Conditional Preemption, Commandeering, and the Values of Cooperative Federalism: An Analysis of Section 216 of EPAct

This Note considers whether the U.S. Supreme Court should expand its commandeering doctrine to invalidate conditional preemption programs. It does so through the lens of section 216 of the Energy Policy Act of 2005, focusing on both formalist and functionalist accounts of the line between conditional preemption and commandeering. The Court’s formal bar on commandeering permits conditional preemption even though some conditional preemption schemes, such as section 216, threaten the very values that the Court uses to justify the bar on commandeering. Seizing on this point, some judges and several scholars have called for a functionalist assessment of the line between conditional preemption and commandeering. This Note acknowledges that analysis of section 216 illustrates viable criticisms of a bright-line distinction between conditional preemption and commandeering. It ultimately, however, defends the distinction. By drawing on the literature on voice and administrative accountability, this Note develops a model of conditional preemption that responds to the Court’s normative concerns and offers a rejoinder to functionalist criticisms of conditional preemption.