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Empowering Local Autonomy and Encouraging Experimentation in Climate Change Governance: The Case for a Layered Regime

December 2009

Citation: 39 ELR 11161

Issue: 12

Author: Michael Burger

Editors' Summary

In the decades-long absence of federal action, local governments--along with the states--have positioned themselves at the forefront of climate change and sustainability planning. These efforts, however, confront preemption problems imposed by federal "ceilings," or uniform national standards, under both existing environmental law and pending climate change legislation. In order to preserve the local autonomy values that underlie local action, and to capture the benefits of regulatory experimentation that result from it, federal climate change law should grant an agency, such as the U.S. Environmental Protection Agency, the discretion to approve local climate action plans that include measures that surpass federal ceilings.

Michael Burger is an Acting Assistant Professor at New York University School of Law. Portions of this Article are adapted from "It's Not Easy Being Green": Local Initiatives, Preemption Problems, and the Market Participant Exception, 78 U. Cin. L. Rev. (forthcoming, 2010).

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