Proposed emissions bill could preempt state laws
Last week the House Energy and Commerce Committee released a draft of their proposed climate change bill. As a lawyer, and a Californian, one particular part caught my attention: the provision dealing with preemption of state laws that regulate emissions. Since California leads the country in many environmental regulations, and has often come into conflict with the federal government over these laws, it is important to understand this issue.
Very generally, as long as a state’s law does not directly conflict with a federal law, and the state law does not fall into a realm that is solely the responsibility of the federal government (e.g., foreign policy), a state is allowed to regulate issues that the federal government may also be regulating. However, when drafting a bill, Congress may decide, for a number of reasons, that it wishes to explicitly preempt all state law on that subject. If Congress does this, then the state law that deals with the topic of the federal bill is preempted and no longer remains valid.
It has yet to be agreed upon whether the proposed climate change bill will explicitly preempt state laws about emissions, but it is a distinct possibility. (And the preemption provisions are an option included in the draft bill.) Unless this bill is a radical departure from the traditional tendency for federal emissions regulations to be substantially more lenient than those proposed by states like California, this would be a major step backwards.
As is the case with CAFE standards, federal preemption can have a retarding effect on progressive policies. We should not allow this to be the case with something as important as the proposed emissions bill. If this legislation is going to preempt state action on emissions, it better be so stringent and comprehensive that there won’t be the need to create a parallel set of state regulations, as there currently exists with many environmental laws.
Here is a link to the proposed bill’s executive summary.
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