Nothing is Real: Protecting the Regulatory Void Through Federal Preemption by Inaction
By Robert L. Glicksman
INTRODUCTION
The provisions of the U.S. Constitution that define the roles of the national and state governments have always been the subject of interest and debate. In the 1990s, the Supreme Court, under Chief Justice William Rehnquist, began reexamining a variety of important federalism doctrines. The Court's docket included cases raising significant questions about the degree to which the Constitution authorizes or constrains action by each level of government. Some of the cases required identification of the scope of federal power, most notably the federal legislative power under the Commerce Clause. Others dealt with the manner in which provisions of the Constitution such as the Tenth Amendment constrain federal legislative power. The Court also addressed the extent to which the Eleventh Amendment immunizes the states from suits by private individuals for violations of federal law and the impact of the dormant Commerce Clause on state regulatory authority.
Another constraint on the exercise of state power derives from the Supremacy Clause, which is the source of the doctrine of federal preemption. That doctrine provides an important piece of the federal-state power allocation puzzle. Federal preemption law is important due to both the frequency with which it is raised and the impact it has on the availability of state law. According to one source, “preemption . . . is almost certainly the most frequently used doctrine of constitutional law in practice.” In addition, the preemption doctrine is a critical aspect of the interplay between federal and state lawmaking authority because “nearly every federal statute addresses an area in which the states also have authority to legislate (or would have such authority if not for federal statutes).”
The Supreme Court has not neglected the preemption doctrine during its recent efforts to rethink, and in some cases reconfigure, constitutional federalism. The Court has found that federal regulatory statutes preempted state statutes or administrative regulations. It has held that federal statutes preempted state common law remedies. The Court has identified federal administrative regulations that have the same effect. Over the last few years, the Court's interest in preemption has caught the eyes of legal academics, who provide a rich and extensive literature on the normative and doctrinal components of preemption law. Recent scholarly inquiries deal with issues such as the extent to which federal agency interpretations of statutes should receive judicial deference, whether agency statements of preemptive intent found in regulatory preambles should be given effect, the propriety of the adoption of anti-preemption rules of statutory construction, and the role of preemption doctrine in product liability litigation.
What many of these cases and articles have in common is their focus on the extent to which some kind of action by the federal government has the capacity to preempt state statutes, regulations, or common law theories of liability. The preemption doctrine has the potential to sweep even more broadly, however, than situations involving affirmative federal activity, such as the adoption of statutes or administrative regulations. On occasion, even the federal government's failure to act is deemed sufficient to preclude state governments from pursuing regulatory initiatives or adjudicating common law tort actions seeking redress for harms caused by defendants' activities. Little attention is paid in the academic literature to the propriety of this federal preemption by inaction.
The purpose of this Article is to identify when inaction by either Congress or a federal regulatory agency should be deemed to preempt state law. This inquiry, much like the resolution of preemption issues involving affirmative federal conduct, has important implications for the values reflected in our federal system of government. But judicial recognition of preemption by inaction poses particular difficulties for the intended beneficiaries of the preempted state law regimes, such as those designed to protect public health, public safety, or the environment. If a court finds that federal legislative or administrative failure to act preempts state regulation, then the activities that prompted the state (through its legislative, executive, or judicial branches) to create some kind of protective regulatory or liability mechanism will of necessity become completely unregulated. That result may have significant adverse consequences for health, safety, welfare, or the environment, the traditional focal points of the exercise of a state's police powers.
This Article uses a timely and important reference point to illustrate what is at stake when federal inaction is alleged to preempt state law: the battle over the authority of the states to regulate activities that contribute to global climate change in light of the federal government's largely sluggish response to the environmental and health risks posed by climate change. Part II of the Article sets the stage for the normative analysis that follows. The first subsection of Part II describes the federal legislation potentially applicable to the regulation of activities that contribute to global climate change as well as the litigation that raises the prospect that ongoing and future state regulation of those activities is preempted by federal law. The second subsection of Part II briefly summarizes the tests enunciated by the Supreme Court to determine whether federal law explicitly or implicitly reflects the federal government's intent to preempt state law.
