The Politics of Preemption: An Application of Preemption Jurisprudence and Policy to California Assembly Bill 1493

By Colangelo, Sara A. | Environmental Law, Winter 2007 | Go to article overview

The Politics of Preemption: An Application of Preemption Jurisprudence and Policy to California Assembly Bill 1493


Colangelo, Sara A., Environmental Law


  I. INTRODUCTION
     A. Could the Events of 2005 Modify the Application of
        Preemption?
II.  AB 1493 AND POSSIBLE CONFLICTS WITH THE CLEAN AIR ACT AND THE
     ENERGY POLICY AND CONSERVATION ACT PREEMPTION PROVISIONS
     A. Assembly Bill 1493: The California Climate Change Law
     B. The Preemption Provision of the Clean Air Act and AB 1493
     C. The Preemption Provision of the Energy Policy and
        Conservation Act and All 1493
III. PREEMPTION JURISPRUDENCE IN the SUPREME COURT
     A. Historical Development and Principles of Preemption
        Jurisprudence
     B. Related Doctrinal Trends Threatening AB 1493
 IV. PREEMPTION PROVISIONS OF THE ENERGY POLICY AND CONSERVATION
     ACT AND THE CLEAN AIR ACT: POLITICS AND PREEMPTION APPLIED
     A. Preemption Can Be Political: Agencies, Administration Policy,
        and Congress
     B. The EPCA Preemption Provision: The Strongest Challenge to
        AB 1493
     C. The CAA Preemption Provision: Allowance for California
        Dreamin'.
     D. Congressional Intent Behind the EPCA and the CAA:
        Reconciling Conflicting Statutory Schemes
V.   CONCLUSION

I. INTRODUCTION

Remarking on the difficulty of deciding questions of preemption, the Supreme Court has acknowledged that preemption lacks an "infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula." (4) Preemption jurisprudence illustrates a compromise between concerns for federalism and states' rights, and concerns for uniformity in matters of the national economy. The current debate over domestic energy policy and climate change initiatives highlights the challenge in allocating power between the federal government and the states. Energy, environmental, and automotive regulations typify such concerns because they encompass traditional state domains of health and safety, and federal domains of national and transnational industries. Thus, as states begin undertaking individual and collective action directed at the issue of climate change, questions of preemption surface to challenge the constitutionality of such action.

The legislature, judiciary, and the public lack consensus over the appropriate allocation of authority for climate change regulations. Lawmakers and agencies at the state and federal level vacillate between claims of coexistent or exclusive authority. Hence, now that previous issues of scientific uncertainty appear to be resolved with some finality and unanimity regarding human contribution to global warming, demarcating governmental authority over climate change initiatives has emerged as the latest roadblock for further action.

For years, much of the international community has expressed significant concern over the impacts of climate change. (5) Now, due to certain events in 2005, such as hurricanes Katrina and Rita, and after mounting evidence in the last few decades, U.S. citizens are also expressing a growing apprehension regarding climate change. (6) In particular, as a response to the concern of its constituents, California has led the United States since the 1980s in technology and strategy for mitigating this impending threat. Today, California appears poised to lead the nation in actions targeted at the transportation sector's impact on global climate change.

A. Could the Events of 2005 Modify the Application of Preemption?

Modern U.S. history is replete with examples of a single event or period of time being labeled as the catalyst for significant changes in thinking and behavior. The stock market crash of 1929, events of the 1950s and 1960s giving rise to the environmental and civil rights movements, (7) and the tragedy of September eleventh are but a few examples. Retrospectively, various events, issues, and consequences manifested in 2005 will likely be viewed as such a catalyst, and may well be causal factors for rethinking a variety of political, economic, and legal precedents. …

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