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. . What Is Preemption?. The Supremacy ClauseARTICLE VI Section II U.S. Constitution?The Constitution and the laws of the United States which shall be made in Pursuance thereof; and all treaties, or which shall be made, under the Authority of the United States shall be the Supreme Law of the Land?
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1. Are state attempts to regulate CO2 emissions permissible, or preempted by the Clean Air Act (CAA)? Clif Cottrell
Matt Blackstock
Michael Yates
John Doumany
2. What Is Preemption? The Supremacy Clause
ARTICLE VI Section II U.S. Constitution
“The Constitution and the laws of the United States which shall be made in Pursuance thereof; and all treaties, or which shall be made, under the Authority of the United States shall be the Supreme Law of the Land…”
3. Express Preemption When Congress explicitly states in the statute “we hereby preempt” other state and local regulations.
4. Implied Preemption Conflicts Preemption: When the state or local regulation conflicts with the federal. States cannot have less stringent rules than the Federal Government.
The state and federal regulations cannot be mutually exclusive.
Where not preempted, states may have more stringent regulations than the federal government.
State law cannot impede the goal or objective of a Federal act.
5. Implied Preemption Occupation of the field
Must look at congressional intent
Decide whether the federal law was meant to be exclusive in that area
6. Police Powers Where congress has not legislated on an issue, the states are free to pass regulations concerning environmental, health and safety issues.
These are commonly known as state “police powers.”
7. State Rights in the CAA: Section 116 “Retention of State Authority”
Ability to Regulate
Level of Regulation
8. Expanding on Section 116 Section 233- Can adopt identical aircraft emissions standards
Section 111- Comparable New Source Standards
Section 211- Comparable Fuel Additive Standards
9. CO2 in the CAA Section 112- List of Hazardous Pollutants
196 Compounds on list (not CO2)
Section 103 (g) (1)- Research and Tech. Program to develop “non-regulatory” strategies for pollution prevention: carbon dioxide listed as research topic
10. Why States Are Not Preempted From Regulating CO2 Not Expressly Preempted
Not Impliedly Preempted
11. Not Expressly Preempted CO2 not expressly regulated in the CAA
CO2 mentioned in only one portion of the CAA
Section 103(g)
CO2 only listed as a research gas
Non-regulatory in nature
12. EPA General Counsel Explicitly Refuses to Classify CO2 as an Air Pollutant In 2003 the EPA’s General Counsel reversed a position taken by the Agency’s two previous Attorney Generals when he argued that,
1. The EPA does not have the authority to regulate CO2; and
2. CO2 does not fall into the CAA’s definition of ‘air pollutant.’
13. Not Impliedly Preempted Conflicts Preemption
There is no Federal Regulation within the CAA that would conflict with state regulation
Occupation of the Field
State law is preempted when Congress intends to “occupy the field” through a pervasive regulatory scheme or when there is an explicit conflict with a federal statute where it is impossible to comply with both the state and federal law
The CAA is a comprehensive regulatory scheme that explicitly excludes CO2
Congressional Intent was explicitly to exclude CO2 regulation
14. Not Preempted By Foreign Affairs In 2001, the United States withdrew from the Kyoto Protocol. Since then, the Administration has not advocated for any international agreement or domestic legislation that would impose mandatory limits on the emission of greenhouse gases
Without a controlling law indicating that state GHG regulations constitute a “matter of foreign policy” or some form of direct interaction between the states and foreigners, applying dormant foreign affairs preemption to state GHG regulations would dangerously expand a doctrine that already lacks clear limits
15. Case Law State of Connecticut, et. al. v. American Electric Power (2004)
Federal nuisance case currently on appeal from the Southern District of New York
The suit alleged that the companies' carbon dioxide emissions from coal-fired electric power plants contributed to global warming and sought an injunctive order limiting the amount of CO2 emissions from the utilities' plants in eight states
The Court held that explicit statements of both Congress and the Executive branch over the years on the issue of global climate change in general and the federal government's specific refusal to impose limits on carbon dioxide emissions in the CAA made clear that making the initial policy determination as to how to address global climate change was vested in the other political branches and not the courts
16. Political Considerations Unlikely that judge will hold in favor of Federal preemption until either the EPA or Congress speaks directly on the issue
Environmental Concerns
Federalism
Conservative tendency to defer to states for lawmaking
Minnesota, Wisconsin, Oregon, and New Hampshire currently have GHG regulatory laws on the books
17. New Motor Vehicles Exception
18. CAA Explicitly Preempts States §209(a) of the Clean Air Act: “No State…shall adopt…any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines…”
Although “emissions” is not defined in the CAA, §202(a)(1)’s reference to “emissions of any air pollutant” suggest a broad interpretation.
19. California CO2 Regulations
20. California CO2 Regulations 2002: California passes law regulating CO2 emissions on new motor vehicles beginning in 2009
Central Valley Chrysler Jeep, Inc. v. Witherspoon
Arguments against California law:
Preempted by CAA §209(a). But there’s a possible waiver under CAA § 209(b)(1)
Preempted by EPCA
21. Old Cars Despite the preemption on state regulation of CO2 emissions from new motor vehicles, states may still regulate CO2 emissions from in-use on-road vehicles.
22. Conclusion The EPA has refused to classify CO2 as an “air pollutant” under the CAA, thus leaving such regulation to the states.
States are neither expressly nor impliedly preempted from regulating CO2 emissions from stationary sources, such as power plants.
States may also regulate CO2 emissions from in-use on-road motor vehicles.
The CAA does, however, preempt states from regulating CO2 emissions from new motor vehicles.