A Collective Action Perspective on Ceiling Preemption By Federal Environmental Regulation: The Case of Global Climate Change

In an era of regulatory skepticism, proponents of regulation in general and environmental regulation in particular face a number of new political and legal hurdles, particularly at the federal level. Frustrated with federal inaction or weak federal regulation, it is increasingly common for states and local governments to adopt environmental laws that seek to provide greater environmental protection. The critical question is when federal environmental law provides a ceiling, preempting such state regulatory programs. In this article, which is part of a forthcoming symposium on federal preemption in the Northwestern Law Review, Professors Glicksman and Levy develop a framework for evaluating ceiling preemption issues in the environmental law arena and then apply it to the specific problem of state regulation of greenhouse gas (GHG) emissions that contribute to global climate change. Traditional preemption doctrine emphasizes the purpose of federal laws, which is relevant to all three major forms of preemption: express, occupation of the field, and conflict preemption (including state laws that are an obstacle to the accomplishment of the object and purpose of federal law). Few environmental statutes expressly preempt more stringent state laws. The values of federalism, political process theory, and textualism support a presumption against implied preemption that should only be overcome if there is a direct conflict between federal and state law or state regulation would compromise a clear and primary purpose of a federal statute. The question then becomes which environmental purposes might provide sufficient justification to overcome the presumption and support ceiling preemption. Federal environmental law emerged largely as a response to various collective action problems that tended to prevent states, acting individually, from adopting appropriate environmental laws. Such concerns included negative externalities, the need for resource pooling, the race to the bottom phenomenon, the rationalization of standards (uniformity), and the so-called NIMBY (not in my back yard) problem. In considering the problem of ceiling preemption, then, it makes sense to ask whether the collective action problem in question is implicated by state regulation that is more protective of the environment than federal regulation. In general terms, negative externalities, resource pooling issues, and the race to the bottom can be expected to cause underregulation by states, and thus do not support ceiling preemption. In contrast, uniformity and NIMBY concerns would tend to support ceiling preemption. Using this basic framework, the article offers a detailed analysis of state regulation of GHG emissions, which industry has argued is preempted by federal law, including the Clean Air Act. This analysis suggests that the primary purposes of the Act, which include controlling negative externalities, taking advantage of resource pooling, and preventing a race to the bottom, do not generally support ceiling preemption. Although resource pooling might support ceiling preemption as a means of strengthening the bargaining position of the Unites States vis-à-vis other countries, this purpose was not a significant concern when the Act was adopted. The need for uniformity supports limited ceiling preemption for mobile sources of emissions (i.e., cars and trucks), which are subject to express preemption provisions. Uniformity concerns are less significant for stationary sources, and there is little evidence to support broad ceiling preemption on this basis. Finally, NIMBY concerns were not an important factor in the adoption of the Clean Air Act. The article also considers the implications of the framework for preemption under a cap and trade program, which is the likely form that any federal regulatory program for GHG emissions would take

Climate Change Adaptation: A Collective Action Perspective on Federalism Considerations

The buildup of greenhouse gases in the atmosphere and the likely growth in future emissions due to increased energy consumption in developing nations have convinced many scientists and policymakers of the need to develop policies that will allow adaptation to minimize the adverse effects of climate change. Climate change adaptation is designed to increase the resilience of natural and human ecosystems to the threats posed by a changing environment. Although an extensive literature concerning the federalism implications of climate change mitigation policy has developed, less has been written about the federalism issues arising from climate change adaptation policy. This article provides a framework for determining how to structure a policy to facilitate adaptation to climate change that assigns appropriate roles to all levels of government. In particular, the article addresses three questions. First, when is participation by the federal government in directing climate change adaptation policy appropriate? Second, should the federal government set a floor that requires participation by, or at least conformance with federal requirements, by states and localities? Third, should the federal government ever displace state and local adaptation responses based on the threats they pose to federal interests? Collective action principles can assist in answering these questions and determining the proper institutional arrangements for dealing with climate change adaptation. It is inevitable that clashes of interest will develop between jurisdictions when desired resources are scarce or efforts by one jurisdiction to avoid the undesirable aspects of climate change shift the burden of those changes to other jurisdictions. These conflicts are likely to arise both when states and localities fail to do enough to anticipate and react to climate change and when they do “too much.” In these instances, federal intervention is desirable. The presence of transboundary externalities and race-to-the-bottom considerations are the most likely justifications for establishment of a federal floor, and conditional funding or cooperative federalism arrangements may be useful in avoiding excessive intrusion on state and local discretion. While most of the collective action rationales for a federal presence in environmental law are not likely to justify preemption of state and local adaptation measures, transboundary externalities, the need for uniformity, and the proclivity of state and localities to foist problems arising from climate change on other jurisdictions may do so in limited instances

