Multi-state environmental agreements: Constitutional violations or legitimate state coordination?

Penn State Environmental Law Review

Volumn 15, Issue 2, 2007, Pages 355-372

  Maxwell, Katie ^a  

^a NONE

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EID: 37149023183     PISSN: 15463427     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (145)

1. U.S. Const. art I, § 10, Clause 3.
2. George William Sherk, Transboundary Water Allocation in the Twenty-First Century: The Management of Interstate Water Conflicts in the Twenty-First Century: Is It Time to Call Uncle?, 12 NYU ENVT'L. L.J. 764, 766 (2005). The interstate commerce clause was somewhat of a safety net to the founding fathers, who were afraid that there would be a gap in the powers they had allocated to the newly formed Congress and any problems that would arise among the states. Adding the interstate commerce clause to the Constitution provided a solution for any potential problems that would arise in the future, that the founding fathers had not initially foreseen.
3. Christi Davis, Interstate Compacts in Commerce and Industry: A Proposal for 'Common Markets Among States', 23 VT. L. REV. 133, 138 (1998).
4. See also, Marlissa S. Briggett, State Supremacy in the Federal Realm: The Interstate Compact, 18 B.C. ENVTL. AFF. REV. 751, 754 (1991).
5. Davis, supra note 3.
6. U.S. CONST.art. 1, § 10, Clause 3.
7. U.S. CONST.art. 1, § 10, Clause 3.
8. Matthew S. Tripolitsiotis, Bridge Over Troubled Waters, 23 YALE L. & POL'Y REV. 163 (2005).
9. See also Jill E. Hasday, Interstate Compacts in a Democratic Society: The Problem of Permanency, 49 FLA. REV. 1 (1997).
10. The Supreme Court held in United States Steel Corp v. Multistate Tax Comm'n 434 U.S. 452 (1978), only interstate compacts that "encroach upon or interfere with the just supremacy of the United States" need to be approved by Congress. Furthermore Congress must gauge the potential impact on federal supremacy rather than just the actual.
11. United States Steel, 434 U.S. 452. In this case, U.S. Steel challenged whether the Multistate Tax Commission was constitutional since it was an interstate compact that had not been approved by Congress. In addition to arguing that the Multistate Tax Commission violated the interstate compact clause, U.S. Steel argued that the Commission was unduly burdensome on interstate commerce and as a result Congress should invalidate the agreement. The Supreme Court disagreed, and held that that the interstate compact clause only applied to agreements that sought to increase a state's political power, and as a result would encroach upon federal supremacy. The court said that the Multistate Tax Commission did not create any powers that the states did not already possess.
12. U.S. Steel upheld the ruling in a previous Supreme Court interstate compact case, Virginia v. West Virginia, 78 U.S. 39 (1871).
13. Davis, supra note 3.
14. United States Steel, 434 U.S. at 471.
15. Id.
16. To Form a More Perfect Union?: Federalism and Informal Interstate Cooperation, 102 HARV. L. REV. 842 (1989).
17. Virginia v. West Virginia, 78 U.S. 39 (1871).
18. Id.
19. Id. at 73.
20. Virginia v. Tennessee, 148 U.S. 503, (1893).
21. Id. at 522.
22. Id.
23. Davis, supra note 3, at 136.
24. PAUL T. HARDY, INTERSTATE COMPACTS: THE TIES THAT BIND 3 (1982). During colonial times, colonies disputing boundary lines would work together to come to an agreement and submit their ideas to the King of England for approval.
25. See also New Hampshire v. Maine, 426 U.S. 363 (1976). In New Hampshire v. Maine, a dispute over lobster fishing, led to a disagreement over the marine border between Maine and New Hampshire that had been decided by a colonial compact that was approved by King George II. Interestingly, the Virginia-West Virginia Agreement of 1862 was an interstate compact that allowed the separation of West Virginia from the Commonwealth of Virginia during the U.S. Civil War.
26. See Virginia v. West Virginia, 78 U.S. 39 (1871).
27. Hardy, supra note 21.
28. Hasday, supra note 7, at 9.
29. Hardy, supra note 21, at 4.
30. Id.
31. Davis, supra note 3, at 143.
32. Id.
33. Id.
34. Briggett, supra note 3. Author uses the example of how Alaska has only 3 out of 535 votes in the United States Congress, but would have "one voice in only four" if they were to join a Pacific states compact.
