On Federal Preemption, the Supreme Court and Climate Change

A new post on the on the Constitutional Accountability Center’s climate change blog lays out what’s at stake for state climate change laws in two upcoming Supreme Court cases on federal preemption.

Intrigued, I called up Doug Kendall, president of CAC, a progressive think tank and law firm, to get a little more information on the issue.

On Wednesday, the Supreme Court will hear oral arguments in Williamson v. Mazda Motors. The Supreme Court, in the case, will decide whether a federal law establishing a minimum safety standard — in this case with seat belts — preempts a more stringent state standard (here’s more on the case). Next week, the Supreme Court will hear another case related to federal preemption. In the case, AT&T Mobility LLC v. Concepcion, the Supreme Court must decide whether the Federal Arbitration Act preempts a California state law that appears to make it illegal for the phone company to give customers a free phone for signing up for new service and then charge the customer sales tax based on the cost of the phone (here’s a great summary of the case).

While both of these cases are quite technical, the thing you need to know is that the Supreme Court’s decision (which won’t come for three or four months) could have major implications for climate change legislation. If the Supreme Court determines that federal law preempts state law, many stringent state climate and energy laws could be replaced by weaker federal ones in the future.

For the most part, environmentalists and clean energy advocates see the states as incubators for innovative energy/climate policy. Normally, states are able to pass more progressive climate laws than Congress (see California). And then, over time, the federal government passes its version. Because of the diversity of opinion in Washington, federal legislation and regulation often get watered down.

“In terms of the broader picture here, states have historically led and that action brings industry to the federal table to avoid a patchwork of actions at the state level,” Kendall told me. “And that leads to a solution. I think industry is trying to short-circuit that process.”

Kendall said he is “optimistic” that the Supreme Court will allow state laws to stand in both cases. “The Supreme Court has cut back on implied preemption,” he said. “They’ve tightened the rules for finding that state law is displaced by federal law.”

And he pointed to efforts by the Obama administration to defer to strict state laws, an about-face from the Bush administration, which attempted to preempt state laws. The administration’s policy on preemption, which gives states the upper hand clashes with criticisms that President Obama employs a top-down approach to governing, he said. “They’ve reversed a top-down federal approach by the Bush administration,” Kendall said.

Though he’s optimistic that the Supreme Court will support state laws, he is realistic about a possible “worst-case scenario.”

“The worst-case scenario in terms of congressional action is that you get a very weak response to climate change that nonetheless preempts states from passing their own solutions,” he said.