The politics of preemption: an application of preemption jurisprudence and policy to California Assembly Bill 1493.

• Author: Colangelo, Sara A.

1. INTRODUCTION A. Could the Events of 2005 Modify the Application of Preemption? II. AB 1493 AND POSSIBLE CONFLICTS WITH THE CLEAN AIR ACT AND THE ENERGY POLICY AND CONSERVATION ACT PREEMPTION PROVISIONS A. Assembly Bill 1493: The California Climate Change Law B. The Preemption Provision of the Clean Air Act and AB 1493 C. The Preemption Provision of the Energy Policy and Conservation Act and All 1493 III. PREEMPTION JURISPRUDENCE IN the SUPREME COURT A. Historical Development and Principles of Preemption Jurisprudence B. Related Doctrinal Trends Threatening AB 1493 IV. PREEMPTION PROVISIONS OF THE ENERGY POLICY AND CONSERVATION ACT AND THE CLEAN AIR ACT: POLITICS AND PREEMPTION APPLIED A. Preemption Can Be Political: Agencies, Administration Policy, and Congress B. The EPCA Preemption Provision: The Strongest Challenge to AB 1493 C. The CAA Preemption Provision: Allowance for California Dreamin'. D. Congressional Intent Behind the EPCA and the CAA: Reconciling Conflicting Statutory Schemes V. CONCLUSION I. INTRODUCTION

   Remarking on the difficulty of deciding questions of preemption, the Supreme Court has acknowledged that preemption lacks an "infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula." (4) Preemption jurisprudence illustrates a compromise between concerns for federalism and states' rights, and concerns for uniformity in matters of the national economy. The current debate over domestic energy policy and climate change initiatives highlights the challenge in allocating power between the federal government and the states. Energy, environmental, and automotive regulations typify such concerns because they encompass traditional state domains of health and safety, and federal domains of national and transnational industries. Thus, as states begin undertaking individual and collective action directed at the issue of climate change, questions of preemption surface to challenge the constitutionality of such action.

   The legislature, judiciary, and the public lack consensus over the appropriate allocation of authority for climate change regulations. Lawmakers and agencies at the state and federal level vacillate between claims of coexistent or exclusive authority. Hence, now that previous issues of scientific uncertainty appear to be resolved with some finality and unanimity regarding human contribution to global warming, demarcating governmental authority over climate change initiatives has emerged as the latest roadblock for further action.

   For years, much of the international community has expressed significant concern over the impacts of climate change. (5) Now, due to certain events in 2005, such as hurricanes Katrina and Rita, and after mounting evidence in the last few decades, U.S. citizens are also expressing a growing apprehension regarding climate change. (6) In particular, as a response to the concern of its constituents, California has led the United States since the 1980s in technology and strategy for mitigating this impending threat. Today, California appears poised to lead the nation in actions targeted at the transportation sector's impact on global climate change.

   1. Could the Events of 2005 Modify the Application of Preemption?

   Modern U.S. history is replete with examples of a single event or period of time being labeled as the catalyst for significant changes in thinking and behavior. The stock market crash of 1929, events of the 1950s and 1960s giving rise to the environmental and civil rights movements, (7) and the tragedy of September eleventh are but a few examples. Retrospectively, various events, issues, and consequences manifested in 2005 will likely be viewed as such a catalyst, and may well be causal factors for rethinking a variety of political, economic, and legal precedents.

   In 2005 a significant conflux occurred: evolving science, politics, a new federal energy act, and domestic disasters converged. On the issue of global climate change, NASA scientists "confirmed that 2005 was the hottest year ever recorded worldwide." (8) Such issues and events sparked public debate about the United States' energy policy with, arguably, an urgency not witnessed since the 1970s oil embargo. Policies for reducing dependence on foreign oil, for holding or reducing soaring gasoline prices, and for mitigating the effects of climate change now dominate energy policy discourse. (9)