35. Davis, supra note 3.
36. Hasday, supra note 7, at 5.
37. Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of the United States, 1996 tbl. 43, at 40-42 (116th ed. 1996). "As of 1994, 29 of the largest metropolitan areas in the US extended over state lines."
38. For example, look to the success, both practical and economic of the Port Authority of New York and New Jersey. See Financial Statements, The Port of Authority of New York and New Jersey, available at, http://www.panynj.gov/.
39. This is particularly the case where state borders are made of political borders and not geographic or natural ones. Rivers and mountains will certainly offer better protection from spillover environmental problems than arbitrary political boundaries will.
40. States working in concert with one another are likely to get the same benefit at a fraction of the cost, than if they were to work alone on a problem. Working separately, states are fighting themselves, and out bidding one another, whereas when they work together they avoid all those problems.
41. Carlton James Gausman, The Interstate Compact as a Solution to Regional Problems: The Kansas City Metropolitan Culture District, 45 KAN. L. REV. 897, 902 (1997).
42. Supra note 13, at 847. Pollution is a spillover problem because it is incapable to confine one state's pollution to its borders alone. Something about how you can export the cost of the cleanup by emitting into the air or throwing it in a river and having it end up downstream.
43. Hasday, supra note 7, at 5. "Experience and science strongly suggest that a river basin can be managed effectively as a unit," which, in the case of large rivers, necessarily involves multiple states' cooperation.
44. Gausman, supra note 36, at 902. A state who is acting alone and pouring their state coffers into something like limiting their pollution is, first, fighting a cause that they can not win on their own, and secondly, partially doing the job of their neighbors. In these circumstances, there is no incentive to act alone, and it is potentially more beneficial to wait for another state to do it for you. For a complete discussion of the application of the prisoner's dilemma to interstate compacts see supra note 13.
45. Briggett, supra note 3, at 752.
46. Memorandum of Understanding, Regional Greenhouse Gas Initiative, Dec. 20, 2005, available at http://www.rggi.org/docs/ mou_12_20_05.pdf.
47. Id. See also Robert Moore and Christine Vanderlan, Pataki should lead pollution drive; New York and other northeastern states need to curb global warming in spite of federal abdication, NEWSDAY, Feb. 15, 2005, at A35.
48. Global Warming - Climate, U.S. Environmental Protection Agency, available at, http://yosemite.epa.gov/oar/globalwarming.nsf /content/Climate.html.
49. Telephone Interview with Lawrence Kogan, Institute for Trade, Standards and Sustainable Development in Princeton, NJ. (Jan. 18, 2006). There is an ongoing debate within the issue of global warming, on whether it is better to approach the fight against global warming with a reduction in the emissions of greenhouse gases, or with an increase in technology that would create tools that could in effect clean emissions and strip them of their greenhouse gases. The Kyoto Protocol addresses only the issue of limiting emissions and does not provide incentives for technological improvements.
50. Cool Response to Global Warming Plan, CNN, Feb. 15, 2002, available at http://archives.cnn.com/2002/WORLD/asiapcf/east/02/15/ japan.climate/?related.
51. For the full text of the Kyoto Protocol see United Nations Framework Connection on Climate Change, The Kyoto Protocol, available at http://unfccc.int/essential_background/kyoto_protocol /background/items/1351.php.
52. The European Union is made up of the following countries: England, Ireland, Portugal, Spain, France, Germany, Belgium, Netherlands, Luxembourg, Italy, Greece, Hungary, Austria, Estonia, Slovenia, Cyprus, Finland, Malta, Poland, Sweden, Latvia, Czech Republic, Slovakia, Lithuania.
53. David Hodas, State Law Responds to Global Warming: Is It Constitutional to Think Globally and Act Locally?, 21 PACE ENVT'L 53(2003).
54. World Carbon Dioxide Emissions from the Consumption and Flaring of Fossil Fuels, 2001, Environmental and Energy Study Institute, available at http://www.eesi.org/publications/Fact%20Sheets/ If%20Corporations%20Were%20Nations.htm.
55. The only other arguable world power not participating in Kyoto is Australia. While a major world nation, Australia emits less than 10% of the amount of CO2 that the United States does.
56. Id. The United States is responsible for approximately 25% of carbon dioxide emissions worldwide. The United States emitted more pollution in 2000 than China by a factor of 10, even though China has a population three times that of the United States.
57. Id.
58. Id.
59. The Regional Greenhouse Gas Initiative: An Overview of the RGGI Program and its Importance, Environment Northeast, available at http:// www.env-ne.org/Program%20Fact%20Shects/ENE_RGGI_Background.pdf.