Climate Change Adaptation: A Collective Action Perspective on Federalism Considerations

The buildup of greenhouse gases in the atmosphere and the likely growth in future emissions due to increased energy consumption in developing nations have convinced many scientists and policymakers of the need to develop policies that will allow adaptation to minimize the adverse effects of climate change. Climate change adaptation is designed to increase the resilience of natural and human ecosystems to the threats posed by a changing environment. Although an extensive literature concerning the federalism implications of climate change mitigation policy has developed, less has been written about the federalism issues arising from climate change adaptation policy. This article provides a framework for determining how to structure a policy to facilitate adaptation to climate change that assigns appropriate roles to all levels of government. In particular, the article addresses three questions. First, when is participation by the federal government in directing climate change adaptation policy appropriate? Second, should the federal government set a floor that requires participation by, or at least conformance with federal requirements, by states and localities? Third, should the federal government ever displace state and local adaptation responses based on the threats they pose to federal interests? Collective action principles can assist in answering these questions and determining the proper institutional arrangements for dealing with climate change adaptation. It is inevitable that clashes of interest will develop between jurisdictions when desired resources are scarce or efforts by one jurisdiction to avoid the undesirable aspects of climate change shift the burden of those changes to other jurisdictions. These conflicts are likely to arise both when states and localities fail to do enough to anticipate and react to climate change and when they do “too much.” In these instances, federal intervention is desirable. The presence of transboundary externalities and race-to-the-bottom considerations are the most likely justifications for establishment of a federal floor, and conditional funding or cooperative federalism arrangements may be useful in avoiding excessive intrusion on state and local discretion. While most of the collective action rationales for a federal presence in environmental law are not likely to justify preemption of state and local adaptation measures, transboundary externalities, the need for uniformity, and the proclivity of state and localities to foist problems arising from climate change on other jurisdictions may do so in limited instances

Judicial Activism and Restraint in the Supreme Court\u27s Environmental Law Decisions

The proper role of the courts in our system of government has long been the source of considerable controversy. The environmental law decisions of the United States Supreme Court illustrate the opportunities for, and implications of, the exercise of judicial activism and restraint in the regulatory context. Beginning in the late 1960s, Congress enacted a series of statutes intended, sometimes at the expense of economic efficiency, to prevent environmental degradation and to force improvements in pollution control technology. Perceiving administrative reluctance to implement these laws, the Supreme Court in the 1960s and early 1970s exercised its power broadly to ensure the realization of a pro-environment policy. This judicial activism was supported by commentators who argued that environmental interests were underrepresented in the regulatory process and that judicial intervention was necessary to counterbalance the powerful interests favoring industrial development at the expense of environmental protection. More recently, the Supreme Court appears to have retreated from this activism by emphasizing judicial restraint in its environmental decisions. Proponents of judicial restraint assume this shift has limited the Court’s power to implement its own policy preferences. Under this presumed limitation the Court’s decisions simply reflect the environmental policies of other governmental institutions. These recent Supreme Court decisions, however, reflect a trend seemingly at odds with congressional policy, reaching pro-development results far more often than pro-environment results. While this shift may reflect the exercise of judicial restraint toward governmental institutions other than Congress that have pursued a development-oriented policy, the shift also may be the result of the Court’s own pro-development policy. This latter possibility draws into question the traditional assumption that judicial restraint prevents the Court from implementing its own policy choices. This Article concludes that, despite its ostensible adherence to principles of judicial restraint, the Supreme Court has pursued a policy far less protective of the environment than the policy intended by Congress. A detailed analysis of the Court’s environmental decisions since 1976 supports this conclusion. To frame this analysis, the Article examines the concepts of judicial activism and judicial restraint and distinguishes between ‘institutional’ and ‘policy’ based activism and restraint. It then describes the institutional and policy implications of judicial oversight of the implementation of regulatory programs in general, and of environmental regulation in particular. The article then gathers the Court’s environmental law decisions and divides them into three broad categories: those concerning substantive review of environmental policy decisions made by federal agencies; those involving judicial remedies that supplement administrative enforcement of environmental statutes; and those addressing procedural opportunities for private parties to pursue environmental protection goals at the agency level and before the courts. Analysis of these decisions demonstrates a marked shift in the policy outcomes reached by the Court, and two reasons why the alleged exercise of judicial restraint has not prevented the Court from pursuing a pro-development policy. First, the Court has invoked principles of judicial restraint toward administrative agencies to justify decisions with pro-development consequences that are inconsistent with congressional intent. Second, the Court at times has engaged in judicial activism that produced pro-development results. In short, despite its emphasis on judicial restraint, the Supreme Court has been making environmental policy—a pro-development policy contrary to the pro-environment policy chosen by Congress

