Disaggregating preemption in energy law

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The question of which level of government-local, state, or federal-is best suited to regulate a particular activity or risk is both important and, often, contentious. Judges, legislatures, and scholars frequently debate, for example, who should regulate education policy or the impacts of booming oil and gas development. The values cited for choosing a particular level of governmental control vary dramatically. Supporters of preemption point to the need for uniform regulation and the risk of races to the bottom, while opponents raise the need for government accountability to local voters and the benefits of state and local experimentation. In weighing these competing values, those on all sides of the debate too often treat preemption as an all-or-nothing, binary proposition-nearly total local, state, or federal control, or nearly none. As argued here, this approach is unfortunate because it obscures what should be obvious: in many cases, some aspects of a particular activity are best regulated at the local or state level even if most of them are best regulated by the federal government (and vice versa). Disaggregating the preemption question increases the chance that a court or legislature will allow different levels of government to control different aspects of a regulated activity. This expands the opportunity to achieve different virtues associated with centralized or decentralized control, such as enhancing the accountability of regulation while also providing some regulatory uniformity. The disaggregation approach also encompasses the benefits noted by many New Federalism scholars, such as the checks and balances provided when different levels of government control different aspects of an activity or negotiate for control, and the comparative advantages offered by these different levels of government. Further, by encouraging judicial and legislative consideration of whether lower levels of government should control aspects of a regulated activity, disaggregated preemption can lead to the devolved power and multilevel governance supported by many subsidiarity scholars. Despite these benefits, and despite the fact that the express, conflict, and field preemption doctrines all seem to require a more nuanced approach, in practice courts and legislatures rarely parse the different aspects of regulations to the extent that they could or should. This Article proposes a structural and normative framework for a disaggregated preemption decisionmaking procedure, explaining how courts and legislatures should approach preemption decisions and why this method best captures the range of values ascribed to both centralized and decentralized control. The Article then analyzes recent preemption decisions within this framework, focusing primarily on energy law examples in light of their recent abundance and exploring how decisionmakers using this approach could better address a variety of preemption conflicts.

Original languageEnglish (US)
Pages (from-to)293-350
Number of pages58
JournalHarvard Environmental Law Review
Issue number2
StatePublished - 2016

All Science Journal Classification (ASJC) codes

  • Environmental Science (miscellaneous)
  • Management, Monitoring, Policy and Law
  • Law


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