San Diego Journal of Climate & Energy Law
Abstract
Humanity is on the defensive against climate change, and state and local governments are the front line. Regrettably, Americans have waited too long for air cover in the form of federal climate regulations despite an established history of federal environmental action only emerging from the ashes of headline-grabbing catastrophes. Americans cannot wait on federal legislation to tackle the global and unprecedented problem of climate change. It will come far too late.
State and local governments’ historic police power includes protecting environmental health and public welfare, but decades of successful federal regulation have atrophied its use. Delayed by federal success, state and local entities have only recently mobilized against climate change. In response, opponents of climate legislation are invalidating beneficial bottom-up regulation through misplaced federal preemption challenges. This misguided tactic further discourages state action, leading to a recursive loop of legal atrophy.
Realistically, the opposite should be true. By directing state and local governments to act in an area of traditional police power, these applications of federal preemption become unconstitutional commandeering, violating fundamental principles of federalism.
A defensive combination of the anticommandeering doctrine with the constitutional doubt canon would reinforce both local and federal environmental laws. This Article demonstrates this defensive combination by evaluating the recent preemption challenge to a municipal natural gas ban in California Restaurant Association v. City of Berkeley. Additionally, this paper explores the important role that subfederal governments will continue to play in effective responses to this climate emergency.
Recommended Citation
Tyler Hall,
Anticommandeering Climate Action: Defending the Necessity of Subfederal Planet-Saving Legislation,
16
San Diego J. Climate & Energy L.
33
(2025)
Available at:
https://digital.sandiego.edu/jcel/vol16/iss0/3