The New Separation of Powers Formalism and Administrative Adjudication

The Supreme Court has entered a new era of separation of powers formalism. Others have addressed many of the potentially profound consequences of this return to formalism for administrative law. This paper focuses on an aspect of the new formalism that has received little attention—its implications for the constitutionality of administrative adjudication. The Court has not engaged in an extensive discussion or reformulation of its separation of powers jurisprudence concerning administrative adjudication since its highly functionalist decision in Commodity Futures Trading Commission v. Schor more than three decades ago, but recent opinions of individual Justices show signs that such a doctrinal restatement may be on the horizon.Despite the current lack of doctrinal clarity, administrative adjudication is generally valid either because Congress may vest the determination of so-called “public rights” in non-Article III tribunals or because administrative agencies adjudicate cases as adjunct factfinders for the courts. The foundation for the emergent Article III formalism, advanced most prominently by Justice Gorsuch in a pair of cases involving the legality of administrative adjudication of patent validity, is a categorical rule that Article III requires an independent judiciary to have decisional authority in adjudications that affect private property (and other protected rights), in much the same way that the unitary executive principle requires Presidential control over matters within the executive branch. Under this view, however, the judicial power is subject to a formalistic, historically defined exception for matters of public rights, which can be adjudicated without the involvement of the judiciary. This approach may be gaining traction as part of the broader resurgence of separation of powers formalism.We argue, however, that Justice Gorsuch’s approach is flawed because it does not account for the structural role of the Article III judiciary. Although the cases have long recognized that Article III has both structural and individual rights components, separation of powers is ordinarily understood primarily in structural terms. Article III analysis therefore must account for the structural role of the Article III courts and protect the structural interests of the federal judiciary. Focusing on the structural issues raised by non-Article III adjudication highlights two essential points. First, the status and character of the non-Article III tribunal is critical to the separation of powers analysis—a point that is typically ignored under current doctrine. Second, the structural interests of the federal courts may be implicated even when the adjudication of a matter does not implicate any individual right to an Article III court, especially in light of the courts’ role in protecting the rule of law. The rule of law applies even when executive action does not deprive anyone of a private right.Building on these points, our core argument is that, properly understood, most administrative adjudication is fully consistent with separation of powers formalism because it involves the execution of law by officials within the executive branch. In other words, the initial implementation of statutory provisions by agencies using quasi-judicial procedures is executive in character. This understanding brings coherence to the public rights doctrine that has long governed the constitutionality of administrative adjudication. It also reveals that the critical separation of powers question for administrative adjudication is the availability and scope of judicial review, rather than the propriety of initial administrative adjudication. It is the availability and scope of judicial review which determine the extent of any encroachment on the exercise of judicial power under Article III

A Collective Action Perspective on Ceiling Preemption By Federal Environmental Regulation: The Case of Global Climate Change

