Obama's Sensible Preemption Policy

• Author: John Pendergrass
• Position: Director of ELI's Center for State, Local, and Regional Environmental Programs
• Pages: 10-10

Page 10 ❧ THE ENVIRONMENTAL FORUM Copyright © 2009, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, July/August 2009

By John Pendergrass

Obama’s Sensible

Preemption Policy

President Obama restored to the

states their traditional preroga-

tives in governing their citizens when,

on May 20, he signed a memoran-

dum establishing his administration’s

policy against federal preemption of

state rules. His memo to his cabinet

and other heads of executive agencies

begins by reciting the importance of

states in the American constitutional

order: “roughout our history, state

and local governments have frequent-

ly protected health, safety, and the en-

vironment more aggressively than has

the national government.”

Obama also noted that, despite the

continued applicability of the Clinton

executive order on federalism (13132),

in recent years agencies have asserted

that regulations preempt state law ab-

sent express preemption by Congress.

In contrast, Obama’s general policy is

to preempt state law “only with full

consideration of the legitimate pre-

rogatives of the states and with a suf-

f‌icient legal basis for preemption.”

Beyond this general policy, Obama

directed the heads of departments or

agencies to refrain from making state-

ments in the preambles to regulations,

which explain the purpose, basis, and

intent of regulations, that the rule is

intended to preempt state law unless

the codif‌ied regulation actually in-

cludes specif‌ic preemption provisions.

In other words, “do not try to achieve

preemption indirectly, if you are go-

ing to do so, do it expressly.” He also

directed agency heads to not include

preemption provisions in regulations

except where they are legally justi-

f‌ied, including the legal principles

described in the federalism execu-

tive order. Finally, the president told

agency chiefs to review regulations is-

sued in the past 10 years, going back

into the Clinton administration, that

contain provisions or preamble state-

ments intended to preempt state law

to determine if they are legally justi-

f‌ied. If not, the agency should take

appropriate action such as amending

the regulation.

Obama’s policy recognizes the dif-

ferences among the citizens of dif‌fer-

ent states and approves of the willing-

ness of citizens in some states to regu-

late themselves based on their shared

values. e memo is a clear signal of a

shift toward the states in the continual

balancing of power between the feder-

al executive power and the states. But

the memo is only a general statement

of policy, specif‌ic changes in prac-

tice will depend on

how department and

agency heads imple-

ment the policy.

Although the

Bush administration

sought to preempt a

variety of state laws,

and Obama’s policy applies to all ex-

ecutive department agencies, environ-

mental rules have been a focal point

in the debates over preemption, as

chronicled in this column since its

inception. One example of the Bush

policy in action was the National

Highway Traf‌f‌ic Safety Administra-

tion’s assertion that California’s green-

house gas emissions standards for cars

were preempted by NHTSA’s national

fuel ef‌f‌iciency standards. e Obama

administration recently obviated that

issue by reaching agreement with the

state, automobile manufacturers, and

the federal agencies over ef‌f‌iciency

standards that the state would agree

met its GHG standards.

e three-way nature of that agree-

ment illustrates that industry is often

a signif‌icantly interested party on

the side of federal preemption, while

environmental groups have tended

to favor states in their opposition to

preemption. Industry fears being re-

quired to deal with as many as 50 sets

of regulations, some of which may be

contradictory. Environmental groups

hope that the state or states that are

willing to regulate more stringently

will become the model for many states

or, ultimately, for federal minimum

standards. In this case the result was

uniform minimum national standards

equivalent to the state’s more stringent

ones, though on a slightly less ambi-

tious schedule — all parties were able

to meet fundamental goals.

Obama’s policy is, however, lim-

ited to the executive branch. Con-

gress remains free to preempt state

laws, which is both more legitimate

and appropriate. e Constitution

contemplates that the mechanism for

preempting states from acting in their

sovereign capacity is through duly en-

acted federal legislation. e current

version of climate

change legislation

would do just that,

preempting state cap-

and-trade programs

for f‌ive years until the

federal system could

become operative.

Although called a moratorium in the

federal bill, the states that have already

adopted cap-and-trade programs ob-

ject to this version of preemption, ar-

guing that their programs are needed

during that interim period.

President Obama has shifted the

fulcrum for the seesaw on which the

states and federal government balance

their interests in regulating to protect

the health, safety, and welfare of the

citizens of the several states. Now be-

gins the fun as the two sides see how

the newly conf‌igured seesaw swings up

and down and eventually balances.

John Pendergras s is Dir ector of ELI’s

Center for State, Local, and Regional Envi-

ronmental Programs. He can be reached at

pendergr ass@eli.org.

A  S

e memo is only a

statement; changes in

practice will depend on

implementation