The Twin Environmental Law Problems of Preemption and Political Scale

This is a daunting moment for the United States environmental movement. Since 2017, it often seems that federal environmental law is being systematically dismantled—most aggressively by the executive branch, but with tacit support from much of the sitting legislature, and likely with increasing support from the judiciary as well. For environmentalists, the assault on the regulatory accomplishments made over decades of previous lawmaking is cause for grief, but it also compels preparation for the challenges yet to come. This chapter advises environmentalists to resist federal preemption of state regulation and to think creatively about how to accomplish the goals of national-level policy without the benefit of federal authority. The immediate federalism-related challenge is to ensure that the campaign to alter the fundamentals of federal environmental law is not partnered with a campaign to block state and local efforts to fill the resulting regulatory void through preemption. Illustrating this danger with current efforts to eliminate the Clean Air Act’s “California Waiver,” Part I warns environmentalists to be especially on guard against the expansion of ceiling preemption. Ceiling Preemption perverts the customary use of federal preemption to ensure minimum national environmental quality standards into maximum standards that restrict regional efforts to do better. To protect state and local autonomy to exceed minimum standards, advocates should also seek the inclusion of savings clauses in new federal statutes and regulations, and they should advocate for the judicial presumption against preemption where these issues are litigated. With the diminishing force of federal environmental law, however, advocates must think more seriously about how to continue pursuing solutions to national-level environmental problems by means other than federal authority. Part II assesses the possibilities for coordinated action beyond federal law to address large-scale environmental problems. It considers uniform regional governance using model rules, such as the Sustainable Development Model Code, and even collective private governance, coordinated by non-governmental agents such as homeowner associations and professional organizations. In many cases, these options provide a second-best strategy, chosen by necessity when first-best options are unavailable. Nevertheless, they are better than no strategy, and in some cases, may new provide tools for environmental engagement that could complement or even exceed what is possible under federal law alone