helps greatly to clarify where null preemption arises and where it does not For example, the government might be said to have occupied the field of air pollutant regulation under the extant CAA If that is so, then, to the extent that states were preempted from regulating tailpipe greenhouse-gas emissions, it would be due to field preemption, not null preemption. Put another way, do greenhouse-gas emissions constitute their own field (that Congress has to date not chosen to regulate), or is the appropriate frame the field of all air pollutants, which Congress has occupied through the extant CAA? Because null preemption is properly concerned with regulatory voids mandated by the federal government, the appropriate frame must be whether there is a regulatory risk that remains unaddressed. On this understanding, greenhouse gases pose a risk independent from the risk posed by other air pollutants. Accordingly, the extant CAA should not be seen to occupy the field of air pollution regulation. (An exception might arise to the extent that regulation of pollutants might be said to have, as a byproduct, an effect as well on greenhouse-gas emissions, such that regulation of greenhouse gases might be said to be duplicative.
203. Cf. Jonathan Remy Nash, Too Much Market? Conflict Between Tradable Pollution Allowances and the "Polluter Pays" Principle, 24 HARV. ENVTL. L. REV. 465, 511-15 (2000) (describing phenomenon of "indirect regulation," where regulation of one pollutant has a regulatory effect on emissions of another pollutant).) This conclusion is entirely consistent with the arguments and decision in Massachusetts. Though the case did not directly raise a question of state law preemption, the government did not argue that the CAA should be construed to be the congressional final word on air pollution regulation, and, because the Act does not directly regulate greenhouse gases, the EPA lacked power to regulate greenhouse gases. Rather, it argued that greenhouse-gas regulation was inimical to the CAA This view was shared by Justice Scalia in dissent
204. See Massachusetts v. EPA, 549 U.S. 497, 551-52 (2007) (Scalia, J., dissenting). Indeed, the government pointed to Congress's limited foray into greenhouse-gas regulation in other statutes, and its consideration and ultimately rejection of larger statutory treatments of the problem.
205. See id. at 507-08, 529-30 (majority opinion).
206. Consider next whether null preemption arises where the federal government offers a law or regulation, while preempting state law that it believes are duplicative of federal law. Viewed instrumentally, the answer depends on the eye of the beholder. To the extent that the federal government honestly believes state law to be duplicative, the regulatory risk at issue is addressed and there is no regulatory void. On the other hand, to the extent that the state takes issue with that assessment - or, indeed, the federal government has disingenuously used a claim of duplication to make preemption more palatable - then there is null preemption. In the next section, I discuss "duplicative-regulation null preemption" as part of the taxonomy of settings of null preemption. See infra text accompanying notes 170-75. A final question is whether null preemption necessarily arises where federal law protects against a particular regulatory risk but fails to do so by recognizing a private right of action. The instrumental approach directs that this question be answered in the negative. To the extent that existing federal law addresses the regulatory risk, then there is no regulatory void. By the same token, however, there may be settings where private rights of action - such as state law tort claims - do address separate regulatory risks.
207. See Sprietsma, 537 U.S. at 65 ("[A] Coast Guard decision not to regulate a particular aspect of boating safety is fully consistent with an intent to preserve state regulatory authority ....");
208. Barry Meier, Life, Death and Liability, N.Y. TIMES, Feb. 20, 2009, at B1
209. (discussing congressional momentum to overturn Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996), and restore individuals' common law rights to sue defective medical-device makers). In such settings, the preemption of such causes of action without any offsetting federal regulation (whether in the form of a federal private right of action or otherwise) might constitute null preemption.
210. See supra text accompanying notes 81-82.
211. 128 S. Ct. 2408 (2008).
212. Id. at 2417
213. (quoting Bldg. & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc., 507 U.S. 218, 226 (1993)).
214. Id. at 2418 (citation omitted).
215. See supra text accompanying notes 81-82.
216. See supra note 137.
217. 330 U.S. 767 (1947).
218. Id. at 774.
219. See id. at 774-777
220. 537 U.S. 51 (2002).
221. Id. at 64.
222. Id. at 67.
223. See id;
224. see also Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm'n, 461 U.S. 375, 384 (1983)
225. Finding that, although "a federal decision to forgo regulation in a given area may imply an authoritative federal determination that the area is best left unregulated, and in that event would have as much pre-emptive force as a decbion to regulate [,] . . . nothing in the language, history, or policy of the [federal statute at issue] suggested] such a conclusion" (citations omitted).
226. See supra text accompanying notes 113-115
227. For recent statements, see Wyeth v. Levine, 129 S. Ct 1187, 1194-95 (2009);
228. Altria Group, Inc. v. Good, 129 S. Ct 538, 543 (2008);
229. Bates v. Dow AgroSciences LLC, 544 U.S. 431, 449 (2005);
230. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
231. Legal scholars have been less convinced of the continuing vitality of the presumption.
232. See, e.g., Mary J. Davb, The New' Presumption Against Preemption, 61 HASTINGS LJ. (forthcoming 2010) (arguing that in practice, the Supreme Court applies presumption against preemption with varying rigidity, depending upon the setting);
233. Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82 N.Y.U. L. REV. 1, 61 (2007) ("The Court has vacillated about whether to adopt a clear statement rule against preemption.").
234. For additional examples, see Alexandra B. Klass, State Innovation and Preemption: Lessons from State Climate Change Efforts, 41 LOY. LA. L. REV. 1653, 1658-72 (2008).
235. For a critique of the "empty formalism" of current preemption doctrine, including the presumption against preemption,
236. see Thomas W. Merrill, Preemption in Environmental Law: Formalism, Federalism Theory, and Default Rules, in FEDERAL PREEMPTION, supra note 12, at 166, 166-172.
