Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 4 of 4
Full-Text Articles in Law
The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson
The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson
Articles
Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …
A Presumption Against Agency Preemption, Nina A. Mendelson
A Presumption Against Agency Preemption, Nina A. Mendelson
Articles
Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …
Chevron And Preemption, Nina A. Mendelson
Chevron And Preemption, Nina A. Mendelson
Articles
This Article takes a more functional approach to reconciling preemption doctrine with Chevron when Congress has not expressly delegated preemptive authority to an agency, an approach that considers a variety of concerns, including political accountability, institutional competence, and related concerns. The Article assumes that federalism values, such as ensuring core state regulatory authority and autonomy, are important and can be protected through political processes." It argues that although Congress's "regional structure" might hint at great sensitivity to state concerns, it actually may lead Congress to undervalue some federalism benefits that are more national in nature. Meanwhile, executive agencies generally have …
On The Topology Of Uniform Environmental Standards In A Federal System And Why It Matters (Symposium: Environmental Federalism), James E. Krier
On The Topology Of Uniform Environmental Standards In A Federal System And Why It Matters (Symposium: Environmental Federalism), James E. Krier
Articles
Uniform standards are much favored among the makers of federal environmental policy in the United States, which is to say, among the members of Congress. By and large-judging at least from the legislation it has enacted-Congress expects the air and water eventually to meet the same minimum levels of quality in every state in the country, and expects each pollution source in any industrial category or subcategory to be controlled just as much as every other such source, notwithstanding the source's location or other peculiar characteristics. There are exceptions to these generalizations, but they are exceptions and not the rule.1 …