Preempting State and Local Climate Change Policies

Industry Pushes Congress to Gut State and Local Climate Change Policies

After years of dangerous delay, political will to pass climate-change legislation appeared to have reached critical mass in 2008, with the election of a President and a congressional majority committed to action on the life-and-death issue at last. The Democratic-controlled House moved quickly, passing legislation under the sure-handed guidance of Rep. Henry Waxman (D-CA).  But in the Senate, the effort collapsed.  The moment passed, the opportunity collapsed.  Congress shows no apparent interest in addressing the issue.

One sticking point in the debate was whether federal legislation would preempt state and local climate change laws and policies. Preemption was -- and presumably remains -- a top priority for carbon-producing industries, which hope first to defeat climate change legislation, but, if such legislation is to pass, hope to use it as a vehicle to secure not particularly aggressive federal caps on global warming emissions, while at the same time eliminating more rigorous state and local controls on their emissions.

By one count, 33 states and many more local jurisdictions – together  representing a majority of U.S. greenhouse gas emissions – have either completed or are about to complete climate change action plans.  Their various plans are tailored to the specific needs of their state economies, as well as to the pollution sources within their borders.  And yet state plans follow an approach taken by California, so do not constitute a "patchwork" of requirements as preemption supporters argue.

Of course, state and local jurisdictions have been forced to act by the federal government’s failure to move. But many of the most effective approaches to curbing greenhouse gas emissions are squarely within the realm of state and local governments. That is where decisions are made about zoning laws, controlling sprawl, regulating utilities, requiring local utilities to develop renewable energy portfolios, and more. As CPR Member Scholar Rena Steinzor has written, “All of these measures can have an important effect on emissions. To wipe them out for the sake of a single, limited federal ‘cap and trade’ program would push climate change policy one step ahead and three steps back.”

Moreover, virtually all of the major environmental laws now on the federal books allow states to adopt tougher approaches, tailored to their particular circumstances. The federal laws serve as a “floor” upon which more stringent state regulation may be built. A federal climate change bill that broadly preempted state and local policies would be a radical departure from that approach.

Read more about CPR Member Scholars’ work on climate change preemption:

• CPR White Paper on Federal Preemption of State and Local Climate Change Laws.  Read CPR White Paper #803 by Cooperative Federalism and Climate Change: Why Federal, State, and Local Governments Must Continue to Partner, by William Andreen, Robert Glicksman, Nina Mendelson, and Rena Steinzor and CPR Policy Analyst Shana Jones, published May 2008.
• CPRBlog Entries on Boxer-Kerry's Journey Through the Senate.  CPR Member Scholars starting blogging as soon as the bill was introduced.  Read what they've said.  Or read their CPRBlog entries on Waxman-Markey, from the day it was introduced in the House through passage in June 2009 and beyond.
  
• Waxman-Markey Instant Analysis on CPRBlog.  CPR Member Scholars blogged extensively and quickly in response to the introduction of the "Discussion Draft" of the Waxman-Markey climate change bill.  Read Nina Mendelson on Citizen Suits, Victor Flatt on Carbon Offsets, Kirsten Engel on State and Regional Cap-and-Trade Regimes, Alice Kaswan on Environmental Justice as well as Renewables, Transportation, and EPA and State Regulation, William Buzbee on Federalism Issues, and Holly Doremus and Alex Camacho on Adaptation.
• Editorial Memo.  Read Rena Steinzor's June 2008 Editorial Memo on Federal Preemption of State and Local Climate Change Laws.
• Cooperative Federalism: The Law Review Article.  According to CPR Member Scholar Holly Doremus, writing with economist Michael Hanemann, emissions trading alone will not solve the climate change crisis. They call for reliance on cooperative federalism, modeled in part on the Clean Air Act’s approach. Read their Arizona Law Review article on the subject, Of Babies and Bathwater: Why the Clean Air Act’s Cooperative Federalism Framework is Useful for Addressing Global Warming.
• Mitigation, Prevention, Adaptation.  Also Read about CPR Member Scholars' work on Mitigating and Preventing Climate Change and Adapting to Climate Change.
• Global Warming Publications.  Read CPR Member Scholars' various publications on global warming topics, including Adaptation, Book Reviews, Boxer-Kerry, Cap and Trade, Carbon Capture and Sequestration, Coal-fired Power Plants, the Copenhagen Conference, Costs, Economics, Effects on Trade, Environmental Justice, Federalism Issues, Global Warming in general, Greenhouse Gas Emissions, Legislation, Liquefied Natural Gas, Litigation, Modeling Issues, Natural Resources/Conservation Issues, the Obama Administration, Offset Programs, Preemption, Regulation, Technology, Testimony, Water Law, and Waxman-Markey.