237. For a normative argument that the presumption be applied only in particular circumstances, see Stephen F. Williams, Preemption: First Principles, 103 Nw. U. L. REV. 323, 327-31 (2009).
238. Here, I refer to "express preemption" expansively to include state law preemption as interpreted by the Court under a preemption standard that is different from the traditional standard. See supra note 137. Along similar lines, Professor Glicksman argues that courts ought to be reticent to find preemption by inaction absent express congressional preemption of state law.
239. See Robert L. Glicksman, Federal Preemption by Inaction, in PREEMPTION CHOICE, supra note 118, at 167, 178-183
240. See supra notes 81-82 and accompanying text. Another possible example of intentional null preemption is found in the Commodity Futures Modernization Act of 2000 (CFMA), Pub. L. No.106-554, 114 Stat. 2763 app. E (codified as amended in scattered sections of 7, 8, 11, 12, and 15 U.S.C). There, Congress precluded the Commodities Futures Trading Commission and the SEC from regulating individually negotiated swap agreements, and also prohibited states from regulated certain "covered swap agreements" under gaming and bucket shop laws. See
241. See William K Sjostrom, Jr., The AIG Bailout, 66 WASH. & LEE L. REV. 943, 983-89 (2009)
242. (noting that there was an open question as to whether states could use
243. It is possible, of course, for Congress to preempt state law in an area and dien to consider subsequent regulatory legislation at various points in the future that might reduce the scope of the null preemption. Indeed, Congress has considered over the years, though never enacted, federal legislation that would have created a federal airline passenger bill of rights. See, e.g., Bailey, supra note 98 (noting, in the wake of the JetBlue incident in New York in 2008, that Senator Boxer was "planning" to sponsor federal legislation); Sharkey, supra note 98 (describing how an American Airlines epbode in Dallas-Fort Worth had motivated a passenger to push for a federal air passenger bill of rights, and also noting episodes from earlier years that had prompted other, ultimately doomed efforts to enact legislation). Still, the notion of Congress enacting legislation with perhaps some legislators having a vague intent to revisit the area in the future differs from an executive branch actor setting priorities and developing a regulatory agenda. It is for this reason that I conclude that regulatory-delay null preemption is properly considered a subset of executive branch null preemption.
244. See supra text accompanying notes 99-103.
245. See supra text accompanying notes 97-103.
246. See supra note 103 (noting that Department of Transportation has only very recendy taken steps to regulate in the area).
247. Professor Christopher Schroeder explains: The ossification of federal rule making makes federal agencies very slowmoving beasts. They are reluctant to revise standards or programs in light of new knowledge and changed circumstances due to the cumbersome, laborintensive nature of the enterprise, fraught as it is with the hazards of hardlook judicial review. None of the federal agencies that have issued statements of preemption in regulatory preambles, for instance, has been an active rule maker in recent years, preferring instead to engage in negotiations with the regulated community to persuade "voluntary" recalls or modifications of products or drug labels. In comparison, states and localities are relatively more nimble.
248. Christopher H. Schroeder, Supreme Court Preemption Doctrine, in PREEMPTION CHOICE, supra note 118, at 119, 142.
249. Cf. supra text accompanying notes 129-130 (noting the difference between minimal regulation and exemption from regulation).
250. See supra text accompanying notes 97-103.
251. See supra notes 5, 52-59 and accompanying text
252. See supra notes 57-58 and accompanying text
253. See supra notes 104-107 and accompanying text
254. See supra notes 89-92 and accompanying text
255. See supra notes 123-125 and accompanying text
256. See supra note 41 and accompanying text
257. See supra notes 51-56 and accompanying text.
258. See supra notes 83-96 and accompanying text.
259. See supra notes 75-79 and accompanying text.
260. See supra note 92 and accompanying text
261. See supra notes 93-96 and accompanying text
262. See, e.g., Karmel, supra note 95, at 107-16; Perino, supra note 92, at 318-329
263. See, e.g., Perino, supra note 92, at 331 ("The allocations of governmental authority made in the NSMIA translate well to allocating authority and control over the creation and administration of private causes of action. . . . [I]t makes little sense to preserve state antifraud causes of action for issuers whose securities trade on national markets.").
264. See, e.g., Buzbee, supra note 4, at 1599-1613 (setting out criteria guiding normatively desirable federal preemption).
265. There may be other normative bases upon which to decide whether to regulate. I do not address them in this Article.
266. R > 0. Cost-benefit analysis also calls for choosing among regulatory options the one that provides the greatest surplus of benefits over costs. I assume, again for ease of exposition, that any regulatory program under consideration already meets this criterion.
267. It is hardly beyond the pale to include environmental groups within the broad universe of interest groups who may seek to sway government action under public choice and political economy theories. Still, one would not expect this particular circumstance to be commonplace.
268. See Todd J. Zywicki, Environmental Externalities and Political Externalities: The Political Economy of Environmental Regulation and Reform, 73 TUL. L. REV. 845, 874-888 (1999).
269. Compare C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 402 (1994)
270. (O'Connor, J., concurring) (noting the legal distinction between on the one hand "[a] facially nondiscriminatory regulation supported by a legitimate state interest which incidentally burdens interstate commerce," which "is constitutional unless the burden on interstate trade is clearly excessive in relation to the local benefits," and on the other hand "a regulation [that] affirmatively or clearly discriminates against interstate commerce on its face or in practical effect," which "violates the Constitution unless the discrimination is demonstrably justified by a valid factor unrelated to protectionism" (citations omitted) (internal quotation marks omitted)), with id. ("Of course, there is no clear line separating these categories.").