In an era of regulatory skepticism, proponents of regulation in general and environmental regulation in particular face a number of new political and legal hurdles, particularly at the federal level. Frustrated with federal inaction or weak federal regulation, it is increasingly common for states and local governments to adopt environmental laws that seek to provide greater environmental protection. The critical question is when federal environmental law provides a ceiling, preempting such state regulatory programs. In this article, which is part of a forthcoming symposium on federal preemption in the Northwestern Law Review, Professors Glicksman and Levy develop a framework for evaluating ceiling preemption issues in the environmental law arena and then apply it to the specific problem of state regulation of greenhouse gas (GHG) emissions that contribute to global climate change. Traditional preemption doctrine emphasizes the purpose of federal laws, which is relevant to all three major forms of preemption: express, occupation of the field, and conflict preemption (including state laws that are an obstacle to the accomplishment of the object and purpose of federal law). Few environmental statutes expressly preempt more stringent state laws. The values of federalism, political process theory, and textualism support a presumption against implied preemption that should only be overcome if there is a direct conflict between federal and state law or state regulation would compromise a clear and primary purpose of a federal statute. The question then becomes which environmental purposes might provide sufficient justification to overcome the presumption and support ceiling preemption. Federal environmental law emerged largely as a response to various collective action problems that tended to prevent states, acting individually, from adopting appropriate environmental laws. Such concerns included negative externalities, the need for resource pooling, the race to the bottom phenomenon, the rationalization of standards (uniformity), and the so-called NIMBY (not in my back yard) problem. In considering the problem of ceiling preemption, then, it makes sense to ask whether the collective action problem in question is implicated by state regulation that is more protective of the environment than federal regulation. In general terms, negative externalities, resource pooling issues, and the race to the bottom can be expected to cause underregulation by states, and thus do not support ceiling preemption. In contrast, uniformity and NIMBY concerns would tend to support ceiling preemption. Using this basic framework, the article offers a detailed analysis of state regulation of GHG emissions, which industry has argued is preempted by federal law, including the Clean Air Act. This analysis suggests that the primary purposes of the Act, which include controlling negative externalities, taking advantage of resource pooling, and preventing a race to the bottom, do not generally support ceiling preemption. Although resource pooling might support ceiling preemption as a means of strengthening the bargaining position of the Unites States vis-à-vis other countries, this purpose was not a significant concern when the Act was adopted. The need for uniformity supports limited ceiling preemption for mobile sources of emissions (i.e., cars and trucks), which are subject to express preemption provisions. Uniformity concerns are less significant for stationary sources, and there is little evidence to support broad ceiling preemption on this basis. Finally, NIMBY concerns were not an important factor in the adoption of the Clean Air Act. The article also considers the implications of the framework for preemption under a cap and trade program, which is the likely form that any federal regulatory program for GHG emissions would take

A Collective Action Perspective on Ceiling Preemption By Federal Environmental Regulation: The Case of Global Climate Change

Full-text available at SSRN. See link in this record.In an era of regulatory skepticism, proponents of regulation in general and environmental regulation in particular face a number of new political and legal hurdles, particularly at the federal level. Frustrated with federal inaction or weak federal regulation, it is increasingly common for states and local governments to adopt environmental laws that seek to provide greater environmental protection. The critical question is when federal environmental law provides a ceiling, preempting such state regulatory programs. In this article, which is part of a forthcoming symposium on federal preemption in the Northwestern Law Review, Professors Glicksman and Levy develop a framework for evaluating ceiling preemption issues in the environmental law arena and then apply it to the specific problem of state regulation of greenhouse gas (GHG) emissions that contribute to global climate change. Traditional preemption doctrine emphasizes the purpose of federal laws, which is relevant to all three major forms of preemption: express, occupation of the field, and conflict preemption (including state laws that are an obstacle to the accomplishment of the object and purpose of federal law). Few environmental statutes expressly preempt more stringent state laws. The values of federalism, political process theory, and textualism support a presumption against implied preemption that should only be overcome if there is a direct conflict between federal and state law or state regulation would compromise a clear and primary purpose of a federal statute. The question then becomes which environmental purposes might provide sufficient justification to overcome the presumption and support ceiling preemption. Federal environmental law emerged largely as a response to various collective action problems that tended to prevent states, acting individually, from adopting appropriate environmental laws. Such concerns included negative externalities, the need for resource pooling, the "race to the bottom" phenomenon, the rationalization of standards (uniformity), and the so-called NIMBY (not in my back yard) problem. In considering the problem of ceiling preemption, then, it makes sense to ask whether the collective action problem in question is implicated by state regulation that is more protective of the environment than federal regulation. In general terms, negative externalities, resource pooling issues, and the race to the bottom can be expected to cause underregulation by states, and thus do not support ceiling preemption. In contrast, uniformity and NIMBY concerns would tend to support ceiling preemption. Using this basic framework, the article offers a detailed analysis of state regulation of GHG emissions, which industry has argued is preempted by federal law, including the Clean Air Act. This analysis suggests that the primary purposes of the Act, which include controlling negative externalities, taking advantage of resource pooling, and preventing a race to the bottom, do not generally support ceiling preemption. Although resource pooling might support ceiling preemption as a means of strengthening the bargaining position of the Unites States vis-à-vis other countries, this purpose was not a significant concern when the Act was adopted. The need for uniformity supports limited ceiling preemption for mobile sources of emissions (i.e., cars and trucks), which are subject to express preemption provisions. Uniformity concerns are less significant for stationary sources, and there is little evidence to support broad ceiling preemption on this basis. Finally, NIMBY concerns were not an important factor in the adoption of the Clean Air Act. The article also considers the implications of the framework for preemption under a cap and trade program, which is the likely form that any federal regulatory program for GHG emissions would take

