In the areas of health and safety regulation, environmental protection, and consumer protection, the states often fill in for federal regulators through the use of traditional state common-law doctrines, like negligence or nuisance, or their own consumer protection statutes. Often, state laws echo the corresponding federal laws and can be enforced by state attorneys general and private citizens. However, over the past decade, federal agencies have aggressively preempted concurrent enforcement of state statutes and regulations, and sometimes state common law as well. This preemption creates a vast unregulated domain when federal agencies do not enforce their regulations. If, as Professor Gillian Metzger claims, administrative law is the new federalism, it appears to be a federalism strongly weighted in favor of the federal government.
Advancing Federalism Concerns in Administrative Law Through a Revitalization of State Enforcement Powers: A Case Study of the Consumer Product Safety and Improvement Act of 2008,
Yale L. & Pol'y Rev.
Available at: https://digitalcommons.law.yale.edu/ylpr/vol29/iss1/4