271. For discussion in the preemption context, see Verchick & Mendelson, supra note 118, at 16.
272. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 544 (1954)
273. ("National action has . . . always been regarded as exceptional in our polity, an intrusion to be justified by some necessity, the special rather than the ordinary case."). Some may doubt the value of having a federal system (at least for purposes of governing in certain areas), and on this basis may discount the benefits of federalbm. For purposes of the calculus here, I accept as exogenous the choice to maintain a federal system, and therefore take federalism benefits as a given.
274. Cf. Jonathan Remy Nash, The Uneasy Case for Transjurisdictional Adjudication, 94 VA. L. REV. 1869, 1916-19 (2008)
275. (noting that the federal structure of the Constitution suggests that the federalism benefits of having state courts resolve some cases and issues be taken as a given);
276. Ann Woolhandler & Michael G. Collins, Judicial Federalism and the Administrative States, 87 CAL. L. REV. 613, 655 (1999)
277. ("Even though some critics have expressed doubts about the continued need for certain categories of federal jurisdiction- particularly diversity jurisdiction- they remain a given whose provbion and presumed purposes the judicial branch is obliged to honor." (footnote omitted)).
278. See Neil Gorsuch & Michael Guzman, Will the Gentlemen Please Yield? A Defense of the Constitutionality of State-Imposed Term Limitations, 20 HOFSTRA L. REV. 341, 351 (1991)
279. ("[T]he Framers adopted a comprombe, placing primary authority with states, but empowering the Congress to override undesirable regulations.").
280. Consider, for example, the Commerce Clause, and especially, as interpreted by the courts, the dormant Commerce Clause. See supra notes 112-116 and accompanying text
281. Some, perhaps most notably Herbert Wechsler, have argued that the constitutional structure itself protects the interests of states by distributing legblative power and the power to select the President at least in part on the basis of state boundaries. See Wechsler, supra note 182, at 546-58;
282. see also Bradford R. Clark, Constitutional Compromise and the Supremacy Clause, 83 NOTRE DAME L. REV. 1421, 1431-35 (2008)
283. (making a similar argument based on the debates at the Constitutional Convention). On this account, one can be more sanguine that preemption decisions made by the political branches are appropriate since the interests of the states will have been taken into account See Wechsler, supra note 182, at 558-60. Whatever the merit of this argument, it is weaker in the context of null preemption, as opposed to preemption of state law in favor of a national standard. The interests of states and national government are at least somewhat aligned - aligned, that is, at least in terms of whedier regulation in some form is appropriate - where national action is being weighed against individual state action (at least to the extent that many states are undertaking, or would like to undertake, such action). In contrast, null preemption disempowers states and the federal government from regulating where at least many states believe some regulatory action is appropriate. Indeed, though it is doubtful that he contemplated the possibility of null preemption, Professor Wechsler discussed the primacy of state governance as against "[n]ational action," id. at 544, not as against the absence of any action at all.
284. See, e.g., Daniel J. Meltzer, State Sovereign Immunity: Five Authors in Search of a Theory, 75 NOTRE DAME L. REV. 1011, 1040-41 (2000)
285. ("[B]road notions of state dignity are difficult to square with . . . the power of [the federal] sovereign to strip states of their regulatory authority via federal preemption."). For critical discussion of the relationship between state dignity and state sovereign immunity jurisprudence,
286. see Peter J. Smith, States as Nations: Dignity in Cross-Doctrinal Perspective, 89 VA. L. REV. 1, 51-76 (2003).
287. Cf. Cuomo v. Clearing House Ass'n, 129 S. Ct 2710, 2720 (2009) (noting that "die incursion that the [federal] regulation makes upon traditional state powers [should not] be minimized").
288. See Massachusetts v. EPA, 549 U.S. 497, 519 (2007)
289. (noting that, "[w]hen a State enters the Union, it surrenders certain prerogatives"). Other powers are retained by the states, while yet other powers are potentially exercisable by either the federal government or the states. A competing account sees power as emanating directly from the people, with the Constitution allocating that power among the federal government, state governments, and the people.
290. See McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 403-04 (1819);
291. THE FEDERALIST NO. 51 (James Madison).
292. Even on this understanding, one might think that, to the extent that the federal government alters the initial constitutional allocation by preempting state law, the states might expect the federal government to regulate in their stead. Cf. McCulloch, 17 U.S. (4 Wheat) at 404-05 ("The government of the Union . . . is, emphatically and truly, a government of the people. . . . Its powers are granted by them, and are to be exercbed directly on them, and for their benefit"). People then have a right to expect that, to the extent that the federal government precludes the state government from exercbing a power that they (die people) granted to the state government, the federal government will affirmatively exercbe that power in an appropriate fashion.
293. See Massachusetts, 549 U.S. at 519.
294. See id. ("When a State enters the Union, it surrenders certain sovereign prerogatives. . . . These sovereign prerogatives are now lodged in the Federal Government . . . .");
295. cf. Anita Bernstein, Implied Reverse Preemption, 74 BROOK. L. REV. 669, 670-71 (2009)
296. (suggesting that judicial holdings of implied preemption be subject to reversal based upon subsequent congressional deregulation of an area). Not all political structures that feature hierarchical layers of governments make similar assumptions about the allocation of powers. Only for those that do will the analysis here apply. See infra text accompanying notes 275-278
297. Cf. Williams, supra note 153, at 333 (admitting that application of the presumption against preemption only in some circumstances would alter the balance of federal and state power, but arguing that it would do so in order to ameliorate "die risk that state action may impose costs on the welfare of citizens of other states"). Here, the argument is that null preemption impairs the citizens of states that are unable to regulate. It bears emphasb that greater regulation need not be the result State regulation may function to enhance, rather than restrict, people's rights. See supra note 12.
