As we move toward an almost certain comprehensive federal law to address climate change, increasing attention is being paid to what will happen to state and local climate change and climate change-related programs that have arisen in this country in the law few years. As the symposium demonstrated, California has a particular concern that federal law might block its environmental and climate change policies. ...
... In most areas, almost 40 years of environmental federalism has allowed states to regulate beyond the federal government for the protection of their citizens, and we can examine this history empirically in order to determine whether and in which circumstances preemption is necessary. In particular, we can observe when states have exercised their authority to go beyond federal government protections and how this affects the well-being (economically and environmentally) of the country as a whole. We can then analogize these to climate change policies that currently exist and are subject to the preemption debate.
Victor B. Flatt,
The History of State Action in the Environmental Realm: A Presumption Against Preemption in Climate Change Law?,
San Diego J. Climate & Energy L.
Available at: http://digital.sandiego.edu/jcel/vol1/iss1/5