1. Conservation Law Foundation
www.clf.org
What Space will be left for State
and Local Action by Federal
Climate Legislation?
GLOBAL WARMING II: HOW THE LAW CAN
BEST ADDRESS CLIMATE CHANGE
36th National Spring Conference on the Environment
June 6, 2008
University of Maryland School of Law, Baltimore, Maryland
Seth Kaplan
Vice President for Climate Advocacy
(617) 850-1721
skaplan@clf.org

2. About CLF
• Founded in 1966, CLF uses legal advocacy,
science and economics to protect the people
and environment of New England.
• Four program areas:
 Clean Energy & Climate Change
 Ocean Conservation
 Clean Water & Healthy Forests
 Healthy Communities & Environmental Justice
• Environmental consulting affiliate: CLF Ventures
www.clf.org

3. Big Disclaimer – different
presentation on conference CD
• It is a nice presentation, really
• Full of scary slides about current science
• Also overview of state and local actions
• Mr. Gerrard and I decided something more
timely was better
• This presentation is based on the moving
target of pending legislation –instantly obsolete
www.clf.org

4. The Context – States are
laboratories for policy & action
“It is one of the happy incidents of the federal
system that a single courageous State may,
if its citizens choose, serve as a laboratory;
and try novel social and economic
experiments without risk to the rest of the
country.” - New State Ice Co. v. Liebmann,
285 U.S. 262, 311, 52 S.Ct. 371, 386-387,
(1932) (dissenting opinion of Brandeis, J.)
www.clf.org

5. Overview of Federal-State
interaction regarding
environmental law
• Some laws (e.g., CERCLA) Have no explicit language
regarding preemption
 This means preemption only where implementation of
federal action is in direct conflict with local and state
requirements
• Generally, preemption is part of complex federal-state
relationship scheme
 Systems of delegation and citizen suits under Clean Water
and Clean Air Acts are prime example
• “Field Preemption” not really an issue because of
historic state roles under police power and limits on
federal roles
www.clf.org

6. The Clean Air Act: A special case
• Many in this audience know this is ultimate in
sophisticated and complex federal-state interaction
 Delegation of permitting (NSR), SIPs, FIPs, citizen suits . . .
• Stationary source regulation: fed reqs. are “floor” but
states can always be more protective
• Mobile sources (cars and trucks) is unique
 States are preempted from deviating from fed rules
 Except CA and states that adopt CA standards (note need
for federal waiver – controversial subject at this moment)
 Makes CA and other “177” states implementers of federal
law for purposes of preemption analysis (Crombie case)
www.clf.org

7. What state, regional and/or
local efforts are at issue here?
• Source by source regulation
 Ex.- Power plant Permitting & Siting
• Vehicle and fuels standards
 Ex.- “Pavley” car standards, low carbon fuel standard
• State and/or Regional Cap and Trade
 Sector specific (RGGI) or economy wide
• Project Review
 Ex.- Massachusetts “GHG MEPA Policy”, NEPA
• Climate sensitive zoning and transportation planning
• Complementary Policies (DSM programs, RPS . . .)
www.clf.org

8. How Broad could
preemption be?
• Voinivich amendment , not likely to become
law but it is on the table:
SEC. 1001. FEDERAL PREEMPTION OF STATE AND
LOCAL AUTHORITY . . .
(c) Prohibition.—Except as otherwise provided in this
Act, as of the date of enactment of this Act—
(1) no State or local government may prohibit or
regulate the emission of greenhouse gases; and
(2) any State or local law or ordinance that is
inconsistent with this subsection shall be void and
of no force or effect. www.clf.org

9. Sharp Contrast: Climate
Security Act provisions
• Section 1731 (Retention of State Authority)
 Mirrors Clean Air Act – general rule of no
preemption – federal standards are floor
• This has been the language in all the various
McCain-Lieberman, Lieberman-Warner,
Jeffords, Sanders and Boxer bills that are the
predecessors to the Boxer substitute being
debated in the Senate this week
www.clf.org

10. An Emerging new theme:
Inducing States to action
• Inducing states to harmonize with feds
 Section 704 of CSA allows RGGI and CA allowances to be
converted to federal allowances
 Section 614(c)(2) of CSA withholds revenue to states that
were “leaders in reducing emissions” but that have a cap-
and-trade system still in operation - not yet transitioned
into federal system (the “seat belt” model)
• Combination of these two sections – attempt to
answer big lingering questions about transition from
RGGI and CA program into federal system
www.clf.org

11. An Emerging new theme:
Inducing States to action (II)
• Funding for state action in CSA to reduce emissions –
puts allowance revenue to work
 Section 611 funds clean transportation (transit)
 Section 612 funds updates of state building & energy codes
 Section 613 Efficiency & Conservation Block Grants
• Rep. Markey’s bill (Investing in Climate Action and
Protection Act – iCap) National Energy Efficiency Fund
 Provides funding based on Performance Based Formula,
states are competing against their own baseline for funds
for electric, gas and buildings (secs. 324-326)
 Provides funding for transportation and smart growth to
implement a VMT reduction plan to reduce car use
www.clf.org

12. Conclusion
• This theme of inducing states to take positive
action and to harmonize with federal action is
very promising – backs down from head-on
collision between states and feds
• Essential that we craft legal solutions that allow
states to drive progress on cap-and-trade in
future and even more importantly take action in
the areas that are most directly within their
sphere of influence – transportation, land use,
efficiency and building codes
www.clf.org

13. For more information…
Seth Kaplan
Vice President for Climate Advocacy
Phone: 617-850-1721
E-mail: skaplan@clf.org
www.clf.org