The Arizona Law Review Online - 2008 - Volume 50 Number 3

CONTENTS of Volume 50 Number 3

states and cities as actors in global climate regulation: unitary vs.
plural architectures
Richard B. Stewart    

This Essay concludes, based on a political economy analysis, that many states, cities, and other sub-national authorities (SNAs) will continue to take strong independent climate regulatory initiatives even after the federal government adopts a broad cap-and-trade system. Should federal law allow SNAs to do so? In order to answer this question, this Essay examines unitary and plural models of climate regulation. It concludes that, notwithstanding the advantages in principle of a unitary approach, a plural model that allows for multiple regulatory systems is preferable because in practice it is more likely than a unitary model to advance climate protection. Because independent SNA regulation furthers with the plural approach, federal law should presumptively allow it, subject to congressional legislation to prevent serious conflicts with the federal regulatory scheme that it adopts.

ratifying kyoto at the local level: sovereigntism, federalism, and translocal organizations of government actors (togas) 
Judith Resnik, Joshua Civin & Joseph Frueh  

This Article addresses the problem of how to conceptualize the federalism grid, often depicted on two dimensions, horizontal and vertical. Our interest is in the growth and significance of translocal organizations of government actors (TOGAs)—such as the U.S. Conference of Mayors and the National Governors Association—and their role in the importation and exportation of law across national boundaries, and specifically, their activism regarding climate change. In addition to examining how TOGAs shape law and policy in ways that criss-cross a two-dimensional grid and undercut claims of the exclusivity of certain issues as either “national” or “local,” we consider the legitimacy, from federalist perspectives, of the particular form of aggregate political capital created by TOGAs. Our assessment is that TOGAs forward some, but not all, federalist virtues. We also explore the ways in which law has and can respond to TOGAs. Because we see TOGAs as generative, we argue that special forms of legal status should be accorded to these configurations.

commentary Barry G. Rabe   

commentary David G. Leitch

of babies and bathwater: why the clean air act’s cooperative federalism framework is useful for addressing global warming
Holly Doremus & W. Michael Hanemann 

Discussion of policy approaches to reducing greenhouse gas emissions currently centers on emission trading, virtually to the exclusion of all other options. While trading has a place in the policy portfolio needed to mitigate global warming, it alone will not be sufficient. Although the Clean Air Act is not a perfect fit for the problem of climate change, its cooperative federalism framework can help fill the gaps left by an emission trading strategy. A mandate, modeled on the State Implementation Plan program, that states inventory emission sources and meet emission-reduction targets is better suited than markets to motivate behavioral change. Technology-based regulation, with minimum standards set at the federal level but one or more states allowed to impose more stringent standards, can better drive innovation. In crafting federal climate change legislation, Congress should look to tailor these elements of the Clean Air Act to the greenhouse gas problem, rather than tossing them out in favor of a strictly market-based approach.

reorienting state climate change policies to induce technological change
David E. Adelman & Kirsten H. Engel

This Article challenges the prevailing view that state action on climate change is misconceived because it cannot meaningfully impact greenhouse gas emissions. We argue that inducing technological change provides an independent ground for state programs; one can think globally and still act locally. Technological innovation is essential to successful climate policy and subject to a distinct market failure—technology spillovers that undermine investment incentives. State action can significantly enhance technological change, as promoting innovation is less dependent on large-scale government action and its inherent uncertainties favor the diversity sustained by multiple state programs. These observations suggest a two-tiered strategy: primary federal responsibility for reducing greenhouse gas emissions while state policies focus on promoting technological change. This Article concludes by proposing measures designed to support this complementary federal-state framework.

climate change, federalism, and the constitution  
Daniel A. Farber 

Federal climate change legislation seems increasingly likely, but at least some states are likely to continue pursuing independent initiatives. Courts, state governments, and EPA will then be faced with the question of how much room remains for state climate regulations. This Article argues for a bifurcated approach to the constitutional authority of states to pursue climate change mitigation. Courts should reject regulations that violate clear statutory preemption clauses, discriminate against interstate commerce, ban transactions under federal cap-and-trade schemes, or directly interfere with international agreements. In the remaining cases, this Article advocates adoption of a strong presumption of validity for state climate change regulation.

climate, preemption, and the executive branches
Lisa Heinzerling    

The federal government has grown very aggressive in asserting preemption of state laws. In the context of climate, this issue is playing out in the realm of mobile sources and could come to the fore in the regulation of stationary sources. In this Essay, I argue that the principles underlying Chevron—political accountability and technical expertise—counsel respectful attention to the role of state executive agencies in issuing rules alleged to be preempted by federal law.

commentary William A. Fletcher 

Notes

trans employees and personal appearance standards under title VII
Brian P. McCarthy

the state secrets privilege: overuse causing unintended consequences   
Holly Wells

Arizona Case Note

lee v. State: the mailbox rule and its applicability to notices of claims against the state
Tara Zoellner 

The Arizona Law Review
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