The viability of interstate collaboration in the absence of federal climate change legislation

Duke Environmental Law and Policy Forum

Volumn 21, Issue 2, 2011, Pages 469-493

  Joseph Drapalski, III ^a,b  

^a DUKE UNIVERSITY   (United States)

^b AMHERST COLLEGE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

CLIMATE CHANGE; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY;

EID: 84856985046     PISSN: 10643958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (133)

1. The American Clean Energy and Security Act, H.R. 2454, 111th Cong. (2009). The Bill passed a vote by the Energy and Commerce Committee by a vote of 33 to 25 on May 21, 2009, then also passed out of the House of Representatives, where it was introduced, by a vote of 219to 212 on June 26, 2009.
2. JANET PEACE & ROBERT N. STAVINS, PEW CTR. FOR GLOBAL CLIMATE CHANGE, IN BRIEF: MEANINGFUL AND COST EFFECTIVE CLIMATE POLICY: THE CASE FOR CAP AND TRADE 2 (2010) (defining the cap as an upper-limit on emissions determined by the regulatory body overseeing the cap-and-trade regime, which then distributes a number of allowances equal to this cap) [hereinafter MEANINGFUL AND COST EFFECTIVE CLIMATE POLICY]. One of the most successful experiences of the United States with a cap-and-trade program was with its Acid Rain Program (ARP). The cap-and-trade portion of the ARP, which was enacted in 1995, has accomplished a more than 40% reduction in the United States' national sulfur dioxide emissions.
3. Sam Napolitano et al., The U.S. Acid Rain Program: Key Insights from the Design, Operation, and Assessment of a Cap-and-Trade Program, 20 ELECTRICITY J. 47, 47 (2007) (estimating that benefits from the ARP emission reductions are approximately $142 billion by 2010, with an annual compliance cost of $3.5 billion);
4. Jonathan B. Wiener & Barak D. Richman, Mechanism Choice, in RESEARCH HANDBOOK ON PUBLIC CHOICE AND PUBLIC LAW 363, 384-386 (Daniel A. Farber & Anne Joseph O'Connell eds., 2010) (finding that a capand-trade system is appealing because of its ability to minimize cost, allow for flexibility, adaptability, and burden distribution)
5. Jonathan B. Wiener, Property and Prices to Protect the Planet, 19 DUKE J. COMP. & INT'L L. 515, 519-21 (2009) (comparing the relative merits of a tax or cap-and-trade solution, finding that while a tax removes uncertainty about price, it does not definitively limit the amount of emissions, as opposed to a cap-and-trade system which leaves some uncertainty about price, but does explicitly cap emissions).
6. Support for this bill was far from unanimous among Democrats in the House of Representatives. In this era of partisan politics, Republican votes against the bill were to be expected, but it did not bode well for the bill's future that such a large contingent of Democratic lawmakers also voted against it. H.R.2454 - American Clean Energy And Security Act of 2009, OPENCONGRESS, http://www.opencongress.org/bill/111-h2454/actions_votes (last visited Aug. 31, 2011) (reporting that only eight Republicans voted for the bill, while 169 voted against it, and that 211 Democrats voted for the bill, while 43 voted against it).
7. While outside the purview of this paper, the potential panacea this bill promised for the Nation's climate concerns cannot be understood without brief mention of its energy designs. The Committee on Energy and Commerce listed the following as the bill's key provisions: a requirement that electric utilities and the government must meet 20% of their electricity demand through renewable energy by 2020; a multibillion dollar promise of investment in clean energy technology and efficiency; new energy-saving standards for buildings and appliances; a reduction in carbon emissions by 80% by 2050 over 2005 levels; and, despite these lofty, but achievable goals, a guarantee that costs to the average household will not exceed 50 cents per day. STAFF OF H. COMM. ON ENERGY AND COMMERCE, THE AMERICAN CLEAN ENERGY AND SECURITY ACT (H.R. 2454) (2009), available at http://democrats.energycommerce.house.gov/Press_111/20090724/hr2454_housesummary.pdf.
