The Bogeyman of Environmental Regulation: Federalism, Agency Preemption, and the Roberts Court

By KAMAILE A.N. TURČAN. Full Text.

In a trio of environmental cases—West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo—the Roberts Court curtailed the federal regulatory power and produced corresponding deregulatory outcomes under seemingly neutral legal principles. This Article interrogates the doctrinal coherency of the Roberts Court’s jurisprudence by applying the rationales of these cases to climate change litigation. Climate change policies advanced by state and local governmental plaintiffs represent the inverse of what the Court has previously rejected. The regulatory burdens arise under state, not federal, law. In this analysis, the Article advances a previously undertheorized aspect of the trio’s combined effect: These cases diminish the federal preemption power. A diminished federal preemption power, in turn, creates space for environmental regulatory action at the state and local levels to flourish. Federal preemption challenges to climate suits thereby juxtapose the deregulatory outcomes of West Virginia, Sackett, and Loper Bright with the separation of powers and federalism principles ostensibly advanced by the Roberts Court in those cases.