|3/14/2017 by mdc|
|Michael K. Murphy opines that it is obvious to even the most casual observer that the new administration plans to pursue a much different agenda for environmental regulation and domestic energy production than the prior administration. Similarly, it is predictable that conflicts will arise between the new administration and blue states like California, New York and Massachusetts. |
These conflicts inevitably will result in litigation, and indeed, the red states previously sought protection from the courts to limit the scope and reach of the Obama U.S. EPA in the name of federalism. Now the situation is reversed, and the current administration may find itself in need of the federal preemption doctrine to limit state and local attempts to regulate activities that the federal government appears to favor, such as fracking, coal mining, pipelines and mineral development, but not uranium, as in Virginia where a ban on uranium mining was reinforced just recently.
In the absence of clear language preempting state power, Congress can preempt state law in two ways. Field preemption applies if Congress intends to foreclose any state regulation in the area, regardless of any inconsistency between the state regulation and federal standards. Conflict preemption happens when it is impossible to comply with both federal and state requirements, or state law stands in the way of federal compliance. Most states follow a similar preemption doctrine in deciding between state and local rules.
In the past years, states have used preemption to battle counties and cities that have tried to impose limitations on oil and gas development. The Colorado Supreme Court recently found that state law preempting fracking bans implemented by two Colorado cities. Courts in New Mexico, Louisiana, West Virginia and Ohio have reached similar results. These courts generally conclude that states traditional regulation of oil and gas development preempts all local regulations in that field.