Freedom from the Costs of Trade: A Principled Argument Against Dormant Commerce Clause Scrutiny of Goods Movement Policies

64 Pages Posted: 1 Aug 2019

See all articles by Anthony Moffa

Anthony Moffa

University of Maine School of Law

Stephanie Safdi

Independent

Date Written: January 1, 2014

Abstract

Two of the fastest growing theoretical camps in the environmental movement – environmental federalism and environmental justice – bolster creative, sub-national goods movement policies that aim to reduce emissions to combat global warming and improve public health. However, the Dormant Commerce Clause threatens to cripple that promising area of environmental policy innovation. We argue that Dormant Commerce Clause doctrine, in its contemporary iterations, fails to account for, and requires reexamination in light of, the gross environmental and social externalities now known to be associated with contemporary goods movement. Although the Supreme Court’s creative jurisprudence has managed to protect certain regulations from Dormant Commerce Clause strictures, it has underscored rather than resolved the incoherence of the doctrine. Scholars have drawn out two motivating principles behind the doctrine – (i) protection of political process and federal stability, and (ii) promotion of unfettered free trade – yet, we find, the Dormant Commerce Clause is an inappropriate tool for vindicating these values in the context of state goods movement policies. As such policies grow in number and popularity, the Court’s Dormant Commerce Clause jurisprudence grows increasingly misaligned with contemporary democratic impulses and with the social, economic, and environmental exigencies that they respond to. Lacking a coherent operative principle, the Dormant Commerce Clause should give way to state policies that encourage diverse local economies and protect social and environmental interests jeopardized by the mass movement of goods.

Keywords: environmental law, dormant commerce clause, renewable energy, climate change, goods movement, interstate commerce

JEL Classification: K32, K23

Suggested Citation

Moffa, Anthony and Safdi, Stephanie, Freedom from the Costs of Trade: A Principled Argument Against Dormant Commerce Clause Scrutiny of Goods Movement Policies (January 1, 2014). NYU Environmental Law Journal, Vol. 21, No. 2, 2014, Available at SSRN: https://ssrn.com/abstract=3428551

Anthony Moffa (Contact Author)

University of Maine School of Law ( email )

300 Fore Street
Portland, ME 04101
United States

Stephanie Safdi

Independent ( email )

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