Disaggregating Preemption in Energy Law

The question of which level of government — local, state, or federal — is best suited to regulate a particular activity or risk is both important and, often, contentious. Judges, legislatures, and scholars frequently debate, for example, who should regulate education policy or the impacts of booming oil and gas development. The values cited for choosing a particular level of governmental control vary dramatically. Proponents of preemption point to the need for uniform regulation and the risk of races to the bottom, while opponents raise the need for government accountability to local voters and the benefits of state and local experimentation. In weighing these competing values, those on all sides of the debate too often treat preemption as an all-or-nothing proposition — nearly total local, state, or federal control, or nearly none. As argued here, this approach is unfortunate, because it obscures what should be obvious: in many cases, some aspects of a particular activity are best regulated at the state or local level even if most of them are best regulated by the federal government (and vice versa). Disaggregating the preemption question — and thus increasing the chances that a court or legislature will allow different levels of government to control different aspects of a regulated activity — does not only increase the chance that different values associated with centralized or decentralized control, such as enhancing the accountability of regulation while also providing some regulatory uniformity, will be captured within the regulatory regime. It also encompasses the benefits noted by many new federalism scholars, such as the checks and balances provided when different levels of government control different aspects of an activity or negotiate for control, and the comparative advantages offered by these different levels of government. Further, by increasing the chance that lower levels of government will potentially control aspects of a regulated activity, disaggregated preemption can lead to the devolved power and multi-level governance supported by many subsidiarity scholars. In all-or-nothing preemption decisionmakers needlessly make a binary decision — identifying one large regulatory area and assigning authority over this area to one government. Although express, implied, and field preemption doctrines all seem to require a more nuanced approach, in practice courts rarely parse the different aspects of the regulation at issue to the extent that they could or should, and the same is true of legislatures. For example, many state legislatures and judges have recently found that state laws preempt most local control over oil and gas development, citing the importance of uniform regulation. Yet this development involves numerous regulatory components, from the location of the well site (a land use decision) to technologies that enhance drilling safety (technical regulation). Despite many recent failures to recognize this type of nuance, a growing number of preemption decisions have started down the disaggregation path. For example, although Pennsylvania attempted to preempt nearly all local regulation of natural gas development, it allows local governments to impose a fee on this development, and the proceeds address certain local environmental and social impacts caused by this development. This Article proposes a structural and normative framework for a disaggregated preemption decisionmaking procedure, describing how courts and legislatures should approach preemption decisions and why this best captures a range of values ascribed to preemption or decentralized control. In analyzing recent preemption decisions within this framework, it focuses primarily on energy law examples in light of their recent abundance and explores how decisionmakers using this approach could better address a variety of preemption conflicts.