8. Due to the dedicated and extensive negotiations of Senators Kerry, Lieberman, and Graham, support for the bill was secured from a broad base of industry parties including Exelon, General Electric, Dow Chemical Company, Pacific Gas and Electric Company, and Dupont. Hearing on The American Clean Energy and Security Act of 2009 Before the Subcommittee on Energy and Environment of the House Committee on Energy and Commerce, 111th Cong. (2009) (testimony of David G. Hawkins, Dir. Climate Programs, Nat'l Res. Def. Council), available at http://www.nrdc.org/globalwarming/aces/files/glo_09042301.pdf (stating that ACES is aligned with the interests of the U.S. Climate Action Partnership, of which these companies are members); and closely fits its proposed ideal legislation)
9. John M. Broder, House Passes Bill to Address Threat of Climate Change, N.Y. TIMES, June 26, 2009, http://www.nytimes.com/2009/06/27/us/politics/27climate.html?_r=1&hp
10. Ryan Lizza, As the World Burns, NEW YORKER, Oct. 11, 2010, http://www.newyorker.com/reporting/2010/10/11/101011fa_fact_lizza (noting that support could be found from the oil companies and the Chamber of Commerce);
11. Tony Kreindler, New Momentum to Pass a Carbon Cap in 2009, CLIMATE 411 (May 21, 2009), http://blogs.edf.org/climate411/2009/05/21/new-momentum-topass-a-carbon-cap-in-2009/ (noting that the U.S. Climate Action Partnership).
12. The majority of environmental groups supported a bill such as the ACES, something for which they had fought for years, with some demanding even stauncher standards. Among those who supported the bill were the Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, Audubon Society, The Nature Conservancy, Alliance for Climate Protection, League of Conservation Voters, and Defenders of Wildlife.
13. See supra note 5.
14. While Democratic support seemed predominately a given, the Republicans were far from enthusiastic, and thus any support from their party was a huge boon for the bill. Kerry, Lieberman, and Graham counted on support from a handful of Republicans: Susan Collins, Olympia Snowe, Scott Brown, George LeMieux, and, of course, Lindsey Graham.
15. Although even this small Republican support was promising, if the vote on the bill from the House was any indicator, the Senators would need more votes than that to compensate for the number of Democrats who might oppose it.
16. President Obama's enthusiastic support for climate change legislation was a principal pillar of his campaign in 2008.
17. Press Release, President Barak Obama, President-Elect Obama Promises "New Chapter" on Climate Change (Nov. 18, 2008), available at http://change.gov/newsroom/entry/president_elect_obama_promises_new_chapter_on_climate_change/.
18. The White House did not follow through on its earlier promises to push climate change legislation through Congress, however, as it withheld its support from the Bill's sponsors and issued a damaging statement directly to Fox News labeling the bill a "gas tax."
19. Major Garrett, WH Opposes Higher Gas Taxes Floated by S.C. GOP Sen. Graham in Emerging Senate Energy Bill, FOX NEWS (Apr. 15, 2010), http://politics.blogs.foxnews.com/2010/04/15/wh-opposeshigher-gas-taxes-floated-sc-gop-sen-graham-emerging-senate-energy-bill.
20. The White House now entirely avoids the issue of cap-and-trade as a pariah and the Republican Party regularly uses the so called "cap-and-tax" as a symbol to disparage any climate action effort.
21. John M. Broder, Cap and Trade' Loses Its Standing as Energy Policy of Choice, N.Y. TIMES, Mar. 25, 2010, http://www.nytimes.com/2010/03/26/science/earth/26climate.html.
22. Any discussion of regional initiatives in this paper refers solely to their provisions regarding the implementation and administration of a cap-and-trade program. Although the initiatives also enact various other standards or mechanisms, they are outside the purview of this discussion.
23. See infra Part III.A.
24. Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Policies, 155 U. PA. L. REV. 1961, 1965-66 (2007) [hereinafter Think Globally] (arguing that subnational action is both inherently inadequate to reduce global greenhouse gas emissions and inefficient because of economic considerations (e.g., leakage and free-riding)). The problems which face a subnational response are many, and these difficulties are addressed and considered at length in Part III, infra.
25. The ten states which participate in RGGI are Connecticut, Delaware, Massachusetts, Maryland, Maine, New Hampshire, New Jersey, New York, Rhode Island, and Vermont. REG'L GREENHOUSE GAS INITIATIVE, FACT SHEET: THE REGIONAL GREENHOUSE GAS INITIATIVE, available at http://www.rggi.org/docs/RGGI_Fact_Sheet.pdf.
26. Massachusetts, Rhode Island, and Maryland which joined in 2007, were the only states not to join earlier with the drafting of the Model Rule. Regional Greenhouse Gas Initiative, PEW CTR. ON GLOBAL CLIMATE CHANGE, http://www.pewclimate.org/what_s_being_done/in_the_states/rggi (last visited Aug. 31, 2011).