298. See Robert A Schapiro, From Dualism to Polyphony, in PREEMPTION CHOICE, supra note 118, at 33, 43-44 (discussing the values of a new conception of the relationship of the states and the federal government).
299. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., absenting);
300. see Schapiro, supra note 192, at 43. It is on this basis that commentators faced with a related but distinct question - whether, where federal preemption of state law is justified, it should take the form of setting a federal regulatory floor or a unitary federal choice - argue that the presumption should be the setting of a federal floor, because that option preserves greater state regulatory authority. See, e.g., Buzbee, supra note 4, at 1574, 1603-13. Professor Buzbee has set out several criteria that should guide us in determining whether federal preemption is normatively desirable (and, if so, whether that preemption should take the form of floor or ceiling preemption). Put succinctly, he argues that preemption is more likely to be justified where (1) the regulatory object is a product, as opposed to a location-specific risk; (2) there is the need for large-scale research and thus benefits to be gained from research pooling, as opposed to the need for context-intensive research; (3) the scale of the prob- lem is national, as opposed to local; and (4) the problem rabes the potential for overregulation by virtue of multiple responses, as opposed to the potential for governments to be overly burdened by inertia and/or capture in responding to the problem (all of which argues in favor of multiple regulatory pathways). See id. at 1612 fig.l. Reflection confirms that these considerations do not (standing alone, at least) help us to resolve the normative question of null preemption. Professor Buzbee's criteria were developed, and seem most applicable, where the question of whether to regulate has already been answered affirmatively, and the only question remaining is which level of government is better suited to undertake the regulatory role. In settings in which null preemption is on the table, by contrast, the federal government is proposing not only to preempt all state law, but also to provide no regulation itself.
301. There are different methods of policy diffusion, some of which are preferable to others. See Charles R. Shipan & Craig Volden, The Mechanisms of Policy Diffusion, 52 AM. J. POL. SCI. 840, 841-844 (2008)
302. (distinguishing among learning, competition, imitation, and coercion as different methods of policy diffusion of varying valence). In particular settings, it may be that undesirable forms of policy diffusion - such as competition - may dominate, in which case the losses from preemption may be lower. Further, some policy diffusion instruments require longer time horizons; for them, an extended period of experimentation free of preemption may be required.
303. These costs may be substantial, but also hard to predict, given the often pathdependent nature of the evolution of law.
304. See Schapiro, supra note 192, at 43-44 (discussing how different regulators can learn from each other). Professors Galle and Seidenfeld, Metzger, and Sharkey argue that administrative law requirements may preserve this interjurisdictional dialogue, albeit in the context of federal rulemaking. See infra notes 224-226 and accompanying text
305. See, e.g., Jason Mazzone, When Courts Speak: Social Capital and Law's Expressive Function, 49 SYRACUSE L. REV. 1039, 1039-1041 (1999) (asserting that "[b]y performing an expressive function, courts often serve as a unique site for public discourse").
306. See Schapiro, supra note 192, at 44 (discussing how an alternative set of regulators can provide an alternative avenue for relief).
307. See, e.g., Jonathan Remy Nash, Environmental Superliens and the Problem of Mortgage-Backed Securitization, 59 WASH. & LEE L. REV. 127, 178-79 (2002) (discussing an example of such an externality);
308. Jonathan Remy Nash, The Illusion of Devolution in Environmental Law, 38 URB. LAW. 1003, 1005-06 (2006) [hereinafter Nash, The Illusion of Devolution].
309. See generally STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE 59-61 (1993) (calling for creation of health and environmental administrative overseer that would deal with risk regulation uniformly and rationally);
310. James T. Hamilton & W. Kip Vbcusi, The Magnitude and Policy Implications of Health Risks from Hazardous Waste Sites, in ANALYZING SUPERFUND 55, 76-80 (Richard L. Revesz & Richard B. Stewart eds., 1995) (crit- icizing risk assessment under CERCLA statute as sometimes too stringent, in part as response to public perceptions of risks of hazardous waste sites);
311. Cass R. Sunstein, The Laws of Fear, 115 HARV. L. REV. 1119, 1163-68 (2002)
312. (reviewing PAUL SLOVIC, THE PERCEPTION OF RISK (2000)) (using Slovic's empirical research on how people and experts think about risk to craft a policy analysb).
313. For discussion, see, for example, Howard F. Chang, Risk Regulation, Endogenous Public Concerns, and the Hormones Dispute: Nothing to Fear but Fear Itself?, 77 S. CAL. L. REV. 743, 761 (2004) (identifying as especially problematic the scenario where industry seeks to exploit and expand public fears in order to obtain beneficial regulatory regime);
314. Douglas A Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 HARV. L. REV. 526, 579-80 (2004) (arguing in favor of a role for consumer preferences in developing regulatory policy);
315. Cass R. Sunstein, Probability Neglect: Emotions, Worst Cases, and Law, 112 YALE L.J. 61, 94-105 (2002) (explaining that individuals often fall prey to both over- and underestimating probabilities, and that it is undesirable, and often illegal, for adminbtrative actors to act based upon such reactions).