Based on the framework for analyzing preemption questions described in Part II, Part III identifies the circumstances in which the federal government's failure to act creates the potential for preemption of state law, explicit or implicit, and analyzes in each situation whether preemption by inaction is justifiable as a normative matter. It also analyzes the degree to which federal agencies that decline to act under legislation vesting in them the authority to do so may affect the preemption result reached in court through their interpretations of the allegedly preemptive federal statutes. Finally, the Article inquires whether state law should ever be preempted in a situation in which the federal government lacks the authority to address the subject of state regulation. The Article illustrates the potential impact on the allocation of regulatory power between the federal government and the states of each component of the preemption principles urged in Part III by applying them to the global climate change context.
Part III sets forth four basic recommendations for the resolution of preemption problems, one of which is directed at Congress and the rest of which are directed at the courts. First, in deference to state prerogatives in areas of traditional state concern, Congress should not preempt state regulation in areas where it has chosen not to regulate unless it first determines either that a state's regulatory initiative would inappropriately impose adverse impacts on other states or that federal policies can best be achieved in the absence of positive regulation at any level of government. Second, in the absence of federal regulatory action, the courts should never find implied preemption based on occupation of the regulatory field in which a state is engaged. Third, the courts should find implied preemption in the absence of federal regulatory action based on a conflict with federal objectives only if Congress explicitly delegates to a federal agency the power to preempt state law to prevent it from subverting federal goals and the agency clearly, authoritatively, and persuasively exercises that authority. Fourth, the courts should never find implied preemption of state law if the federal actor involved lacks jurisdiction over the activities being regulated by a state. If the courts are willing to consider preemption in such circumstances, they should afford no deference to agency statutory interpretations that bear on the degree of displacement of state law arising from the allegedly preemptive statute. These recommendations strike an appropriate balance between federal and state power while minimizing the risk that preemption of state law will create a regulatory void that creates unacceptable risks to health, safety, or the environment.
The provisions of the U.S. Constitution that define the roles of the national and state governments have always been the subject of interest and debate. In the 1990s, the Supreme Court, under Chief Justice William Rehnquist, began reexamining a variety of important federalism doctrines. The Court's docket included cases raising significant questions about the degree to which the Constitution authorizes or constrains action by each level of government. Some of the cases required identification of the scope of federal power, most notably the federal legislative power under the Commerce Clause. Others dealt with the manner in which provisions of the Constitution such as the Tenth Amendment constrain federal legislative power. The Court also addressed the extent to which the Eleventh Amendment immunizes the states from suits by private individuals for violations of federal law and the impact of the dormant Commerce Clause on state regulatory authority.
Another constraint on the exercise of state power derives from the Supremacy Clause, which is the source of the doctrine of federal preemption. That doctrine provides an important piece of the federal-state power allocation puzzle. Federal preemption law is important due to both the frequency with which it is raised and the impact it has on the availability of state law. According to one source, “preemption . . . is almost certainly the most frequently used doctrine of constitutional law in practice.” In addition, the preemption doctrine is a critical aspect of the interplay between federal and state lawmaking authority because “nearly every federal statute addresses an area in which the states also have authority to legislate (or would have such authority if not for federal statutes).”
The Supreme Court has not neglected the preemption doctrine during its recent efforts to rethink, and in some cases reconfigure, constitutional federalism. The Court has found that federal regulatory statutes preempted state statutes or administrative regulations. It has held that federal statutes preempted state common law remedies. The Court has identified federal administrative regulations that have the same effect. Over the last few years, the Court's interest in preemption has caught the eyes of legal academics, who provide a rich and extensive literature on the normative and doctrinal components of preemption law. Recent scholarly inquiries deal with issues such as the extent to which federal agency interpretations of statutes should receive judicial deference, whether agency statements of preemptive intent found in regulatory preambles should be given effect, the propriety of the adoption of anti-preemption rules of statutory construction, and the role of preemption doctrine in product liability litigation.