60. Id.
61. Juliet Eilperin, Ex-EPA Chiefs Agree on Greenhouse Gas Lid, WASH. POST. Jan. 19, 2006, at A04.
62. See generally Air Quality & Planning Standards, The Plain English Guide to the Clean Air Act, U.S. Environmental Protection Agency, available at http://www.epa.gov/oar/oaqps/pega /pegcaain.html.
63. CO2 is not listed as a pollutant, because it is a naturally occurring gas and only becomes harmful when emitted in large quantities.
64. A Global Warming to Mr. Bush, N.Y. TIMES, Feb. 26, 2001 at A14.
65. Jennifer 8. Lee, Senate Defeats Climate Bill-but Proponents See Silver Lining, N.Y. TIMES, Oct. 31, 2003, at A14.
66. The bill was to provide a scientific forum for the study of abrupt climate change, and for a way to develop a U.S. market-driven system of cap-and-trade for greenhouse gas tradable allowance emissions. See Senate Bill 139, sponsored by Joseph Lieberman, voted on Oct. 30, 2003.
67. Former President Clinton recently spoke out against the Bush administration and Republicans in Congress by saying, that they "were flat wrong" in claiming that reducing greenhouse gas emission to fight global warming would damage the U.S. economy. See Clinton Bashes Bush on Kyoto Pact ASSOCIATED PRESS, Dec. 9, 2005.
68. Email from Dick Morris, Fox News Political Contributor, (Jan. 18, 2006).
69. Id.
70. Telephone Interview with Josh Bushinsky, Pew Center on Global Climate Change in Arlington, Va. (Jan. 18, 2006). See also, 7 Northeastern States Launch RGGI, Environmental News Service, Dec. 12, 2005. "In the absence of federal regulations controlling emissions of CO2, states are developing their own policies.
71. This is not the first time that states have worked together on environmental issues, there have been other agreements about acid rain, and vapor pressure of gasoline. Email from Chris James Director, Connecticut Department of Environmental Protection.
72. New York, New Jersey, Delaware, Maine, New Hampshire, Vermont, Connecticut.
73. Telephone Interview with Lawrence Kogan, Institute for Trade, Standards and Sustainable Development in Princeton, NJ. (Jan. 18, 2006). Kogan believes that it is not inaction that is propelling RGGI, but rather action by the federal government that is not in the direction that the RGGI states want to go.
74. Dan Goldman and Berl Hartman, Missing the Clean-Air Revolution, BOS. GLOBE, Dec. 10, 2005 at A13.
75. Anthony DePalma, Seven States Agree on a Regional Program to Reduce Emissions From Power Plants, N.Y. TIMES, Dec. 21, 2005 at B3.
76. Andrew Revkin, Past Hot Times Hold Few Reasons to Relax About New Warming, N.Y. TIMES, Dec. 27, 2005, at F2. Global warming is not a scientifically proven phenomena, but there is a growing scientific believe that it does exist.
77. Moore and Vandelan, supra note 42.
78. Memorandum of Understanding, Regional Greenhouse Gas Initiative, Dec. 20, 2005, available at http://www.rggi.org/docs/ mou_12_20_05.pdf.
79. Resources for the future's work on the Regional Greenhouse Gas Initiative, available at http://www.weathervane.rff.org/ solutions_and_actions/United_States/rggi.cfm.
80. DePalma, supra note 69. RGGI signatories in addition to Massachusetts and Rhode Island. Massachusetts and Rhode Island dropped out just days before the MOU was signed. Some critics attribute the dropping out of these two states to the fact that Mass. Governor Mitt Romney, who is expected to run for the Republican nomination for president in 2008, wanted to be able to distance himself from potential rivals, particularly New York Governor George Pataki. Romney has denied that personal politics played any role in his decision. Interestingly, it is much speculated that Pataki will also be seeking the Republican nomination in 2008. It is unclear whether Pataki so strongly supports RGGI, unlike his Massachusetts counterpart, because of a desire to gain a national and potentially international image before the election, or if he wants to distance himself from the main pack of the Republican party.
81. Pennsylvania and Maryland.
82. State observers (Pennsylvania and Maryland) to the RGGI program will fully participate in the planning of the cap and trade system, and per the MOU are invited to fully join the program at any time without needing a majority of the RGGI states to vote in favor of the acceptance. However, they need not, prior to joining RGGI, enact regulatory schemes or legislation to comply with the MOU. Canadian provinces are not, at this stage, invited to join RGGI, but have been included in all of the initial stages of the program. See The Regional Greenhouse Gas Initiative: An Overview of the RGGI Program and Its Importance, Environment Northeast, http://www.env-ne.org/ Program%20Fact%20Sheets/ENE_RGGI_Background.pdf. RGGI is also prepared to allow European Union member states to act as observers.
