Null preemption.

• Author: Nash, Jonathan Remy
• Position: Motor vehicle greenhouse-gas emissions

How free should the federal government be, not only to preempt state regulatory law, but also to choose itself to adopt no law on point ? Such instances of "null preemption" have been historically rare, but now are occurring with greater frequency. Consider that the Environmental Protection Agency (EPA) refused to allow states to impose standards governing motor vehicle tailpipe greenhouse-gas emissions, and also argued that it could not, or alternatively would not, issue any federal regulations. Further, though the Supreme Court rejected the EPA's arguments, two years have since passed with no EPA action.

The regulatory voids resulting from such instances of "null preemption" are rarely normatively justified. Even if states lack a normative justification for regulating, still the structure of the federal system means that null preemption offends states' sovereign prerogative to protect their citizens. Moreover, it is far more likely, not that the states lack any normative justification, but that there is a normative dispute between federal and state government over the propriety of regulation. Only rarely--such as when the federal government seeks to avoid interstate externalities and the cost of national regulation outweighs its benefit--will null preemption be justified.

Null preemption should accordingly be limited. Congress can statutorily limit federal regulators" freedom to engage in null preemption. Courts should react skeptically to assertions of null preemption, especially where regulators make such assertions without indication of supporting congressional intent.

INTRODUCTION I. EXAMPLES OF NULL PREEMPTION A. A Case Study in Null Preemption: The Regulation of Motor Vehicle Greenhouse-Gas Emissions B. Other Examples of Null Preemption II. THE CONTOURS OF NULL PREEMPTION A. What Null Preemption Is Not B. The Two Steps of Null Preemption: Preemption and a "Zero Level" of Federal Regulation 1. The Actors that Effect the Two Steps 2. The Two Steps of Null Preemption C. Typology of Null Preemption 1. Intentional Null Preemption 2. Regulatory-Delay Null Preemption 3. Regulatory-Preemptive-Mismatch Null Preemption 4. Duplicative Regulation Null Preemption III. THE NARROW NORMATIVE CASE FOR NULL PREEMPTION A. Evaluating the Normative Value of Null Preemption B. Normativity and Institutional Choice IV. THE POLITICAL ECONOMY OF NULL PREEMPTION V. PRESCRIPTIONS FOR LEGISLATIVE AND JUDICIAL CONSTRAINT OF NULL PREEMPTION A. Legislative Constraint of Null Preemption B. Judicial Constraints on Null Preemption CONCLUSION INTRODUCTION

How free should the federal government be, not only to preempt state regulatory law, but also to choose itself to adopt no law on point? Federal preemption of state law has drawn a great deal of academic attention in recent years. (1) Commentators have drawn distinctions between "floor" preemption and "ceiling" preemption, (2) and have questioned the validity of preemptions effected not by Congress, but by federal agencies. (3) Throughout this literature--and the cases-runs the assumption that preemption involves (1) the preemption of state law (2) by some federal standard. (4)

Both floor and ceiling preemption contemplate that the federal government has established some level of federal regulation. Commentators have not paid much attention to the possibility that the federal government might preempt state law without providing any federal regulation, thus leaving a vacuum. It is this type of setting, which I term one of "null preemption," on which I focus in this Article.

While null preemption has been historically uncommon, recent years have seen more occurrences. Recent litigation involving the regulation of greenhouse-gas emissions from motor vehicles' tailpipes provides an important example. In response to litigation by states to compel the Federal Environmental Protection Agency (EPA) to regulate such emissions, the federal government argued (unsuccessfully in the end) that it lacked authority so to regulate. (5) In the meantime, in litigation involving states' ability to impose limits on such emissions, courts have held that such state laws are preempted unless a waiver is obtained from the federal government. (6) In Massachusetts v. EPA, (7) the Supreme Court ultimately ruled that the EPA had authority to regulate motor vehicle tailpipe emissions; (8) after that, the EPA denied states a waiver to regulate themselves. (9) Taken as a whole, then, the position of EPA (albeit rejected in part by the Supreme Court) was that it lacked authority to regulate motor vehicle tailpipe greenhouse-gas emissions and that, absent a waiver (which it denied), neither did the states. In other words, the position of the federal government was that there was null preemption of motor vehicle tailpipe greenhouse-gas emissions. Moreover, even in the wake of the Massachusetts case, the EPA declined to take regulatory action. (10) Only under the new leadership of the Obama administration--and two years after the Court handed down its decision in Massachusetts--is the EPA preparing to regulate greenhouse-gas emissions. (11)

