Federal Preemption of State Power

Chapter 6

Federal Preemption of State Power

Wariness of a strong central government was a central theme of the federal Constitution’s framing and ratification. Although the national government was conceived as a government of limited power, the Constitution’s supremacy clause provides that laws enacted “under the Authority of the United States, shall be the supreme Law of the Land.” Determining whether a conflict exists is not always easy. Congress, moreover, often does not indicate whether its enactments intend to preempt state regulation. The Supreme Court, however, has developed standards for determining whether a conflict between federal and state law exists and, if so, how to resolve it. In Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission (1983), the Court applied these principles to the issue of whether a state moratorium on nuclear power plant development preempted the federal government’s interest in regulating the economics of atomic energy. More recently, in Arizona v. United States, (2012), preemption issues arose in the context of a state, Arizona, attempting to deal with immigration problems it faced although Congress had already passed laws in the immigration area in question.

Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission

Citation: 461 U.S. 190.

Issue: Whether Congress’s regulation of nuclear power plant safety preempted a state moratorium on nuclear power plant certification.

Year of Decision: 1983.

Outcome: Federal regulation did not preempt the state’s ability to regulate the economics of the nuclear power industry.

Author of Opinion: Justice Byron White.

Vote: 9-0.

The supremacy clause of the Constitution, set forth in Article VI, Section 2, establishes federal law as “the supreme Law of the Land.” This provision is implicated when a state enacts legislation that conflicts with a federal law. It is reminiscent of the commerce clause, which is a barrier to state laws that unduly burden or discriminate against interstate commerce. Unlike the commerce clause, however, the supremacy clause operates only when Congress has enacted a law and an actual conflict is identified. A threshold issue in all preemption cases thus is whether, in fact, a conflict exists between federal and state law. Because congressional intent to preempt is not always manifested by explicit terminology, the Supreme Court has developed criteria for determining whether it can be identified.

Numerous activities and conditions are subject to both federal and state regulation. In many instances, dual regulation may be complementary rather than conflicting. Within the framework of dual sovereignty, case law establishes a preference for accommodation rather than preemption. Inquiry under the supremacy clause thus begins with a presumption that the state law is valid. This orientation is reflected in the Court’s analysis, in Pacific Gas and Electric Co. v. State Energy Resources Conservation and Development Commission (1983), of California’s imposed moratorium on certifying nuclear power plants. The reason for the moratorium was expressed in economic rather than safety terms. As the state of California explained it, the lack of effective technology eventually might force closure of nuclear power plants. This condition, if it were to arise, would have a profoundly negative impact upon the cost and availability of electricity.

The issue of preemption turned upon the Atomic Energy Act of 1954. Pursuant to this enactment, Congress created the Atomic Energy Commission (now the Nuclear Regulatory Commission) (NRC) and gave it authority over the safety of nuclear power plant construction and operation. The Commission’s charge included responsibility for licensing nuclear power plants and regulating the disposal of radioactive waste. Despite the argument that the moratorium violated the supremacy clause, the Court found no conflict between federal and state law.

Justice Byron White, speaking for the majority, drew a distinction between the federal concern with the safety of nuclear power plants and their economic viability. In this regard, he noted that the federal enactment did not take away from states their traditional authority to regulate the economics of the power industry. If a state determined that nuclear power did not make economic sense, moreover, the federal government could not force a contrary decision. Absent competing or conflicting impositions, therefore, the Court found no basis for preemption. A different result would have been achieved if the state had acted upon safety grounds.

Justice Harry Blackmun, in a concurring opinion, contended that the moratorium was allowable even if it was grounded in concern with the safety of nuclear power. The Atomic Energy Act, as Justice Blackmun understood it, intended to diversify the nation’s sources of electricity. From his perspective, there was no reason to deny states a parallel interest in accounting for safety. Justice Blackmun’s position that the moratorium should be upheld regardless of the state’s purpose reflects awareness that an effort to identify motive typically is a futile undertaking. The challenge of identifying a true motive is heightened in the legislative context, where outcomes typically reflect negotiation and trade-offs. The majority opinion indicates that a state regulation will not be preempted when the federal and state interests and objectives are distinct. This emphasis upon separate federal and state concerns actually might invite lawmakers, whose real concern is with safety, to adopt a false front.

Either way, the majority opinion effectively illuminates the key principles of preemption doctrine. Regardless of the case, review commences with a presumption that the state law is valid. Barring explicit congressional language announcing the intent to preempt state law, a court must assess whether there are indications to this effect. Within this context, three possibilities for preemption arise. First, an intent to preempt may be found when the “scheme of federal regulation [is] so pervasive as to make reasonable the inference that Congress left no room to supplement it.” Because responsibility for electric power generation was shared by federal and state government, a pervasive national interest could not be identified. A second possibility for preemption arises when “the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Given the states’ power and interest with respect to the generation of electricity, the federal interest was not dominant to the point of precluding state regulatory action. Preemption also is appropriate when state law imposes requirements that are at odds with federal law. This third basis for preemption also was inapplicable. The federal law was based upon safety concerns and did not mandate the use of nuclear power. The moratorium thus did not impose any demands that competed with federal law.

