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- Info
Federal and state preemption of environmental law: a critical analysis
| Author: |
Weiland, Paul S. |
| Date: |
2000 |
| Periodical: |
Harvard Environmental Law Review |
| Abstract: |
Striking the appropriate balance between federal, state, and local involvement in environmental law and policy is an elusive task. Because there is a presumption against preemption and a widely accepted requirement that congressional intent to preempt must be clear and manifest, application of
implied preemption of state and local environmental law by the federal judiciary is necessarily more limited than that of express preemption. As a result, when a federal court holds that implied preemption applies, it is likely to preclude any state or local regulation. Because of the pervasive scheme of federal regulation established by the AEA, the court applied the doctrine of field preemption to invalidate the ordinance. Nevertheless, cases of implied preemption of state and local environmental law by the federal courts do exist. Although it varies considerably from state to state, the preemption doctrine provides states with a significant check on local government power. Recently, the Ohio Supreme Court overturned the implied preemption doctrine in that state is another example of a court using statutory interpretation to find implied preemption and invalidating a local environmental law. There are relatively few instances of implied preemption of environinental law at the federal level in telation to the state level. |
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