State Law Responses to Global Warming: Is It Constitutional to Think Globally and Act Locally?

29 Pages Posted: 8 Feb 2010 Last revised: 3 Sep 2010

David Hodas

Widener University - Delaware Law School

Date Written: January 1, 2003

Abstract

The constitution creates a federalist system, in which States retain general police power not superseded or limited by the Constitution or federal law. Under President George W. Bush, the United States adopted two seemingly conflicting positions. At the federal level, President Bush has rejected the Kyoto Protocol and declined to develop any material foreign or domestic policies to limit greenhouse gas (GHG) emissions. At the state level, many states adopted a wide range of policies, statutes and regulations addressing GHG emissions. Critics of these policy initiatives question whether States possess the constitutional authority to address global warming, citing the doctrines of preemption, the dormant commerce clause, and the federal foreign affairs power. However, analysis of the Supreme Court’s understanding of these doctrines reveals that none of them bars a State from addressing GHG emissions. In short, States have the power and authority to think globally, but act locally.

Keywords: Constitutional Law, Environmental Law, Federalism, States, Global Warming, Climate Change

JEL Classification: K32

Suggested Citation

Hodas, David, State Law Responses to Global Warming: Is It Constitutional to Think Globally and Act Locally? (January 1, 2003). Pace Environmental Law Review, Vol. 21, pp. 53-81, 2003. Available at SSRN: https://ssrn.com/abstract=1549747

David Hodas (Contact Author)

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States
302 477 2186 (Phone)

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