University of San Diego

San Diego Journal of Climate & Energy Law


This Article starts in Part II by reviewing the basic anticipated design elements of federal climate legislation, then it reviews the substantial regulatory failure risks inherent in such climate change legislation. It then turns in Part III to analysis of preemption choices. The Article follows in Part IV by examining preemption jurisprudence, especially the growing risk of broad preemptive reads of federal law, and demonstrating how statutory uncertainties regarding preemption could result in subsequent interpretations substantially expanding the law's preemptive impact. ... Furthermore, as discussed in Part V, overlap and interaction of concurrent federal, state, and local climate change laws creates an array of benefits. This Article, therefore, concludes that federal climate legislation should adopt an anti-preemptive norm, with specific language preserving state and local legal turf.
The Article closes in Part VI by suggesting that still inevitable conflicts will arise, but that such preemption disputes over climate-related regulation, whether raised by governments or private actors, should be analyzed in accordance with strongly anti-preemption statutory criteria.