Whether a federal statute preempts state law has important implications for the allocation of power between the federal and state governments. One aspect of preemption doctrine that has received relatively little scholarly attention is whether the federal government's failure to act is capable of preempting state law and, if so, when. In the regulatory context, Congress must first decide whether as a normative matter it should preempt state law despite its decision not to regulate activities regulated by states. Once Congress has done so, the courts may need to interpret federal legislation to determine whether Congress has decided to preempt state law despite federal inaction.
This article addresses both questions. It analyzes whether Congress should preempt state regulation despite the absence of federal regulation. It then recommends how courts should decide whether federal inaction is preemptive. To illustrate the utility of the analytical frameworks suggested here, the article applies them to the question of whether state regulation of activities that contribute to global climate change has been or should be preempted despite the absence of relevant federal regulation. The article makes four recommendations. First, Congress should not preempt state regulation when it has chosen not to regulate unless state regulation would inappropriately impose adverse impacts on other states, or federal policies can best be achieved in the absence of all regulation. Second, absent federal regulation, the courts should never find implied occupation of the field preemption based on policy conflicts. Third, the courts should find such implied preemption only if Congress has explicitly delegated to a federal agency the power to preempt state law to prevent it from subverting federal goals and the agency has clearly and persuasively exercised that authority. Fourth, the courts should never find implied preemption if the federal actor involved lacks jurisdiction over the activities subject to state regulation, and they should not defer to agency statutory interpretations of the preemptive effect of federal law. These recommendations strike an appropriate balance between federal and state power, while minimizing the risk that preemption will create unacceptable health and environment risks.
Robert L. Glicksman, Nothing is Real: Protecting the Regulatory Void Through Federal Preemption By Inaction, 26 Va. Envtl. L.J. 5 (2008).