State Innovation and Preemption: Lessons from State Climate Change Efforts
In cases involving both express and implied preemption, the Supreme Court and lower courts have applied a "presumption against preemption" to preserve state law in areas of "traditional state concern." In the decades since Congress first enacted major health, safety, and environmental legislation, federal agencies in the public health and environmental areas have created massive federal regulatory programs to fulfill Congressional directives. As a result of these agency developments, courts and scholars are forced to consider not only the original Congressional language relevant to preemption, but also subsequent actions taken by federal agencies to implement Congressional mandates to determine whether there are exclusive federal interests that may preempt traditional state authority. Based on a study of recent state efforts to control greenhouse gas emissions, I suggest that in cases where Congress has expressed an intent to preserve state law in the federal regulatory framework governing areas of "traditional state concern," such intent should be construed not only to preserve state law in its current form but also to act as an implied delegation to states to fulfill federal as well as state policy goals going forward. Under such an approach, where states have pursued new and innovative approaches to implement Congressional goals, such efforts should serve to counterbalance any federal agency efforts to carve out areas of exclusive federal interest to preempt state law.
Klass, Alexandra B. "State Innovation and Preemption: Lessons from State Climate Change Efforts." Loyola Los Angeles Law Review 42, no. 4 (2008): 1653-1720. (Work published when author not on Michigan Law faculty.)