In this Article, we draw on collective action theory1 and traditional preemption doctrine2 to develop a framework for thinking about environmental preemption. We then apply it to regulation of greenhouse gases (GHGs) in response to global climate change.3 We begin with the fundamental premise that preemption doctrine can be understood as a means of allocating decisional responsibility between the federal and state governments with respect to matters in which they exercise concurrent authority.4 Because preemption in all its forms generally depends upon the purposes of federal regulation, the critical question is the extent to which those purposes justify the displacement of state regulatory authority.
The development of a framework for thinking about preemption issues is especially important in light of recent trends in the regulatory state. From the New Deal through the "Great Society," the dominant political and academic mentality assumed that government regulation was necessary to prevent abuse of economic power, protect public health and safety, and preserve the environment.5 Over time, however, critics emerged to challenge these assumptions. Academics extolled the virtues of free markets and argued that most regulation is the product of rent-seeking by special interests (cloaked in public interest rhetoric).6 Politicians blamed a variety of economic and social ills on excessive regulation, which they contended stifled economic growth while producing few, if any, measurable benefits.7 In light of this sustained challenge to the administrative state, we live in an era of regulatory skepticism.
Even though the opponents of regulation have not succeeded in dismantling the modern regulatory state, they have had a significant impact on the political and legal landscape.8 Deregulation or market-based approaches to regulation have been implemented in various areas.9 Statutes and executive orders direct federal agencies to assess the costs of regulation and seek the least burdensome alternatives.10 There are even some signs of more aggressive judicial review of government regulation.11 The modern regulatory state remains firmly established and the need for economic, health and safety, and environmental regulation is broadly accepted. But in the era of regulatory skepticism, the creation of new regulatory programs is difficult and the implementation of existing programs is often less robust; proponents of regulation bear a heavier burden of justification to persuade policymakers and must overcome a variety of new legal hurdles.
These forces are particularly apparent in the field of environmental law. With some exceptions, the trend since the mid-1980s has been toward weakening federal laws that protect the environment. Congress has weakened procedural requirements designed to make it more difficult for federal agencies to engage in, or authorize others to engage in, environmentally damaging activities.12 It has also removed or weakened some of the substantive constraints applicable to activities that are potentially harmful to public health or the environment.13 The executive branch, through the issuance of executive orders and agency regulations, has embarked upon a similar path, although the antiregulatory thrust has been stronger under some administrations than others.14 Finally, the federal courts have restricted the scope and watered down the content of federal environmental law through their interpretation and application of both constitutional and statutory doctrines.15
Due to an unreceptive federal government, environmentalists have increasingly turned to state and local regulatory bodies, many of which have been far more sympathetic to their regulatory agenda. Some of these state and local entities have adopted environmental regulations that are more protective of the environment than their federal counterparts, only to encounter federal obstructions. Insofar as the federal government had taken the lead in environmental protection since the adoption of the Clean Air and Clean Water Acts in the early 1970s,16 this flurry of state regulatory activity represents something of a role reversal. …