27. REG'L GREENHOUSE GAS INITIATIVE, MEMORANDUM OF UNDERSTANDING (2005) [hereinafter RGGI MOU], available at http://rggi.org/docs/mou_final_12_20_05.pdf.
28. REG'L GREENHOUSE GAS INITIATIVE, OVERVIEW OF RGGI CO2 BUDGET TRADING PROGRAM (2007) [hereinafter RGGI OVERVIEW], available at http://rggi.org/docs/program_summary_10_07.pdf.
29. The RGGI cap is currently projected out to 2018. From 2009 to 2014, the cap is 188 million tons of CO2 emissions per year, which will decline by 2.5 percent a year beginning in 2015. This plan will realize a total reduction of 10 percent by 2018.
30. Id. at 2.
31. RGGI allowances are auctioned quarterly and may also be obtained through secondary markets, the Chicago Climate Futures Exchange (CCFE), or Green Exchange. RGGI uses the majority of the proceeds of these auctions to invest in consumer benefit programs such as energy efficiency, renewable energy, direct energy bill assistance, and other programs to reduce greenhouse gases.
32. Id. at 4-6.
33. A Partner to the WCI is a state or province which commits to participate fully in the program's cap-and-trade and reduction commitments. The seven states which are active partners in the WCI are Arizona, California, New Mexico, Montana, Oregon, Utah, and Washington. The four Canadian provinces are British Columbia, Manitoba, Ontario, and Quebec. WESTERN CLIMATE INITIATIVE, DETAILED DESIGN § 1.1 (2010) [hereinafter WCI DETAILED DESIGN], available at http://westernclimateinitiative.org/component/remository/general/program-design/Detailed-Design/.
34. In addition to the states and provinces which are partners to the WCI, there are also numerous members which have not made a full commitment and are thus considered observers. The observer states from the United States are Alaska, Colorado, Idaho, Kansas, Nevada, and Wyoming. The observer provinces from Canada are Nova Scotia, Saskatchewan, and Yukon. The observer states from Mexico are Baja California, Chihuahua, Coahuila, Nuevo Leon, Sonora, and Tamaulipas. THE WESTERN CLIMATE INITIATIVE, DESIGN FOR THE WCI REGIONAL PROGRAM: DESIGN SUMMARY 3 (2010) [hereinafter WCI DESIGN SUMMARY], available at http://westernclimateinitiative.org/component/remository/func-startdown/281/.
35. The cap-and-trade program will begin in 2012 regulating generators and industrial sources, then expand in 2015 to include providers of transportation fuels and residential and commercial fuels.
36. Id. at 8-10.
37. WCI DETAILED DESIGN, supra note 19, § 6
38. WCI DESIGN SUMMARY, supra note 20, at 18-19.
39. Compare WCI DESIGN SUMMARY, supra note 20, at 5 (embracing a broad scope that is "economy-wide" in order to achieve the "most cost-effective reduction opportunities")
40. with RGGI OVERVIEW, supra note 16, at 2 (mandating that RGGI will regulate only "fossil fuelfired electric generating units serving a generator of 25 MW or larger" and that any source which commenced operation prior to 2005 must use fossil fuels for WCI DETAILED DESIGN, supra note 19, § 3.2.3 (including under the umbrella of fuel suppliers any distributors of liquid transportation fuels, petroleum coke, natural gas, propane, heating fuel, or "any other fossil fuel sold or imported for consumption").
41. Id. § 5.2.4.2.
42. MIDWESTERN GREENHOUSE GAS REDUCTION ACCORD, FINAL RECOMMENDATIONS OF THE ADVISORY GROUP (2010) [hereinafter ACCORD RECOMMENDATIONS], available at http://www.seventhgenerationadvisors.org/images/stories/pdfs/accord_final_recommendations.pdf.
43. MIDWESTERN GREENHOUSE GAS REDUCTION ACCORD, FINAL MODEL RULE FOR THE MIDWESTERN GREENHOUSE GAS REDUCTION ACCORD (2010) [hereinafter ACCORD MODEL RULE], available at http://www.igreenlaw.com/storage/Final_Model_Rule1.pdf.
