Perhaps nothing is as American as the ongoing struggle between the rights of states and the rights of the U.S. federal government. At the dawn of the Trump Presidency, an increase in litigation over the divergence between state and federal law seems almost certain, and the odds will increase if Scott Pruitt is confirmed as the next head of the Environmental Protection Agency (EPA).
In an increasingly complicated world of case law, the judiciary will ultimately decide the legality of present and future actions that could or could not comprise an array of corporate crimes. With the large number of court vacancies for Trump to fill, the edge will go to defining corporate crime down rather than defining corporate crime up. [See my January 4 Viewpoints column, “Defining Multinational Corporate Crime Down”.]
At the very heart of the litigation will be the interpretive use of “preemption”— the negation or displacement of state laws by federal laws. From coast to coast the fears are that the greenest rules and regulations established in places like California, New York, and Massachusetts will be nullified.
In these “greener” corners of the U.S., there are concerns that preemption will become the tool used by Trump and a Republican-controlled Congress to undermine federal and state regulations in general, and those of environmental protections in particular.
As a consequence, local or state rules that presently or in the future might exceed what are considered violations according to existing or new federal laws, will be prohibited—in effect, decriminalized by a lower common standard for all.
In preparation for an adversarial relationship with President Trump, for example, the Democratic Party-controlled California legislature has already hired former U.S. Attorney General Eric H Holder, Jr. to serve as its outside legal council. Holder will lead a team of attorneys from the New York law firm of Covington & Burling.
If the contradictory and often misquoted sayings are true that “the best defense is a good offense” and “the best offense is a good defense,” then retaining Holder and company was a very smart move.
After all, when it comes to defending powerful corporations from alleged criminality, Covington & Burling are among the best attorneys that money can buy. At the same time, when it came to Attorney General Holder and company at the DOJ, they indeed, provided yeonman’s service on behalf of civil rights, voters’ rights, and pushing back against police abuse.
Conversely, when it came to not prosecuting the bankers of Wall Street who imploded the global economy, who was better than Holder and another partner also on leave from C & B, the former head of the Department of Justice’s Criminal Division, Lanny Breuer, to lead the non-charge against those securities fraudsters?
The primary difference now is that the Holder team’s legal skills would be focused on behalf of the public interest, defending higher California standards and rules of protection, rather than working on behalf of those corporations that would violate these same laws.
Holder’s team will try to address potential conflicts between California and the new administration, especially around issues of climate change, environmental protection and global warming.
Riding in the crosshairs of these potential litigations are, for example, clean (or cleaner) cars, air and water. The prevailing standards are all at risk, especially if Pruitt becomes the next head of the EPA.
Not only does Pruitt distrust the fundamental mission of the EPA. But the Oklahoma Attorney General has also spent much of his legal career suing the EPA for its allegedly overzealous regulatory interventions into dirty oil and gas production.
In total, Pruitt has filed 14 lawsuits challenging environmental regulations. He has also served as a leader of the Republican Attorney General Association. Since 2013, the association has raised $14.2 million from fossil-fuel companies, including Exxon Mobil, Koch Industries, Murray Energy, and Southern Company, which have also helped to finance his lawsuits against the government.
Preemption applies to virtually all forms of federal regulation, including the administration of health care, immigration, and consumer protection.
In the recent past, for example, conservative state lawmakers have used “preempting” federal laws to bar cities and counties in Michigan from banning the use of plastic bags, and in Colorado from banning the use of fracking.
Preemption was also used in North Carolina to outlaw transgender protections in the city of Charlotte.
During the past eight years of the Obama Administration, with the visible exception of the coal industry, preemption had not been a major issue. The U.S. in early 2016 even signed the Paris Climate Change Agreement.
While it is still too early to know for sure how and whether the new Trump Administration and the Republican Congress will use preemption to roll back our health, safety and consumer protections, progressive states and cities are already lining up their ducks to resist the anticipated onslaught of legal assaults on regulation.
Editors Note: This story has been updated with new information provided by the author.
Gregg Barak is a 2017 Fulbright Scholar to Porto Alegre, Brazil and Professor of Criminology and Criminal Justice at Eastern Michigan University. He is the author of several books on crime and justice and the recipient of the National White Collar Crime Center’s Outstanding Publication Award for his 2012 book, Theft of a Nation: Wall Street Looting and Federal Regulatory Colluding. His latest book, Unchecked Corporate Power: Why the Crimes of Multinational Corporations are Routinized Away and What We Can Do About It, will be published in London and New York on March 3 by Taylor & Francis Group. He welcomes readers’ comments.