83. Regional Greenhouse Gas Initiative, http://www.rggi.org.
84. Resources for the future's work on the Regional Greenhouse Gas Initiative, Weathervane, available at http:// www.weathervane.rff.org/solutions_and_actions/United_States /rggi.cfm.
85. "Freeze" means that emissions would be required to not increase between 2009 and 2015.
86. The RGGI program plans to go into effect January 1, 2009.
87. Resources for the future's work on the Regional Greenhouse Gas Initiative, Weathervane, available at http:// www.weathervane.rff.org/solutions_and_actions/United_States /rggi.cfm. Lowering current emissions by 10% in 2020 would put still only put the Northeastern area at about the same level of pollution as all of Germany.
88. Frequently Asked Background Questions, Regional Greenhouse Gas Initiative, http://www.rggi.org/faq.
89. Lawrence Kogan, Precautionary Preference: How Europe's New Regulatory Protectionism Imperils American Free Enterprise, Institute for Trades, Standards and Sustainable Development, Inc., 2005, p. 55, available at http://www.itssd.orgWhite%20Papers/ PrecautionaryPreference-EURegProtectionism-FULLVERSION.pdf.
90. Resources for the Future's Work on the Regional Greenhouse Gas Initiative, Weathervane, http://www.weathervane.rff.org/ solutions_and_actions/United_States/rggi.cfm.
91. Frequently Asked Questions About the Potential Impacts of the Program, What are the Benefits of the RGGI Program?, Regional Greenhouse Gas Initiative, http://www.rggi.org/faq.
92. Pronounced REGGIE.
93. Mark Clayton, One Region's Bid to Slow Global Warming, CHR. SCI. MON., Dec. 22, 2005, at 2.
94. Press Release, Office of Congressman Frank Pallone, Jr., 6th District of New Jersey, Pallone Lands Codey's Action on Climate Change in the Wake of Bush Administration Inaction, Dec. 20, 2005.
95. Eilperin, supra note 55.
96. Margaret Kriz, Environment: Warm-Up Drills, National Journal, 906-911, Mar. 26, 2005 (quoting New Mexico Governor Bill Richardson), available at www.nationaljournal.com.
97. Justin Blum, 'Blue' States Tackling Energy on Their Own: Federal Efficiency Rules Fall Short, Some Say, WASH. POST, Jan. 22, 2006 at A1.
98. Programs like West Coast Governors' Global Warming Initiative, New England Governors: Climate Change Action Plan and Western Governors' Association: Clean and Diversified Energy Initiative. For more information, see, States Participating in Regional Climate Action, Pew Center on Global Climate Change, available at http:// www.pewclimate.org/what_s_being_done/in_the_states/regional.cfm.
99. Telephone Interview with Josh Bushinsky, Pew Center on Global Climate Change in Arlington, Va. (Jan. 18, 2006).
100. Email from Christopher James, Director, Connecticut Department of Environmental Protection (Nov. 2, 2005).
101. While the governors of the seven signatory states have agreed to the MOU, it will ultimately be up to the state legislatures to pass legislation, or for the state to put into effect state regulations in order to comply with the MOU. See also, Kogan, supra note 83, at 54.
102. Margaret Kriz, Environment: Warm-Up Drills, National Journal, 906-911, Mar. 26, 2005, available at www.nationaljournal.com.
103. Telephone Interview with Lawrence Kogan, Institute for Trade, Standards and Sustainable Development in Princeton, NJ, Jan. 18, 2006. What is unclear at this point, and will only become clear as time goes on and as RGGI is experimented with more is whether a state, foreign nation, or corporation could sue another RGGI participant for selling emission credits that they were not entitled to.
104. Northeast Bankcorp v. Bd of Governors of Fed. Reserve Sys., 472 U.S. 159, 175.
105. Id.
106. Id.
107. Email from Christopher James, Director, Connecticut Department of Environmental Protection (Jan. 17, 2006). James does say however that the regulatory committee's role is intended to advisory only, and that real enforcement will have to come at the state level.
108. Northeast Bankcorp, 472 U.S. at 179.
109. Memorandum of Understanding, Regional Greenhouse Gas Initiative, Dec. 20, 2005, http://www.rggi.org/docs/mou_12_20_05.pdf.