44. A state is a participating jurisdiction to the Midwestern Accord if it signed the Midwestern Accord's Memorandum of Understanding. Id. § XX-1.2(bh). On November 15, 2007, the governors of Iowa, Illinois, Kansas, Manitoba, Michigan, Minnesota, and Wisconsin signed a Memorandum of Understanding and entered the Midwestern Accord. ACCORD RECOMMENDATIONS, supra note 27, at 2.
45. The Midwestern Accord's Observer States are Indiana, Ohio, Ontario, and South Dakota. Midwest Greenhouse Gas Reduction Accord, PEW CTR. ON GLOBAL CLIMATE CHANGE, http://www.pewclimate.org/what_s_being_done/in_the_states/mggra (last visited Aug. 31, 2011) (listing the partner jurisdictions and observer states (which are not included in either the Model Rule or Advisory Recommendations documents)).
46. ACCORD MODEL RULE, supra note 28, § XX-1.1. Additionally, the cap-and-trade program is to begin on "January 1 of the first calendar year that is at least 12 months after the adoption of the model rule and execution of an implementing memorandum of understanding by the participating jurisdictions."
47. Id. § XX-1.4.
48. See, e.g., ACCORD RECOMMENDATIONS, supra note 27, at 3 (stating that all member states and Canadian provinces "strongly prefer the implementation of an effective cap-andtrade program at the federal level in both countries, rather than a regional program").
49. The Accord makes quite clear its intention to pursue linkage in its design principles which state that it must "[e]nable linkage to systems in other jurisdictions with similarly rigorous accounting in order to create economies of scale and to increase market efficiencies, diversity, and liquidity, while reducing costs."
50. Id. at 4.
51. Of all three initiatives, WCI is by far the most adamant on the subject of linkage. It includes both a detailed provision to allow for linkage in its Detailed Design
52. see WCI DETAILED DESIGN, supra note 19, § 9, and reiterates its "commitment to promote[] broad collaborative action to reduce GHG emissions" in its design summary. WCI DESIGN SUMMARY, supra note 20, at 22.
53. RGGI's Model Rule includes an elaborate provision to incorporate an offset mechanism into the program. REG'L GREENHOUSE GAS INITIATIVE, MODEL RULE 83-135 (2007), http://www.rggi.org/docs/Model%20Rule%20Revised%2012.31.08.pdf [hereinafter RGGI MODEL RULE]. Additionally, RGGI has reportedly even held informal talks with the EU ETS on the potential for linkage.
54. Saeed Shah, U.S. States Defy Bush Over Greenhouse Gases, THE INDEPENDENT (U.K.), Nov. 12, 2004, at 30.
55. Think Globally, supra note 13, at 1965-66.
56. Professor Wiener makes this argument in the context of international climate change law, but states that it is even more powerful, "a fortiori," made in the case of the United States. It is entirely relevant by analogy here, as the individual states of the United States are equally powerless to combat climate change when viewed in light of the aggregate emissions of the United States as a whole-not to mention the world.
57. See infra Part II.B.1.
58. See infra Part II.B.2.
59. The form of economic leakage discussed here also has evident corollary implications for the abatement of greenhouse gas emissions. While a state or initiative's emissions may decrease as sources reallocate their production or relocate their facilities, net emissions will not actually be curbed-the same amount of carbon is still being released into the atmosphere. Kirsten H. Engel, Mitigating Global Climate Change in the United States: A Regional Approach, 14 N.Y.U. ENVT'L. L.J. 54, 75-78 (2005).
60. W. COAST GOVERNOR'S GLOBAL WARMING INITIATIVE, STAFF RECOMMENDATIONS TO THE GOVERNORS (2004), available at http://www.ef.org/westcoastclimate/WCGGWI_Nov_04%20Report.pdf (finding that it would be more efficient and effective to act on a regional level and to learn from RGGI's experience creating a regional collaboration); see also Press Release, Office of N.Y. State Governor George Pataki, Governor Calls on Northeast States to Fight Climate Change (Apr. 25, 2003), available at http://www.ny.gov/governor/press/03/april25_2_03.htm.
61. See Wiener, supra note 2, at 519 ("[A] broader and thicker market enhances the costeffectiveness of trading by engaging lower-cost abatement opportunities. Extending the cap and trade market to include all sectors of the economy [and additional states] will further ensure cost-effectiveness.").
