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"It's Not Easy Being Green": Local Initiatives, Preemption Problems, and the Market Participant Exception

Michael Burger

Title:
"It's Not Easy Being Green": Local Initiatives, Preemption Problems, and the Market Participant Exception
Author(s):
Burger, Michael
Date:
Type:
Articles
Department(s):
Law
Sabin Center for Climate Change Law
Volume:
78
Persistent URL:
Book/Journal Title:
University of Cincinnati Law Review
Abstract:
This Article considers whether the market participant exception should be interpreted to exempt local climate change and sustainability initiatives from the "ceilings" imposed by existing environmental laws and pending federal climate change legislation. In the decades-long absence of federal action on climate change, local governments-along with the states-positioned themselves at the forefront of climate change and sustainability planning. In fact, state and local actions account for most of the nation's greenhouse gas reduction efforts to date. Yet, front-running localities are being limited by a preemption doctrine that fails to account for both the motives behind their initiatives and the actual effect they have on federal schemes. Indeed, while environmental law has long sought a balance between federalization and devolution of regulatory authority, current preemption doctrine, as applied to federal "ceilings," almost exclusively favors federalization values. The market participant exception offers a means to correct this imbalance. This Article begins by providing a detailed discussion of the evolution of the market participant exception in the dormant Commerce Clause and preemption contexts and unpacking the rationales behind federal floors" and "ceilings." It then analyzes the collapsing roles of governments and corporations as regulators and market actors, and recasts the work of local governments undertaking climate change initiatives as a "race to the top" of the market for "green" places to live, work, and invest. The Article then articulates a revised test for the market participant exception and illustrates through several case studies how the test can successfully empower local autonomy and enable local innovation without sacrificing the benefits of federal law.
Subject(s):
Environmental law
Climatic changes
Federal government
Law
Item views
306
Metadata:
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Suggested Citation:
Michael Burger, , "It's Not Easy Being Green": Local Initiatives, Preemption Problems, and the Market Participant Exception, Columbia University Academic Commons, .

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