What many of these cases and articles have in common is their focus on the extent to which some kind of action by the federal government has the capacity to preempt state statutes, regulations, or common law theories of liability. The preemption doctrine has the potential to sweep even more broadly, however, than situations involving affirmative federal activity, such as the adoption of statutes or administrative regulations. On occasion, even the federal government's failure to act is deemed sufficient to preclude state governments from pursuing regulatory initiatives or adjudicating common law tort actions seeking redress for harms caused by defendants' activities. Little attention is paid in the academic literature to the propriety of this federal preemption by inaction.
The purpose of this Article is to identify when inaction by either Congress or a federal regulatory agency should be deemed to preempt state law. This inquiry, much like the resolution of preemption issues involving affirmative federal conduct, has important implications for the values reflected in our federal system of government. But judicial recognition of preemption by inaction poses particular difficulties for the intended beneficiaries of the preempted state law regimes, such as those designed to protect public health, public safety, or the environment. If a court finds that federal legislative or administrative failure to act preempts state regulation, then the activities that prompted the state (through its legislative, executive, or judicial branches) to create some kind of protective regulatory or liability mechanism will of necessity become completely unregulated. That result may have significant adverse consequences for health, safety, welfare, or the environment, the traditional focal points of the exercise of a state's police powers.
This Article uses a timely and important reference point to illustrate what is at stake when federal inaction is alleged to preempt state law: the battle over the authority of the states to regulate activities that contribute to global climate change in light of the federal government's largely sluggish response to the environmental and health risks posed by climate change. Part II of the Article sets the stage for the normative analysis that follows. The first subsection of Part II describes the federal legislation potentially applicable to the regulation of activities that contribute to global climate change as well as the litigation that raises the prospect that ongoing and future state regulation of those activities is preempted by federal law. The second subsection of Part II briefly summarizes the tests enunciated by the Supreme Court to determine whether federal law explicitly or implicitly reflects the federal government's intent to preempt state law.
Based on the framework for analyzing preemption questions described in Part II, Part III identifies the circumstances in which the federal government's failure to act creates the potential for preemption of state law, explicit or implicit, and analyzes in each situation whether preemption by inaction is justifiable as a normative matter. It also analyzes the degree to which federal agencies that decline to act under legislation vesting in them the authority to do so may affect the preemption result reached in court through their interpretations of the allegedly preemptive federal statutes. Finally, the Article inquires whether state law should ever be preempted in a situation in which the federal government lacks the authority to address the subject of state regulation. The Article illustrates the potential impact on the allocation of regulatory power between the federal government and the states of each component of the preemption principles urged in Part III by applying them to the global climate change context.
Part III sets forth four basic recommendations for the resolution of preemption problems, one of which is directed at Congress and the rest of which are directed at the courts. First, in deference to state prerogatives in areas of traditional state concern, Congress should not preempt state regulation in areas where it has chosen not to regulate unless it first determines either that a state's regulatory initiative would inappropriately impose adverse impacts on other states or that federal policies can best be achieved in the absence of positive regulation at any level of government. Second, in the absence of federal regulatory action, the courts should never find implied preemption based on occupation of the regulatory field in which a state is engaged. Third, the courts should find implied preemption in the absence of federal regulatory action based on a conflict with federal objectives only if Congress explicitly delegates to a federal agency the power to preempt state law to prevent it from subverting federal goals and the agency clearly, authoritatively, and persuasively exercises that authority. Fourth, the courts should never find implied preemption of state law if the federal actor involved lacks jurisdiction over the activities being regulated by a state. If the courts are willing to consider preemption in such circumstances, they should afford no deference to agency statutory interpretations that bear on the degree of displacement of state law arising from the allegedly preemptive statute. These recommendations strike an appropriate balance between federal and state power while minimizing the risk that preemption of state law will create a regulatory void that creates unacceptable risks to health, safety, or the environment.