Climate Change, Federalism, and the Constitution

Abstract:     
The federal government so far has shown little initiative in addressing the issue of climate change. Perhaps surprisingly, however, state governments have moved much more aggressively. By 2006, every state had taken steps of some kind to address climate change. California has been the leader, with legislation aimed at reducing greenhouse emissions from automobiles and electrical generators, as well as an ambitious mandate to reduce emissions to 1990 levels by the end of the next decade.

Federal climate change legislation seems increasingly likely, but at least some states are likely to continue pursuing independent initiatives. Courts, state governments, and the EPA will then be faced with the question of how much room remains for state climate regulations.

This Article argues for a bifurcated approach to the constitutional authority of states to pursue climate change mitigation. Courts should reject regulations that violate clear statutory preemption clauses, discriminate against interstate commerce, ban transactions under federal cap-and-trade schemes, or directly interfere with international agreements. In the remaining cases, the Article advocates adoption of a strong presumption of validity for state climate change regulation.

Number of Pages in PDF File: 25

Keywords: climate change, federalism, environment, preemption

Accepted Paper Series