As we discussed here, industry litigants are invoking preemption arguments in challenging State laws that limit the emission of greenhouse gases. For example, the auto industry argues that California's controls on greenhouse gas emissions from cars and trucks are preempted by federal fuel efficiency laws. One important issue in the challenge is whether courts should defer to the assertions made by the National Highway Traffic Safety Administration that federal law does preempt States from regulating these tailpipe emissions.
In Watters v. Wachovia, No. 05-1342 (U.S. April 17, 2007), three Justices (Stevens, Roberts, and Scalia) concluded in dissent that such agency determinations are not entitled to Chevron deference. The other Justices found it unnecessary to address the issue because, in their view, the federal statute at issue clearly preempted the challenged State banking regulations.
Although Watters failed to resolve the issue, we recommend that interested readers consult the excellent amicus brief filed in that case by Professor Thomas Merrill and Stephen Houck on behalf of the Center for State Enforcement of Antitrust and Consumer Protection Laws, Inc. The brief does an outstanding job of explaining why Chevron deference is inapplicable to agency views on preemption and why courts, not agencies, should decide whether federal law displaces State law. The brief is available here.
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