62. For a brief overview of the political battle that doomed ACES, see supra notes 14-22 and accompanying text.
63. After all, the initiatives would unite not only twenty-three American states, but also several Canadian provinces and, potentially, even a few Mexican states. Two of the United States' and the world's largest economies are leading members of the initiatives, California and New York City. California is the eighth largest economy in the world, with a gross domestic product (GDP) of $1.83 trillion, which constitutes 13% of the entire GDP of the United States.
64. Gross Domestic Product By State, BUREAU OF ECON. ANALYSIS, U.S. DEP'T OF COMMERCE, http://www.bea.gov/regional/gsp/ (choose "California" for the "state" tab, then choose appropriate tabs to find data) (last visited Dec. 12, 2010). New York has a GDP of $1.1 trillion, and, if it were a nation, it would rank as the 16th largest GDP in the world.
65. See id. (choose "New York" for the "state" tab, then choose appropriate tabs to find data). Combined, California and New York have an annual GDP of $2.93 trillion.
66. In its design summary, WCI specifically analyzes RGGI's use of auctions to distribute its allowances and adopts a similar quarterly auction system. WCI DESIGN SUMMARY, supra note 20, at 18.
67. THREE-REGIONS OFFSETS WORKING GROUP, ENSURING OFFSET QUALITY: DESIGNAND IMPLEMENTATION CRITERIA FOR A HIGH-QUALITY OFFSET PROGRAM (2010), http://www.rggi.org/docs/3_Regions_Offsets_Announcement_05_17_10.pdf.
68. An offset project is a mechanism incorporated into all three initiatives' programs which reduce compliance costs and increase compliance flexibility for sources by allowing them to literally offset their own emissions requirements by sponsoring projects to reduce or sequester emissions in another sector outside those regulated by the cap-and-trade program to which they belong. Given the inherently extra-jurisdictional nature of the mechanism, a legitimate, accurate, and comprehensive reporting system must be implemented by all three initiatives to ensure its functioning. Due to the necessary stringency of this inter-regional reporting component, it is unavoidable that the growth of an offset program should thereby foster collaboration and interdependence amongst the initiatives.
69. It is unlikely that the initiatives or their member states could enact similar barriers, as such state action would almost certainly come into conflict with the Dormant Commerce Clause, which prohibits a state from discriminating against commerce from another state.
70. Engel, supra note 41
71. Think Globally, supra note 13, at 1969-70.
72. City of Phila. v. New Jersey, 437 U.S. 617, 624 (1978) (concluding that any state action that the Court finds improperly discriminates against or burdens interstate commerce is unconstitutional).
73. Think Globally, supra note 13, at 1969.
74. The Magnificent Seven: States Take the Lead on Global Warming, AM. COUNCIL FOR AN ENERGY-EFFICIENT ECON. (Jan. 16, 2006, 8:00 PM), http://www.aceee.org/blog/2006/01/magnificent-seven-states-take-lead-global-warming (estimating that RGGI's rate of leakage falls between 60% and 90%).
75. See infra Part II.B.2 for a discussion on the constitutional limitations of the regional initiatives.
76. Robert N. Stavins, Policy Instruments for Climate Change: How Can National Governments Address a Global Problem?, 1997 U. CHI. LEGAL F. 293, 318 (1997) (arguing, by analogy for the action of a subnational polity, that free-riding is an inescapable phenomenon so long as a state acts unilaterally or membership in a collective initiative is voluntary).
77. J.R. DeShazo & Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L. REV. 1499, 1516-21 (2007).
78. Think Globally, supra note 13, at 1965.
79. See infra II.B.1.
80. Stavins, supra note 55. It bears mentioning that these dangers are purely economic arguments; many other factors may also come into play that might influence a firm's decision to move its operations.
81. Cf. Think Globally, supra note 13, at 1967-68 (arguing, in a global context, that there is an additional factor: the "slack off" effect which theorizes that one country may decrease its abatement if it is abating up to the point at which its global marginal benefits equal its domestic marginal costs and another country then abates beyond its own such equilibrium point, but this is not incorporated into the argument of the paper, as such a relationship seems inapplicable for an analysis of the behavior of sources in the United States).
82. The price effect will occur soon after the implementation of new greenhouse gas emission standards by an initiative, and it will not lead to immediate industry relocation.
83. However, in the longer term, the price effect will also likely influence the type of businesses that operate in a given initiative, as it may foster the growth of one industry while increasing the operating costs of another.
