"Preemption, Federalism, and the Regulation of Emerging Technologies" is an article by Roger Hanshaw published in the American Bar Association's Natural Resources & Environment (NR&E), Summer 2025 issue, on americanbar.org. It argues that environmental law's model of a federal regulatory floor combined with state authority to set stricter standards is a suitable template for regulating emerging technologies, including AI. The argument aligns structurally with the floor-preemption posture of the AI LEAD Act and runs counter to the ceiling-preemption posture later adopted in Executive Order 14365 — Ensuring a National Policy Framework for AI.
Author: Roger Hanshaw Publication: American Bar Association — Natural Resources & Environment (NR&E), Summer 2025 issue Source: americanbar.org
Summary of argument
The article is short (a 24–30 minute read) and advances an analogy rather than new empirical evidence. Hanshaw presents environmental law's floor-preemption structure as a model that can be adapted to emerging-technology regulation, and addresses AI alongside machine learning, blockchain, and genetic engineering.
Hanshaw summarizes the argument in three points:
- "Environmental law provides a well-recognized and widely adopted approach to complex regulation suitable for adaptation to technology." The Clean Air Act, Clean Water Act, and Resource Conservation & Recovery Act all establish federal floors while allowing states to set stricter standards.
- "Though federal law preempts many state approaches to technology regulation, a federal regulatory floor leaves states open to develop new approaches to technology regulation." Hanshaw frames floor preemption, rather than ceiling preemption, as the constitutionally and policy-tested model.
- "In an environment where the federal government is unable or unwilling to develop a regulatory strategy, states can lead the way in crafting successful approaches to regulation." On this view, states are the legitimate venue for experimentation when federal action stalls.
Relevance to AI preemption debates
The article appeared the same month as the "One Big Beautiful Bill" reconciliation effort and the failed 10-year state AI-regulation moratorium (How MAGA learned to love AI safety — Nicky Woolf (Transformer, October 2025)). Hanshaw's framing provides a doctrinal articulation of the floor-preemption position that prevailed in that fight: that federal coordination paired with state innovation is more effective than a federal bar on state action. The same position was advanced informally by several state attorneys general and pro-state-rights commentators, including the populist-conservative coalition documented in How MAGA learned to love AI safety — Nicky Woolf (Transformer, October 2025).
The article does not directly engage Executive Order 14365 — Ensuring a National Policy Framework for AI, which post-dates it by roughly six months. By its logic, however, EO 14365's preemption posture would be counter-doctrinal rather than a permissible exercise of federal authority. Hanshaw's framework is compatible with the AI LEAD Act (S. 2937)'s floor-preemption approach, and its environmental-law analogy is structurally aligned with the state-level common-law innovation framing of AI and Tort Liability and \"For All Issues So Triable\" — Dean W. Ball (Hyperdimensional, August 2025)'s tort-as-discovery argument.
Applied to the Colorado dispute, the framework defends Colorado's authority to regulate AI absent contradictory federal law (Colorado AI Act (SB 24-205) and SB 25B-004 (Date Amendment)); xAI's challenge (xAI LLC v. Weiser (challenging the Colorado AI Act)) implicitly argues the opposite, and Hanshaw's analysis runs counter to the DOJ–xAI joint position. The framework also runs counter to the preemption-friendly posture endorsed in America's AI Action Plan. It offers a doctrinal articulation of the floor-preemption side that could be cited in future updates to Executive Order 14365 — Ensuring a National Policy Framework for AI, AI LEAD Act (S. 2937), xAI LLC v. Weiser (challenging the Colorado AI Act), and Colorado AI Act (SB 24-205) and SB 25B-004 (Date Amendment), and that Colorado or Weiser could invoke if the Colorado case proceeds to merits briefing.
Provenance and reliability
The piece is a single-author ABA practitioner article and is treated as Hanshaw's articulation of the doctrinal position rather than as binding legal analysis. The environmental-law analogy functions as a rhetorical mapping rather than a fully argued doctrinal proof, useful for framing the debate rather than dispositive. Confidence is medium.
Relationships
- supports: AI LEAD Act (S. 2937) (floor preemption), Colorado AI Act (SB 24-205) and SB 25B-004 (Date Amendment) (state-regulation autonomy), AI and Tort Liability (state-level common-law innovation)
- contradicts: Executive Order 14365 — Ensuring a National Policy Framework for AI (ceiling preemption posture); America's AI Action Plan (preemption-friendly posture); xAI / DOJ joint position in xAI LLC v. Weiser (challenging the Colorado AI Act)
- related: How MAGA learned to love AI safety — Nicky Woolf (Transformer, October 2025) (political articulation of same position), \"For All Issues So Triable\" — Dean W. Ball (Hyperdimensional, August 2025) (compatible state-level common-law experimentation framing), Roger Hanshaw (planned)
- instance-of: AI Safety Cases and Frameworks