Friday, September 10, 2010
Michael Burger (Roger Williams) has posted It's Not Easy Being Green: Local Initiatives, Preemption Problems, and the Market Participant Exception, published in the University of Cincinnati Law Review, Vol. 78, No. 835, 2010. The 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.
Looks like an interesting article, and I can say with some confidence that it's the best land use article I've seen to riff off of a Kermit the Frog single (although now that I think about it, I'm surprised that more authors haven't noted the Muppet-like travails of Being Green).