84. U.S. CONST. art. I, § 10, cl. 3.
85. U.S. CONST. art. I, § 10, cl. 3.
86. Virginia v. Tennessee, 148 U.S. 503 (1893).
87. Id. at 519.
88. Id. at 522.
89. Id. at 519.
90. See infra Part B, for a discussion on the preemption doctrine and its pertinence to the regional initiatives.
91. U.S. CONST., art. IV, § 1, cl. 2. For a discussion of the Supremacy Clause, see infra n. 96 and accompanying text.
92. Virginia, 148 U.S. at 519.
93. U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452 (1978).
94. Id. at 479.
95. Id. at 497 ("Even if appellants' factual allegations were supported by the record, they would be irrelevant to the facial validity of the Compact. As we have noted above, it is only the individual State, not the Commission, that has the power to issue an assessment-whether arbitrary or not. If the assessment violates state law, we must assume that state remedies are available.")
96. U.S. CONST. art. I, § 8, cl. 3 (emphasis added).
97. For the origins of the Dormant Commerce Clause, see Gibbons v. Ogden, 22 U.S. 1 (1824). An analysis of the sordid history of the Dormant Commerce Clause is unnecessary for the purposes of this paper, as the holding case law at present will determine the outcome of a Dormant Commerce Clause challenge against local climate change legislation.
98. 397 U.S. 137, 142 (1970).
99. Or. Waste Sys., Inc. v. Dep't of Envtl. Quality of Or., 511 U.S. 93, 99 (1994).
100. City of Phila. v. New Jersey, 437 U.S. 617, 624 (1978).
101. 477 U.S. 131 (1986).
102. Id. at 138.
103. Pike, 397 U.S. at 142.
104. Maine, 477 U.S. at 151-52 (finding that Maine's ban on the importation of baitfish is clearly discriminatory but justified by the legitimate local purpose of the state to "protect the health and safety of its citizens and the integrity of its natural resources").
105. Pike, 397 U.S. at 142.
106. See, e.g., United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330 (2007).
107. Maine, 477 U.S. at 151 (emphasis added).
108. 550 U.S. at 330.
109. United Haulers, 550 U.S. at 347 (emphasis added).
110. C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 392-93 (1994) (distinguishing between "revenue generation [which] is not a local interest that can justify discrimination against interstate commerce" and legitimate local interests such as "environmental cleanup costs," which would be valid but "must be rejected absent the clearest showing that the unobstructed flow of interstate commerce itself is unable to solve the local problem").
111. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under § 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009). This endangerment finding was made in response to the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007), and it follows that such findings might be considered of some value to the courts in appraising the value of local benefits produced.
112. C & A Carbone, 511 U.S. at 393.
113. Breard v. Alexandria, 341 U.S. 622, 640 (1951).
114. Endangerment and Cause or Contribute Findings for Greenhouse Gases Under § 202(a) of the Clean Air Act, 74 Fed. Reg. 66,496 (Dec. 15, 2009).
115. It also bears consideration that since the United Haulers decision in 2007, the disposition of the court has not radically changed. Two of the Justices who joined that majority opinion-Justices Stevens and Souter-have been replaced by two similarly-leaning Justices: Justices Sotomayor and Kagan.
116. The text of the Supremacy Clause in the Constitution is as follows: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." U.S. CONST., art. IV, § 1, cl. 2.
117. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977).
118. Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995).
119. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
120. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).
121. Medtronic, 518 U.S. at 485.
122. Bates v. Dow Agrosciences, 544 U.S. 431, 449 (2005).
123. This trend in the jurisprudence culminates with Geir v. American Honda Motor Co., 529 U.S. 861 (2000), but it is clearly alluded to prior to that decision in Medtronic, 518 U.S. at 496 ("Because the FDA is the federal agency to which Congress has delegated its authority to implement the provisions of the Act, the agency is uniquely qualified to determine whether a particular form of state law [conflicts with the purpose and objectives of Congress] and, therefore, whether it should be pre-empted.") (citation omitted).
124. Geir, 529 U.S. at 861.
125. Id. at 874.
126. Id. at 883.
127. Fidelity Fed. Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153-154 (1982) ("Where Congress has directed to an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily.").
128. Id. at 885.
129. 42 U.S.C. § 7416 (2006) ("[N]othing in this Act shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution;. [so long as it is not] less stringent than the standard or limitation under such plan or section.").
130. Geir, 529 U.S. at 869.
131. 42 U.S.C. § 7401 (2006).
132. Id. § 7401(b)(4).
133. Id. § 7401(b)(3).