Preemption and Theories of Federalism

American government is an experiment in redundancy, with powers and duties shared among federal, state, and local decision makers. The arrange­ment is designed to divide power, maximize self-rule, and foster innovation, but it also can breed confusion. In the areas of public safety and environ­mental protection, state and federal leaders (to name the two most active players in these disputes) are often seen jockeying for the inside track, hoping to secure the resources or authority needed to promote their views of the public good or gain politically. To outside observers, the best outcomes are not obvious. For example, should the federal government be the exclusive regulator of automobile pollution, as it is of automotive fuel efficiency, or should (as U.S. Senators from California successfully argued in 1967) California also be allowed to set its own unique, more stringent standards? Should New Jersey be able to issue regulations requiring chemical plant managers to consider safer technology to reduce the risks of terrorism incidents, or should those requirements be imposed only if the U.S. Department of Homeland Security allows them? Should state judges or juries be allowed to conclude, applying state tort law, that a pharmaceutical company has negligently failed to warn patients of drug side effects if the U.S. Food and Drug Administration has already approved the drug label? Deciding when federal law trumps state law can be a complicated process, involving the legislature, the judiciary, and even executive agencies. The guiding principles always include federalism

Preemption and Theories of Federalism

American government is an experiment in redundancy, with powers and duties shared among federal, state, and local decision makers. The arrange­ment is designed to divide power, maximize self-rule, and foster innovation, but it also can breed confusion. In the areas of public safety and environ­mental protection, state and federal leaders (to name the two most active players in these disputes) are often seen jockeying for the inside track, hoping to secure the resources or authority needed to promote their views of the public good or gain politically. To outside observers, the best outcomes are not obvious. For example, should the federal government be the exclusive regulator of automobile pollution, as it is of automotive fuel efficiency, or should (as U.S. Senators from California successfully argued in 1967) California also be allowed to set its own unique, more stringent standards? Should New Jersey be able to issue regulations requiring chemical plant managers to consider safer technology to reduce the risks of terrorism incidents, or should those requirements be imposed only if the U.S. Department of Homeland Security allows them? Should state judges or juries be allowed to conclude, applying state tort law, that a pharmaceutical company has negligently failed to warn patients of drug side effects if the U.S. Food and Drug Administration has already approved the drug label? Deciding when federal law trumps state law can be a complicated process, involving the legislature, the judiciary, and even executive agencies. The guiding principles always include federalism

Letting Nature Work in the Pacific Northwest: A Manual for Protecting Ecosystem Services Under Existing Law

In the decades since Congress and state legislatures passed most of the nation\u27s most significant environmental laws, our knowledge about ecosystems has increased dramatically. As ecologists learn more about the complex and dynamic interactions that produce valuable ecosystem services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment. An ecosystem services approach integrates advances in ecology with the law. It fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it depends on public participation to prioritize those services that the public values most, thus ensuring long-term public support for and investment in achieving the identified goals. This white paper defines the approach and identifies both prerequisites and principles for implementing it. For example, policymakers and advocates should consider principles of ecological integrity, fairness, and resilience when selecting legal tools to protect ecosystem services. The paper then applies the ecosystem services approach in the context of floodplain restoration, focusing on flood hazard mitigation and the broad range of services provided by floodplains. It marks the beginning of a long-term discussion on how to adapt environmental, natural resources, and other laws to our dependence on functioning, dynamic ecosystems

Let the People Speak: Notice-and-Comment Rulemaking (Lessons from the Controversial New Source Review Proposal of the Clean Air Act)

Sections 165 and 173 of the CAA specifically note that any change in pollution levels from an existing source triggers NSR and accompanying technological upgrades. Nothing in the rulemaking\u27s proposed definition based on cost of changes or maintenance address this clear language of Congress.---Victor B. Flatt, A.L. O\u27Quinn Chair in Environmental Law, University of Houston Law Center, written comments submitted to EPA on February 26, 2003. Taken together, the two proposed exclusions from NSR would allow many grandfathered air polluters to operate indefinitely without installing state-of-the-art pollution control equipment. This would contravene the purpose of NSR, which is to ensure that grandfathered facilities eventually do improve their environmental performance.---Michael M. O\u27Hear, Assistant Professor, Marquette University Law School, written comments submitted to EPA on March 2, 2003. The CAA provides that when existing sources change their facilities in ways that increase their emissions they should be treated as new sources. That should be the end of the matter. —Mark Squillace, Professor of Law, University of Toledo College of Law, written comments submitted to EPA in March 2003. The proposed rule undercuts both the plain meaning of the CAA and Congress’s underlying intent. It breaches the plain meaning because “modification” is literally defined as “any physical change” that “increases the amount of any air pollutant.” Courts take this language literally, permitting exceptions only in deminimus situations [citations omitted]. —Robert R.M. Verchick, Ruby M. Hulen Professor of Law and Urban Affairs, and students of the University of Missouri-Kansas City School of Law, written comments submitted to EPA on March 31, 2003

Beyond the Courts of the Conqueror: Balancing Private and Cultural Property Rights under Hawai\u27i Law.

Abstract Forthcoming

The Octopus in the Parking Garage: A Call for Climate Resilience

From fire to flood, from pounding heat waves to sea life stranded in a parking garage, Americans are seeing the face of climate breakdown. Cutting carbon pollution helps us avoid the very worst. But for risks we can’t avoid, we have to manage them. That’s especially true for poorer and underserved communities. Best-selling author and climate law expert, Rob Verchick will make the case for “climate resilience”—in our households, in our towns and cities, and in our legal system. Whether paddling through Louisiana’s bayous, hiking among Joshua trees in the Mojave Desert or diving off Key Largo with citizen scientists working to restore coral reefs, Verchick explores the range of problems we face and the many creative solutions that we can embrace and deploy. Speaker Bio Robert Verchick is a legal scholar in climate change and disaster policy who designed climate-resilience programs in the Obama administration. He is the Gauthier-St. Martin Eminent Scholar and Chair in Environmental Law at Loyola University New Orleans and the 2023-24 Francis B. Cashin Fellow at the Harvard Radcliffe Institute. Verchick has written more than 60 articles and four books. His best-selling book, The Octopus in the Parking Garage: A Call for Climate Resilience, was a winner of a 2023 Choice Award for Outstanding Academic Title. Verchick has taught as a visiting professor at Aarhus University, Peking University and Yale University. In 2009 and 2010, he served in the Obama administration as deputy associate administrator for policy at the US Environmental Protection Agency. He serves as president of the board of the Center for Progressive Reform. His podcast, Connect the Dots, is in its eighth season. He is now working on his next book, which is about how we can harness the power of government, science and local wisdom to rescue the oceans from climate breakdown