Regardless of whether the majority or Justice Blackmun provides the better model of analysis, the decision reflects the importance that the Court assigns to the imperatives of federalism. This principle of accommodation is key to balancing individual state interests and actions within the framework of a national union. Viewed in this light, the Court’s decision connects closely with a premise that was central to the republic’s founding and critical to the maintenance of a system governed by dual sovereigns.


Justice WHITE delivered the opinion of the Court.

. . . There is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power. The Act itself states that it is a program “to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes to the maximum extent consistent with the common defense and security and with the health and safety of the public.” The House and Senate Reports confirmed that it was “a major policy goal of the United States” that the involvement of private industry would “speed the further development of the peaceful uses of atomic energy.” The same purpose is manifest in the passage of the Price-Anderson Act, which limits private liability from a nuclear accident. The Act was passed “in order to protect the public and to encourage the development of the atomic energy industry. . .”

The Court of Appeals’ suggestion that legislation since 1974 has indicated a “change in congressional outlook” is unconvincing. The court observed that Congress reorganized the Atomic Energy Commission in 1974 dividing the promotional and safety responsibilities of the AEC, giving the former to the Energy Research and Development Administration (ERDA) and the latter to the NRC. Energy Reorganization Act of 1974. The evident desire of Congress to prevent safety from being compromised by promotional concerns does not translate into an abandonment of the objective of promoting nuclear power. The legislation was carefully drafted, in fact, to avoid any anti-nuclear sentiment. . . . It is true, of course, that Congress has sought to simultaneously promote the development of alternative energy sources, but we do not view these steps as an indication that Congress has retreated from its oft-expressed commitment to further development of nuclear power for electricity generation.

The Court of Appeals is right, however, that the promotion of nuclear power is not to be accomplished “at all costs.” The elaborate licensing and safety provisions and the continued preservation of state regulation in traditional areas belie that. Moreover, Congress has allowed the States to determine—as a matter of economics—whether a nuclear plant vis-a-vis a fossil fuel plant should be built. The decision of California to exercise that authority does not, in itself, constitute a basis for preemption. Therefore, while the argument of petitioners and the United States has considerable force, the legal reality remains that Congress has left sufficient authority in the states to allow the development of nuclear power to be slowed or even stopped for economic reasons. Given this statutory scheme, it is for Congress to rethink the division of regulatory authority in light of its possible exercise by the states to undercut a federal objective. The courts should not assume the role which our system assigns to Congress. . . .

Justice BLACKMUN, with whom Justice STEVENS joins, concurring in part and concurring in the judgment.

. . . I join the Court’s opinion, except to the extent it suggests that a State may not prohibit the construction of nuclear power plants if the State is motivated by concerns about the safety of such plants. Since the Court finds that California was not so motivated, this suggestion is unnecessary to the Court’s holding. More important, I believe the Court’s dictum is wrong in several respects.

The Court takes the position that a State’s safety-motivated decision to prohibit construction of nuclear power plants would be pre-empted for three distinct reasons. First, the Court states that “the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States.” Second, the Court indicates that “a state judgment that nuclear power is not safe enough to be further developed would conflict squarely with the countervailing judgment of the NRC . . . that nuclear construction may proceed notwithstanding extant uncertainties as to waste disposal.” Third, the Court believes that a prohibition on construction of new nuclear plants would “be in the teeth of the Atomic Energy Act’s objective to insure that nuclear technology be safe enough for widespread development and use.” For reasons summarized below, I cannot agree that a State’s nuclear moratorium, even if motivated by safety concerns, would be preempted on any of these grounds. . . .

In sum, Congress has not required States to “go nuclear,” in whole or in part. The Atomic Energy Act’s twin goals were to promote the development of a technology and to ensure the safety of that technology. Although that Act reserves to the NRC decisions about how to build and operate nuclear plants, the Court reads too much into the Act in suggesting that it also limits the States’ traditional power to decide what types of electric power to utilize. Congress simply has made the nuclear option available, and a State may decline that option for any reason. Rather than rest on the elusive test of legislative motive, therefore, I would conclude that the decision whether to build nuclear plants remains with the States. In my view, a ban on construction of nuclear power plants would be valid even if its authors were motivated by fear of a core meltdown or other nuclear catastrophe.


Hoke, S. Candice. “Preemption Pathologies and Civic Republican Virtues.” Boston University Law Review 71 (1991): 685.

Rotunda, Ronald D. “The Doctrine of the Inner Political Check, The Dormant Commerce Clause, and Federal Preemption.Transportation Practitioners Journal 53 (1986): 263.

Arizona v. United States

Citation: 132 S.Ct 2492.

Issue: Do the federal immigration laws preempt Arizona’s efforts at cooperative law enforcement?

Year of Decision: 2012.

Outcome: Yes. Federal laws do preempt three of the four Arizona immigration laws being challenged.

Author of Opinion: Justice Anthony Kennedy.

Vote: 5-3.

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