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Northeastern University Law Review


Climate change is disrupting many communities in the United States and around the world. Climate events like heat waves, hurricanes, drought, fire, and flooding will become much more frequent, and with them will come the need for robust health care responses. Given the widespread and boundary-crossing nature of the problem, an ideal response would possibly originate at the federal or state level. As illustrated by the COVID-19 pandemic, however, there is little guarantee that such a response will be forthcoming. Recent foreclosures of federal options for handling climate change make such a response even less likely. Instead, it seems likely that local governments in many states will be left on their own to manage the necessary responses to the changing health needs and crises of their populations. Those local responses will be necessarily varied, challenging, and imperfect—even if local governments are allowed free rein in handling climate impacts.

However, as the pandemic response also demonstrated, in many cases, local governments have good reason to fear being barred by the state from implementing needed responses and resiliency efforts. In general, state legislatures have broad authority to preempt local action. In the same way that many states exercised that authority during the pandemic to block local measures such as mask mandates, states may also preempt local authority over climate response. Such preemption will overwhelmingly impact the populations already experiencing disparities in care and access that are going to be most reliant on a robust local response to changing health needs. An equitable public health response to climate change, therefore, likely depends on protecting local authority to act in the best interest of their citizens—and on a realistic assessment of when and whether local authority will be allowed.

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College of Law

Suggested Citation

Sarah Fox, The Prospect and Perils of Climate Preemption for Public Health, 15 Ne. U. L. Rev. 1 (2023).

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