316. See N.Y. PUB. HEALTH LAW §2112 (McKinney Supp. 2009).
317. The Centers for Disease Control indicates that such vaccines are "safe" for pregnant women. See Ctrs. for Disease Control & Prevention, Q&A: Thimerosal in Seasonal Influenza Vaccines, http://www.cdc.gov/Flu/about/qa/thi-merosal.htm (last visited Jan. 28, 2010)
318. (answering "yes" to the question, "Is it safe for pregnant women to receive an influenza vaccine that contains thimerosal [a mercurybased preservative]?" and noting that "the benefits of influenza vaccine with reduced or standard thimerosal content outweighs the theoretical risk, if any, of thimerosal"). Another provision of the law, captioned "Statement of legislative findings and intent," makes clear that the legislature acted in response not to actual risk, but rather to public concern and fear: "It is the intent of the legislature to minimize public fear and to increase public confidence in the safety of New York's vaccine supply by explicidy limiting the mercury content of vaccines where substitutes are available."
319. 2005 N.Y. Laws 3379, 3379.
320. See also Chang, supra note 201, at 750-758 (discussing this question in the context of the European Union's ban on the import of beef treated with growth hormones and the United States WTO challenge of the ban).
321. In Natural Res. Def. Council, Inc. v. EPA, 16 F.3d 1395 (4th Cir. 1993),
322. the federal government deferred to state reliance on scientific studies that, contrary to the then-current official federal position, allowed for less restrictive regulation. The case concerned the choice by states, subject to EPA approval, of safe leveb of dioxin in water bodies. Id. at 1398-99. Though the EPA had officially endorsed certain scientific studies, Maryland and Virginia chose to rely on scientific studies that found greater leveb of dioxin were acceptable. Interestingly, the EPA chose to approve of Maryland and Virginia's action, leaving it to private litigants to rabe a challenge. Id. In the end, the United States Court of Appeals for the Fourth Circuit ruled it proper to defer to the EPA's decbion. Id. at 1402-1406
323. For discussion, see Cass R. Sunstein, Cf Montreal and Kyoto: A Tale of Two Protocols, 31 HARV. ENVTL. L. REV. 1, 42-55, 58-60 (2007);
324. Cass R. Sunstein, The World vs. The United States and China? The Complex Climate Change Incentives of the Leading Greenhouse Gas Emitters, 55 UClA L. REV. 1675, 1691, 1694-95 (2008) [hereinafter Sunstein, Complex Climate Change Incentives].
325. For an argument that the Supreme Court has recendy - including in the Massachusetb v. EPA case - come to doubt adminbtrative agencies' assertions of alleged expertise because of increased politicization, see Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 SUP. CT. REV. 51, 64-92. Professors Freeman and Vermeule's argument casts even more normative doubt on administrative assertions of null preemption.
326. See Nash, supra note 16, at 498 ("The precautionary principle is a normative principle of environmental law.").
327. See id.
328. Cf. Cass R. Sunstein, Irreversible and Catastrophic: Global Warming Terrorism, and Other Problems, 23 PACE ENVTL. L. REV. 3, 3-4 (2005) (discussing how the United States varies its adherence to the precautionary principle depending upon context);
329. Cass R. Sunstein, On the Divergent American Reactions to Terrorism and Climate Change, 107 COLUM. L. REV. 503, 515-16 (2007) (same);
330. Jonathan B. Wiener, Whose Precaution After All? A Comment on the Comparison and Evolution of Risk Regulatory Systems, 13 DUKE J. COMP. & INT'L L. 207, 225-43 (2003) (comparing evaluations of the level of risk posed by certain policy problems in the United States and Europe).
331. See Nash, supra note 16, at 500-501 (discussing varying interpretations of the principle).
332. Cf. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 427 (2003) ("California seeks to use an iron fist where the President has consistently chosen kid gloves.").
333. Massachusetts v. EPA, 549 U.S. 497, 513-514 (2007) ("According to EPA, unilateral EPA regulation of motor vehicle greenhouse gas emissions might also hamper the President's ability to persuade key developing countries to reduce greenhouse gas emissions.").
334. See Sunstein, Complex Climate Change Incentives, supra note 204, at 1694-1695 (describing and analyzing California's willingness to regulate greenhouse-gas emissions even in the absence of commitment that other countries would do the same).
335. See Douglas A Kysar & Bernadette A Meyler, Like a Nation State, 55 UCLA L. REV. 1621, 1628-37 (2008) (characterizing certain California public policy initiatives as those more typical of a nation state than of a state in a federal union);
336. id. at 1637-51 (arguing that the "bargaining chip" justification for foreign affairs preemption has held sway in particular circumstances); Judith Resnik, supra note 113, at 74-78 (arguing that foreign affairs preemption lacks a clear constitutional basis, and that the rise of translocal networks argues against federal preemption of state and local initiatives that may affect foreign relations);
337. Note, Foreign Affairs Preemption and State Regulation of Greenhouse Gas Emissions, 119 HARV. L. REV. 1877, 1881-94 (2006)
338. (rejecting notion of foreign affairs preemption on "bargaining chips" grounds). For discussion of the understanding of states as nations as the basis for state sovereign immunity jurisprudence, see Smith, supra note 186, at 28-50.
339. See supra Part U.C.
340. This analysb does not consider the matter of institutional choice, to which I turn below. See infra Part III.B.
341. Cf. Schapiro, supra note 192, at 44 (discussing the benefits of redundant regulation).
342. See supra note 118 (offering varying perspectives on Congress's and agencies' respective capacities for preemption).