110. Id.
111. Northeast Bankcorp, 472 U.S. at 179.
112. Gausman, supra note 36, at 901.
113. Id.
114. An example of an informal interstate compact is the National Association of Attorneys General (NAAG). NAAG primarily serves as a forum for the exchange of information among attorneys general, and also established uniform enforcement standards for the exercise of prosecutorial discretion. "About NAAG" http://www.naag.org/.
115. Intuitively, these compacts offer the best of both worlds, they join states together to solve regional problems, without having to go to Congress for approval. These types of compacts, could just as easily be applied to any sector as they have to environmental compacts. See Robert McKinstry, Jr., Local Solutions for Global Problems: The Debate Over the Causes and Effects of Climate Change and Emerging Mitigation Strategies for States, Localities, and Private Parties, 12 PENN ST. ENVT'L L. REV. 1, 2 "state leadership in environmental issues has been the rule rather than the exception."
116. Email from John Mountjoy, Director of the National Center for Interstate Compacts, The Council of State Governments (Jan. 12, 2006). Mr. Mountjoy further described RGGI, by saying that it works in "much the same way a uniform state law would set uniform standards in states that enacted the legislation."
117. With the recent March 2007 United States Supreme Court decision in Massachusetts v. EPA, it is still unclear whether the EPA will begin to regulate CO2 under the CAA or whether they will again determine that it is not necessary to regulate greenhouse gas emissions. Under the decision, the EPA Administrator does have the authority to regulate these gases under the CAA. It is likely that following the 2008 presidential elections that greenhouse gases will begin to be regulated in this fashion but until then states and should be able to regulate in any fashion they choose.
118. David Sloss, International Agreements and the Political Safeguards of Federalism, 55 STAN. L. REV. 1963 (2003).
119. U.S. v. Belmont, 301 U.S. 324 (1937).
120. Telephone Interview with William Pizer, Nuclear Energy Commission in Washington, D.C., Jan. 19, 2006. Pizer said that RGGI states are "absolutely going behind the backs of those in Washington."
121. United States Steel, 434 U.S. at 471.
122. Kogan, supra note 83, at 58.
123. Some States Flirt with Europe on Carbon Controls, USA TODAY, Dec. 16, 2004. The original nine RGGI states went to Buenos Aires in 2004 for the U.N. conference on climate change and openly criticized the United States' policy on not imposing controls on carbon emissions.
124. Id.
125. Some also argue that RGGI presents problems with interstate commerce, but also with issues of federal preemption. See Kogan supra note 83, at 58.
126. See also McKinsry, supra note 109, at 13.
127. U.S. CONST. art. VI, § 2.
128. U.S. CONST. art. VI, § 2.
129. See Kogan supra note 83, at 55.
130. Commerce Clause, Article I, Section 8, Clause 3, To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
131. "US GHG Regs Seen as Move to Protect European Business," Power, Aug. 24, 2005.
132. For a through understanding of the cap and trade system look to the RGGI Memorandum of Understanding available at Memorandum of Understanding, Regional Greenhouse Gas Initiative, Dec. 20, 2005, http://www.rggi.org/docs/mou_12_20_05.pdf.
133. Kogan supra note 83, at 55.
134. Supra note 116, (quoting Kenneth Colburn, Executive Director for the Northeast States for Coordinated Air Use Management).
135. Blum, supra note 91.
136. Id.
137. Id.
138. U.S. CONST. art. II, §§ 2, 3.
139. U.S. CONST. art. I, § 8 gives Congress the authority to "regulate commerce with foreign nations."
140. Supra note 116.
141. Kogan, supra note 83, at 57. "In terms of other schemes, such as RGGI linking with the EU, as [RGGI] understands the currency issue, as long as the states or regions have in place an enforceable cap which has certainty in terms of expectations, there is a measurement verification protocol, real reductions are occurring, and offsets are allowed under some sort of defined process, there is no reason why RGGI could not link up with other trading schemes-be they part of Kyoto or sub-regional schemes that may come out through Canada, or Australia for example. This is something that [RGGI is] focused on at the moment."
142. Supra note 116.
143. Telephone interview with William Pizer, Senior Economist at the National Commission on Energy, in Washington, D.C. (Jan. 19, 2006).
144. Joseph Kruger and William Pizer, Regional Greenhouse Gas Initiative: Prelude to a National Program?, Backgrounder, Resources for the Future, November 2005 available at http://www.rff.org/rff/Documents/ RFF-BCK-RGGI.pdf.
145. Blum, supra note 91.