William W. Buzbee · September 2009
77 GEO. WASH. L. REV. 1521 (2009)
Current debates over federalism, especially preemption, center on the merits of legal structures that rely on a sole or preemptive federal regulator versus strategies that retain roles for multiple regulatory actors, especially federal, state, and local actors sharing concurrent and interacting authority. Given that most regulatory regimes identify among their express purposes the preservation of resources, the environment, or health, which sort of regulatory regime—preemptive or concurrent and interactive—is most likely to further such stewardship, sustainability, and intergenerational equity goals? Such public-regarding goals confront political economic incentives and behavioral tendencies of political, legal, and business actors to seek immediate rewards and neglect longer term perspectives and concerns. Preemption battles in political, regulatory, and judicial venues typically are a manifestation of this clash between longer term protective goals and anti-regulatory preferences of industry and sometimes political and regulatory officials. In recent years, in a major change in prevailing federal governmental policy, many agencies and industries claimed that agency actions have broad preemptive impact on state and local regulatory powers and common law regimes, but these claims usually followed no advance opportunities for comment or open, reasoned agency decisionmaking.
This essay focuses upon a much neglected aspect of judicial review of preemption claims: How should courts review the factual and policy underpinnings of claims that federal regulatory actions should preempt? Through analysis of federalism and preemption jurisprudence, as well as central administrative law doctrine that rewards transparency, accountability, and constrained discretion, this Article argues that courts should explicitly embrace “preemption hard look review.” Courts should subject agency claims of preemptive power and effect to close analysis to see if such an outcome is well justified by underlying facts and policy claims, but grant agencies greater policymaking latitude where they assert such power following transparent and participatory regulatory process resulting in well reasoned justifications. Explicit judicial embrace of preemption hard look review would constitute, at most, only a modest shift in preemption jurisprudence, but would further important federalism and administrative law values. By prodding agencies to make preemption claims in an open, transparent and participatory manner, such rigorous hard look review would also improve the odds that agency actions would be consistent with express public-regarding purposes in most laws, and thus would be likely to further stewardship, sustainability, and intergenerational equity goals.