343. See Mendelson, supra note 118, at 708-25 (arguing that institutional competence and separation of powers weigh in favor of Congress making preemption choices, and so the standard presumption against preemption should apply with even greater force against agency preemption); Merrill, supra note 118, at 766-69 (contending that courts should uphold agency preemption only where Congress has delegated such authority); Rosen, supra note 118, at 796-800 (emphasizing, despite its shortcomings, Congress's institutional advantages in making preemption decisions); Verchick & Mendelson, supra note 118, at 27 (taking a skeptical view of agency pre- emption); Young, supra note 118 (advocating restricting the freedom of agencies to preempt unilaterally).
344. See Verchick & Mendelson, supra note 118, at 27.
345. See Galle & Seidenfeld, supra note 118, at 1990 (arguing that agencies may be better positioned than Congress to decide whether preemption of state law is appropriate); Metzger, supra note 118, at 2069-72 (arguing that existing administrative law requirements may facilitate the inclusion of states' interests in administrative decisions);
346. Sharkey, Products Liability Preemption, supra note 118, at 477-502
347. (arguing in favor of agency preference of preemption decisions, with judicial review to ensure proper administrative process); Sharkey, What Riegel Portends, supra note 118, at 441-446 (same).
348. See Galle & Seidenfeld, supra note 118, at 1971-1979;
349. Sharkey, Products Liability Preemption, supra note 118, at 484-490
350. See Catherine M. Sharkey, Federalism Accountability: "Agency- Forcing" Measures, 58 DUKE L.J. 2125, 2146-55 (2009);
351. Sharkey, Products Liability Preemption, supra note 118, at 484-490.
352. See Sharkey, Products Liability Preemption, supra note 118, at 491-502.
353. See Galle & Seidenfeld, supra note 118, at 1954-1961, 1973 ("Agency proceedings are more transparent than intuition might suggest");
354. Metzger, supra note 118, at 2074-76;
355. Sharkey, Preemption by Preamble, supra note 118, at 253-256
356. See, e.g., Galle & Seidenfeld, supra note 118, at 1954.
357. Cf. Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCIA L. REV. 1353, 1356 (2006)
358. ("[T]he U.S. Supreme Court has . . . attempted to capture the considerable benefits that flow from national regulatory uniformity and to protect an increasingly unified national . . . commercial market from the imposition of externalities by unfriendly state legislation.").
359. See, e.g., Nash, The Illusion of Devolution, supra note 199, at 1006-1007
360. See Zywicki, supra note 179, at 879-888 (elucidating environmental organizations' motives, including self-interest).
361. That industry generally seeks less regulation than do environmental organizations does not mean that industry as a whole always prefers no regulation. Indeed, commentators have explained that a subset of industry actors may welcome regulation that falls disproportionately on competitors.
362. See Nathaniel O. Keohane et al., The Choice of Regulatory Instruments in Environmental Policy, 22 HARV. ENVTL. L. REV. 313, 348-53 (1998);
363. Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 HARV. L. REV. 553, 572 (2001);
364. Zywicki, supra note 179, at 849 (noting that industry, or a subset thereof, sometimes gains by virtue of greater regulation). Still, the overarching point remains that as a whole industry will prefer less stringent regulation than will environmental organizations. Cf. Keohane et al., supra at 348 ("It would then follow that firms would oppose regulatory instruments that shift a greater cost burden onto industry.").
365. See Revesz, supra note 229, at 573 ("Firms in [industries with strong economies of scale] tend to prefer uniform federal regulation . . . .").
366. For example, one would expect an interest group that represents a large number of members diffuse throughout a country to be more powerful at the national, than the local or state, level. For discussion and critique of this proposition, see id. at 559-578
367. See, e.g., Nash, The Illusion of Devolution, supra note 199, at 1005.
368. See Keohane et al., supra note 229, at 351-53 (distinguishing between sectors of industry that face differential costs with respect to reactions to environmental regulation);
369. cf. Thomas W. Merrill, Explaining Market Mechanbms, 2000 U. III. L. REV. 275, 288
370. (noting likelihood of some degree of heterogeneity among industry actors, but concluding that industry will largely still coalesce around some issues, including opposition to pollution taxes).
371. See, e.g., Nash, The Illusion of Devolution, supra note 199, at 1011-14;
372. Revesz, supra note 229, at 573 (noting that, once a few states adopted automobile emissions standards in the 1960s, the automobile industry "decided to end its opposition to federal standards and became a supporter, provided that such standards preempted any more stringent state standards").
373. See, e.g., J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L. REV. 1499, 1504-16 (2007) (describing defensive preemption as when industry demands uniform federal regulation as a response to varied state enactments). But cf.
374. Jonathan H. Adler, When Is Two a Crowd? The Impact of Federal Action on State Environmental Regulation, 31 HARV. ENVTL. L. REV. 67, 98-106 (2007)
375. (arguing that federal environmental regulation may "crowd out" state environmental regulation, with the possible result of lower environmental regulatory standards).
376. Cf. Revesz, supra note 229, at 577 n.139 (noting that industry will seek federal preemption to avoid more stringent state regulation, but also observing that "[i]n contrast, in states that had not previously entered the regulatory fray, the resulting standards will be more stringent under federal regulation," thus implying that the result of lobbying for federal preemption will be affirmative federal regulation and not null preemption); id. at 557 (arguing that "environmental groups [should] come to understand that federal regulation is not a panacea," and that as a consequence, "they will be able to mitigate [an] increasingly negative feature [ ] of federal regulation: the threat of federal preemption of more stringent state standards" (footnote omitted)).