   Thus, the timeframe of 2005 appears to offer a newly polished lens for viewing the merits of preemption challenges to California's latest climate change regulation. The current political climate uniquely influences perceptions of power and of popular sentiment in the climate change debate. For example, although the summer months saw the passage of the Energy Policy Act of 2005, (10) by September critics labeled it as making "us more dependent on foreign oil," when hurricanes Katrina and Rita illuminated and amplified America's energy policy flaws. (11) Moreover, indicating growing concern for climate change on a local level, the bi-partisan United States Conference of Mayors publicly disagreed with the federal government's stand on climate change. In 2005 the group passed the Mayors Climate Protection Agreement aimed at reducing global warming through community action nationwide. (12)

2. AB 1493 AND POSSIBLE CONFLICTS WITH THE CLEAN AIR ACT AND THE ENERGY POLICY AND CONSERVATION ACT PREEMPTION PROVISIONS

   California boasts a history of aggressive climate change and air pollution initiatives. In 1988, California expressed acute concern over climate change impacts on "energy supply and demand, water supply, the environment, agriculture, and the economy." (13) Thus, along with its smog mitigation regulations enacted prior to the Clean Air Act (CAA), (14) California was also among the first states to initiate studies on the trends and potential effects of global warming. The study's results, published in 1991, spurred further action. From creating a greenhouse gas emissions reduction registry subsequently adopted by many states, to developing methods for carbon sequestration, to establishing a Renewables Portfolio Standard Program, climate change mitigation remains enmeshed in the California economic and political agenda. (15)

   1. Assembly Bill 1493: The California Climate Change Law

      California assemblywoman Fran Pavley, sponsor of the most recent greenhouse gas emission legislation, asserts that California is especially "susceptible to some of the impacts of climate change" because of the warming temperatures' potential to exacerbate already dire state pollution problems and for rising sea levels to negatively affect the 1,100 miles of coastline. (16) Thus, AB 1493 passed in 2002, after a survey found that "81% of Californians supported a state law requiring automakers to reduce car greenhouse gas emissions by 2009." (17) Indicating a compromise between environmental and economic interests, the legislation and regulations aim to "achieve the maximum feasible and cost-effective reduction of greenhouse gas emissions ... [while] taking into account environmental, economic, social, and technological factors." (18)

      The California Air Resources Board (CARB) was required to set forth by January 1, 2005, regulations to reduce greenhouse gas emissions, which would apply to 2009 model year cars and light trucks. Specifically, the reductions use 2000 as the baseline model year, allowing manufacturers who have previously reduced tailpipe emissions to receive credit for their early efforts. (19) Moreover, the climate initiative describes both broad mandates and specific restrictions for reaching its goal of a thirty percent reduction in greenhouse gases by 2016. The criteria for the new standards are: 1) the standards must be "capable of being successfully accomplished within the time provided ... taking into account environmental, economic, social, and technological factors;" 2) the standards must be "economical to an owner or operator of a vehicle;" and 3) the legislature must consider "the impact the regulations may have on the economy of the state, including ... automobile workers and affiliated businesses in the state." (20) These directives must be achieved notwithstanding regulatory restrictions imposed on CARB by the bill itself. Perhaps to weaken various preemption challenges or to circumvent other potential concerns including safety, the following prohibitions also apply. CARB cannot: 1) impose additional fees or taxes on "any motor vehicle, fuel, or vehicle miles traveled," 2) ban the sale of "any vehicle category" (such as sport utility vehicles), 3) require a "reduction in vehicle weight," 4) reduce speed limits, or 5) impose mandatory reductions on "vehicle miles traveled." (21)

      As posited above, energy, economics, and the environment remain at the forefront of public policy discourse. The complementary and conflicting interactions among these arenas have resulted in commendations for and critiques of AB 1493. Both former Governor Davis and current Governor Schwarzenegger supported the bill, and Governor Schwarzenegger vowed to protect it from legal challenges. (22) Governors throughout the country have also lent support by declaring their intention to adopt the emissions standards through the CAA's allowance for states to choose either federal or California emission standards. (23) In addition, assemblywoman Pavley's "partial list" of bill supporters includes:

      over 100 environmental, public health and business groups, including Physicians for Social Responsibility, American Lung Association, ... California Ski Industry Association, Environmental Entrepreneurs, Union of Concerned Scientists, Sierra Club California, Coalition for Clean Air, Natural Resources Defense Council, Latino Issues Forum, ... Friends of the Earth, and regional air and water districts. (24) Notwithstanding this support, representatives...