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Garamendi's Unspoken Assumptions: Assessing Executive Foreign Affairs Preemption Challenges to State Regulation of Greenhouse Gas Emissions

December 2008

Citation: 37 ELR 10897

Issue: 12

Author: Kimberly Breedon

Editor's Summary: In 2003, the U.S. Supreme Court issued its most recent pronouncement on the executive foreign affairs preemption doctrine in American Insurance Ass'n v. Garamendi. In this Article, Kimberly Breedon argues that lower courts are prone to overbroad applications of Garamendi because the Court assumed the presence of three elements when it developed the standard for executive foreign affairs preemption of state law: (1) formal source law; (2) nexus to a foreign entity; and (3) indication of intent by the executive to preempt the state law under challenge. She concludes that unless these three elements are present, courts need not even reach the question of whether a law is preempted under the Garamendi test.

Kimberly Breedon is a 2007 graduate of the University of Cincinnati College of Law. She would like to thank Prof. Bradford C. Mank for his help and guidance. This Article received an Honorable Mention in the Environmental Law Institute's 2007 Endangered Environmental Laws writing competition.

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