377. See supra text accompanying notes 186-191
378. See supra Part I.
379. See Issacharoff & Sharkey, supra note 226, at 1360-64;
380. Nash, The Illusion of Devolution, supra note 199, at 1004-1008
381. See supra note 234 and accompanying text
382. Faced with the prospect of regulation, existing industrial actors generally prefer regulations that "grandfather" exbting actors and impose more stringent regulation on new entrants. This distinction provides exbting actors with a beneficial barrier against entry. See Keohane et al., supra note 229, at 348-351 While it is possible that exbting national market actors may have a similar preference, it is also likely that the very breadth of resources required for an actor to compete nationally provides a national barrier against entry to existing national markets.
383. See supra Part I.
384. See supra Part II.C.1 (discussing intentional null preemption).
385. See supra Part II.C.4 (discussing duplicative-regulation null preemption).
386. See Sharkey, Preemption by Preamble, supra note 118, at 251-56.
387. But see John Schwartz, From New Administration, Signals of Broader Role for States, N.Y. TIMES, Jan. 30, 2009, at A16.
388. See supra text accompanying notes 72-73.
389. See supra Part HIA.
390. See supra notes 221-222 and accompanying text.
391. See supra note 226 and accompanying text
392. See Exec. Order No. 13,132, 3 C.F.R. 206 (2000), reprinted in 5 U.S.C. § 601 (2006). For discussion, see Funk, supra note 118, at 224-26; Verchick & Mendelson, supra note 118, at 26.
393. See Funk, supra note 118, at 226 ("During the latter years of tile Bush adminbtration, the status of the order can only be termed benign neglect."). For discussion,
394. see THOMAS O. MCGARITY, THE PREEMPTION WAR 242-45 (2009); Funk, supra note 118, at 226-30;
395. Nina Mendelson, Chevron and Preemption, 102 MICH. L. REV. 737, 783-91 (2004).
396. For discussion, see Sharkey, supra note 222 at 2174-76. An analogy may be found in congressional efforts to codify executive orders mandating the use of costbenefit analysis in promulgating regulations. The Risk Assessment and Cost-Benefit Act of 1995, H.R. 1022,104th Cong., was part of the "Contract with America"; it would have codified much of President Reagan's cost-benefit analysis executive order. It was narrowly defeated.
397. See Amy Sinden, The Economics of Endangered Species: Why Less Is More in the Economic Analysis of Critical Habitat Designations, 28 HARV. ENVTL. L. REV. 129, 136 n.21 (2004).
398. The Unfunded Mandates Reform Act of 1995, 2 U.S.C. §1532 (2006), however, did make it into law, and it calls for cost-benefit analysis for regulations that would introduce a federal mandate that would cost in excess of $100 million. Id. Its terms are not restricted to any particular subject matter.
399. See David M. Driesen, The Societal Cost of Environmental Regulation: Beyond Administrative Cost-Benefit Analysis, 24 ECOLOGY L.Q. 545, 555-58 (1997).
400. For discussion, see Thomas O. McGarity, The Expanded Debate over the Future of the Regulatory State, 63 U. CHI. L. REV. 1463,1476-79,1481 (1996);
401. Cass R. Sunstein, Congress, Constitutional Moments, and the Cost-Benefit State, 48 STAN. L. REV. 247, 289-96 (1996).
402. See supra text accompanying notes 162-163
403. For example, under the Clean Air and Clean Water Acts, Congress has seen fit to set out timetables by which the EPA is supposed to have issued certain regulations. See Clean Water Act 33 U.S.C. § 1313(c) (4) (2006) (setting deadlines for promulgation of CWA standards); Clean Air Act, 42 U.S.C. §§ 7491(a)(4), (b), 7492(c) (2006) (setting deadlines for promulgation of CAA standards). Private actors have sometimes successfully filed suit where the EPA has failed to meet a statutory deadline.
404. See, e.g, Natural Resources Def. Council, Inc. v. Train, 510 F.2d 692, 698 (D.C. Cir. 1974)
405. (compelling promulgation of effluent guidelines under the Clean Water Act);
406. Natural Resources Def. Council, Inc. v. EPA, 475 F.2d 968, 970-71 (D.C. Cir. 1973) (compelling production of transportation control plans under the Clean Air Act). For discussion and analysis of the topic,
407. see Jacob E. Gersen Sc Anne Joseph O'Connell, Deadlines in Administrative Law, 156 U. PA. L. REV. 923, 950-71 (2008).
408. The Hazardous and Solid Waste Amendments of 1984, Pub. L. No. 9&616, 98 Stat. 3221 (codified as amended in scattered sections of 42 U.S.C).
409. 42 U.S.C § 6924(d)(1).
410. Id.
411. The Federal Boat Safety Act, 46 U.S.C. §§4301-4311 (2006), addressed by the Court in Sprietsma, presents an example where (at least according to the Sprietsma Court) regulators acted so as to avoid an automatic null preemption mandated by congressional action in the absence of regulation.
412. Sprietsma v. Mercury Marine, 537 U.S. 51, 59 (2002).
413. Exemption to Preserve Certain State and Local Boat Safety Laws and Regulations, 36 Fed. Reg. 15,764, 15,764-65 (Aug. 11, 1971)).
414. The Court explained that this action "was based on the assumption that [the Act's preemption provbion] would [otherwise] preempt existing state regulation that 'is not identical to a regulation prescribed' under. . . the Act, even if no such federal regulation had been promulgated." Id.
415. Cf. Consolidated Appropriations Act of 2008, tit v, § 534, Pub. L. No.110-161, § 534, 121 Stat 1844, 2075 (2007)
416. (codified as amended at 6 U.S.CA. § 121 note (West Supp. 2009)) (enacting a savings clause that preserves state law governing chemical plant security unless it directly conflicts with federal law).