By depriving states of their ability to regulate and leaving a federal regulatory void as well, null preemption infringes upon states' sovereignty. It also impedes the ability of states to ensure the health and safety of their constituents.

I argue here that suggestions of null preemption should be subject to considerable scrutiny. Still, it is important to understand the scope of my claim in this regard: The fact that null preemption should be viewed skeptically does not mean that regulation should necessarily be favored over the absence of regulation. There may be situations where an absolute absence of regulation--in favor of simple market forces, for example--is normatively desirable. The answer to that question is distinct, however, from the question of which institution or institutions should be vested with authority to decide it. Under our federal system of government, the federal government and state governments have the power to regulate (or to decline to regulate). Null preemption raises the question of when one government--the federal government--should not only decide that it ought not to regulate, but also that it should deprive state governments of the prerogative to make a similar call. (12)

The propriety of null preemption thus boils down to a question of how confident the federal government is that a setting of no regulation is absolutely appropriate. This understanding refines the claim about the rare normative desirability of null preemption. There may be settings where the federal government is convinced that a state government normatively errs by promulgating regulation. Even if the state government lacks a valid normative justification for its regulation, the fact remains that our federal system assumes that benefits arise from generally leaving state governments free to regulate where the federal government declines to do so. Those benefits dissipate when the federal government acts to displace state government regulatory freedom.

But the state may have a normative basis for wishing to regulate.

The federal government may be wrong about the state's lack of normative justification. More likely, there may be a dispute between the federal and state governments as to the proper normative measure or approach. Perhaps the state government does not believe that cost-benefit analysis should justify regulation, while the federal government does; or the state and federal governments agree on the validity of cost-benefit analysis, yet they disagree as to the assumptions underlying that analysis; or the state government takes a more precautionary approach than does the federal government. In such settings, is the federal government justified in unilaterally opting for no regulation?

To be sure, there may be settings where the federal government is justified in giving rise to null preemption. For example, the federal government might have determined that federal regulation is unjustified and also that state regulation would impose substantial externalities on other states. As a general matter, however, null preemption will rarely be normatively justified.

The propriety of null preemption also should turn on the particular federal actors that, it is claimed, have generated the null preemption. Null preemption requires two steps: (1) the choice of no federal regulation, and (2) the preemption of state law by the federal government. (13) Null preemption is more acceptable when the legislature effects both these steps. In contrast, assertions of null preemption should be received more skeptically to the extent that the executive branch has effected these steps. Indeed, considerations of political economy suggest that societal actors may more and more be turning to executive branch actors to attain null preemption when it was previously thought to be unattainable.

I make four broad contributions in this Article. First, I explore the contours of null preemption. I also develop a typology of settings in which null preemption may arise. Professor Robert Glicksman has identified one intentional setting of null preemption, to which I refer as "regulatory inaction null preemption." (14) My comprehensive taxonomy includes null preemption settings that are either intentional or unintentional and accidental, and that are either clear or ambiguous.

Second, I consider the normative desirability of null preemption. I argue that the class of cases in which it is desirable is a small one. Even if the federal and state governments disagree over what is normatively desirable, there will rarely be justification for the federal government to impose its normative values onto state governments and thus to deprive the state governments of their sovereign prerogative. I also apply the normative framework to the various taxonomical settings of null preemption.

Third, I describe the...