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No Second-Class States: Why the California Exceptions in the Clean Air Act Are Unconstitutional

August 2006

Citation: ELR 10624

Author: Valerie J.M. Brader

Editor's Summary: The U.S. Department of Transportation's new fuel economy rules for light trucks and sport utility vehicles are under fire, in part because the Bush Administration has taken the position that the new rules preempt the ability of California to set its own stricter rules under the CAA. Yet according to Valerie Brader, there is a weightier reason the new rules should stand: the provisions of the CAA giving California these regulatory powers are unconstitutional. She argues that the equal footing doctrine, a principle of American law that predates the U.S. Constitution and is still in force today, prohibits laws that create a differential in governing power between the states. Congress' attempt to give California powers not given to other states violates that doctrine.

Valerie Brader, a member of the Michigan, Eastern District of Michigan, and U.S. Court of Appeals for the Sixth Circuit bars, is currently a clerk for the Hon. John Feikens (E.D. Mich.). Formerly, Brader was an environmental consultant with Booz Allen Hamilton and the staff assistant for natural resources for Gov. Phil Batt (R-Idaho). A Rhodes Scholar, she holds an A.B. magna cum laude in government from Harvard University, an M.Sc. in environmental change and management and an M.St. in historical research from the University of Oxford, and a J.D. magna cum laude from Georgetown University. A longer version of this Article is on file with the Hastings West-Northwest Journal of Environmental Law & Policy (forthcoming 2006). The author would like to thank Gregory Koory, Jeremy Schultze, and Robyn Tessin for their insights and suggestions.

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