417. See supra text accompanying notes 186-191
418. See Massachusetts v. EPA, 549 U.S. 497, 518-521 (2007).
419. See id. at 522-523
420. See id. at 523-524
421. See Nash, supra note 16, at 510 n.79.
422. See id. at 524-525
423. See id. at 514 n.91.
424. See id. at 519.
425. This might slightly modify the presumption of Heckler v. Chaney, 470 U.S. 821 (1985), that agency inaction is generally not subject to judicial review.
426. See id. at 831. The modification would arise only in a small number of cases - to wit those brought by states in which null preemption can be shown.
427. See supra note 153 and accompanying text.
428. See Altria Group, Inc. v. Good, 129 S. Ct 538, 543 (2008);
429. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
430. Even if one does not accept that the general presumption against preemption broadly persists, see supra note 153, one still might advocate the presumption in settings of null preemption.
431. See supra note 186 and accompanying text
432. This assumes that the agency is not acting beyond congressional direction and not misrepresenting its intent to ultimately consider regulation. For discussion and analysis of the processes agencies follow in deciding whether or not to regulate,
433. see Mark Seidenfeld, Why Agencies Act: A Reassessment of the Ossification Critique of Judicial Review, 70 OHIO ST. L.J. 251, 258-267 (2009).
434. See supra notes 53-54 and accompanying text
435. Cf. Rosen, supra note 118, at 807-808 (suggesting that states as a matter of course be informed that a preemption judicial decision is in the offing, and that they and their agents be given an unconditional right to intervene to litigate such questions).
436. Leaving the option as to the form of relief to the government is not unheard of. In takings cases, for example, the government may, in a losing case, decide whether to pay just compensation or abandon the law that has been held to give rise to the taking (although partial compensation for the period during which the offending regulation was in effect may be due).
437. See, e.g., First English Evangelical Lutheran Church of Glendale v. County of LA., 482 U.S. 304, 321 (1987)
438. ("Once a court determines that a taking has occurred, the government retains the whole range of options already available - amendment of the regulation, withdrawal of the invalidated regulation, or exercbe of eminent domain."); id. at 319 (noting, with respect to takings that later prove to be temporary, that "[i]nvalidation of the ordinance or its successor ordinance after this period of time, though converting the taking into a temporary one, is not a sufficient remedy to meet the demands of the Just Compensation Clause" (internal quotation marks omitted));
439. Kenneth Salzberg, The Dog that Didn't Bark: Assessing Damages for Valid Regulatory Takings, 46 NAT. RES. J. 131, 144 (2006)
440. ("[C]ompensation is only granted when the regulatory body takes too long to undo the invalid regulation.");
441. see also Vicki Been, Lucas v. The Green Machine: Using the Takings Clause to Promote More Efficient Regulation?, in PROPERTY STORIES 221, 231-232 (Gerald Korngold & Andrew P. Morriss eds., 2004) (relating that the defendant in Lucas, South Carolina Coastal Council, "argued that if the court should find that a taking had occurred, it should remand the matter back to the Council to allow it to choose whether to issue a building permit or pay compensation" (internal quotation marks omitted)).
442. Cf. Motor Vehicle Mfrs. Ass'n v. EPA 627 F.2d 1095, 1107 (D.C. Cir. 1979) ("The plain meaning of the statute indicates that Congress intended to make the waiver power coextensive with the preemption provision.").
443. See supra note 43 and accompanying text
444. Note that such an interpretation is entirely consistent with the statute and with ordinary canons of statutory construction. Both the CAA's preemption provision ("No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part." 42 U.S.C. § 7543(a) (2006)), and regulatory empowerment provision ("The Administrator shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7521(a)(1) (2006)), use the term "emission," and there is every reason to afford the same meaning to the term in both contexts. Of course, one might argue that the regulatory empowerment provision, but not the preemption provision, subjects "emission" to modification by "of any air pollutant... which in his judgment cause [s], or contribute [s] to, air pollution which may reasonably be anticipated to endanger public health or welfare." Id. But that is why the relief suggested in the text is not a mandate that the federal government in fact regulate, but only a mandate that the EPA accept that it has the power to regulate. The EPA might still, consistent with that mandate, adhere to the position that it could decline to exercise that authority "in [its] judgment." Id. Presumably, though, the courts would constrain that possibility in line with the Court's actual holding in Massachusetts.
445. See generally JAN ERK, EXPLAINING FEDERALISM (2008) (comparing federalist structures of various countries).
446. See, e.g., Larry Cata Backer, Forging Federal Systems Within a Matrix of Contained Conflict: The Example of the European Union, 12 EMORY INT'L L. REV. 1331, 1335 (1998) ("Subsidiarity ultimately rejects the independent power of the networks of obligations to impose normative limits on the power of the nation, except to the extent the nation-state permits it").
447. See, e.g., 1 ROBERT H. FREILICH, GELFAND'S STATE AND LOCAL DEBT FINANCING § 1:1 (2009).
448. Cf. Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 956-57 (9th Cir. 2002)
449. (holding that while CERCLA explicitly preserved state law, CERCLA combined with state law occupied the field and thus preempted local law, and reasoning in part that local governments may regulate only to the extent authorized by state government). Null preemption analysis also does not apply to regulatory voids among the states, insofar as no state enjoys the power of precluding sister states from regulating. For analysis of preemption questions among the states,
450. see generally Allan Erbsen, Horizontal Federalbm, 93 MINN. L. REV. 493, 498-510 (2008).
451. See, e.g., Nathalie J. Chalifour, Making Federalism Work for Climate Change: Canada's Division of Powers over Carbon Taxes, 22 NAT'L. J. CONST. L. 119, 142-143 (2008).