Agency-Specific Precedents

Full-text available at SSRN. See link in this record.As a field of legal study and practice, administrative law rests on the premise that legal principles concerning agency structure, administrative process, and judicial review cut across multiple agencies. In practice, however, judicial precedents addressing the application of administrative law doctrines to a given agency tend to rely most heavily on other cases involving the same agency, and use verbal formulations or doctrinal approaches reflected in those cases. Over time, the doctrine often begins to develop its own unique characteristics when applied to that particular agency. These “agency-specific precedents” deviate from the conventional understanding of the relevant principles as a matter of administrative law and raise fundamental questions for administrative law scholars and practitioners. Our central thesis is that agency-specific precedents are a manifestation of the “silo effect,” a phrase commonly used in the literature concerning the operation of large organizations to describe the tendency of subdivisions to develop their own bureaucratic imperatives that create obstacles to information sharing and other forms of cooperation. After describing the emergence of administrative law as a body of generally applicable legal doctrine and introducing the silo effect and the related concept of information silos, the article presents five case studies of agency-specific precedents: (1) the treatment of “interpretive regulations” promulgated by the IRS; (2) the “reasoned decisionmaking” concept in judicial review of the FCC (and a few other agencies); (3) the requirement that EPA must docket ex parte communications of “central relevance” in rulemaking; (4) the treating physician rule in judicial review of SSA disability determinations; and (5) cases limiting the NLRB’s ability to overturn an administrative law judge’s credibility determinations based on demeanor. These agency-specific precedents cannot be fully explained by agency-specific statutes, programs, or practices that prompt specific judicial responses. We postulate that agency-specific precedents are a manifestation of the silo effect and discuss how the dynamics of information costs, the specialized bar, and the process of judicial review tend to produce them. Precedents are a type of information that is costly to gather and apply and whose value in litigation depends on its precedential weight or authority. Because attorneys who practice in most administrative law fields tend to be specialized, the information costs of finding and citing cases involving the agency are much lower than the costs of doing so for cases involving other agencies, while the precedential weight of decisions involving the agency will be higher than that of cases involving other agencies. Courts rely heavily on the attorneys litigating a case to gather and present information concerning precedent, so the information costs of finding and analyzing precedents outside the agency in question will be passed along to the courts. In addition to considering the dynamic that contributes to the formation of agency-specific precedents, we discuss their normative implications in terms of consistency with statutory provisions (particularly the APA), promoting legal certainty, and the development of optimal administrative law doctrines. Although the balance of costs and benefits from agency-specific precedents varies according to the circumstances, some agency-specific precedents would appear to be unjustified. We suggest that greater attention to the phenomenon by attorneys, courts, and scholars would help to break down such undesirable agency-specific precedential silos

Climate Change Adaptation: A Collective Action Perspective on Federalism Considerations

Full-text available at SSRN. See link in this record.The buildup of greenhouse gases in the atmosphere and the likely growth in future emissions due to increased energy consumption in developing nations have convinced many scientists and policymakers of the need to develop policies that will allow adaptation to minimize the adverse effects of climate change. Climate change adaptation is designed to increase the resilience of natural and human ecosystems to the threats posed by a changing environment. Although an extensive literature concerning the federalism implications of climate change mitigation policy has developed, less has been written about the federalism issues arising from climate change adaptation policy. This article provides a framework for determining how to structure a policy to facilitate adaptation to climate change that assigns appropriate roles to all levels of government. In particular, the article addresses three questions. First, when is participation by the federal government in directing climate change adaptation policy appropriate? Second, should the federal government set a floor that requires participation by, or at least conformance with federal requirements, by states and localities? Third, should the federal government ever displace state and local adaptation responses based on the threats they pose to federal interests? Collective action principles can assist in answering these questions and determining the proper institutional arrangements for dealing with climate change adaptation. It is inevitable that clashes of interest will develop between jurisdictions when desired resources are scarce or efforts by one jurisdiction to avoid the undesirable aspects of climate change shift the burden of those changes to other jurisdictions. These conflicts are likely to arise both when states and localities fail to do enough to anticipate and react to climate change and when they do “too much.” In these instances, federal intervention is desirable. The presence of transboundary externalities and race-to-the-bottom considerations are the most likely justifications for establishment of a federal floor, and conditional funding or cooperative federalism arrangements may be useful in avoiding excessive intrusion on state and local discretion. While most of the collective action rationales for a federal presence in environmental law are not likely to justify preemption of state and local adaptation measures, transboundary externalities, the need for uniformity, and the proclivity of state and localities to foist problems arising from climate change on other jurisdictions may do so in limited instances