Like a nation state

UCLA Law Review

Volumn 55, Issue 6, 2008, Pages 1621-1673

  Kysar, Douglas A ^a   Meyler, Bernadette A ^b  

^a YALE UNIVERSITY   (United States)

^b MIT Sloan School of Management

Author keywords

[No Author keywords available]

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EID: 53349090634     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (328)

1. Governor's Remarks, Office of the Governor of the State of Cal., Gov. Schwarzenegger, British Prime Minister Tony Blair Sign Historic Agreement to Collaborate on Climate Change, Clean Energy (July 31, 2006), available at http://gov.ca.gov/index.php?/print-version/speech/2918. Governor Schwarzenegger in turn cites Tony Blair as his own "action hero" for inspiring him to commit to ambitious greenhouse gas emission reduction goals for the state of California.
2. See Andrew Grice, Blair Hails "Historic Day" in the Battle Against Climate Change, INDEPENDENT, Mar. 14, 2007, Supplement, at 2.
3. Governor's Remarks, supra note 1.
4. See Pew Center on Global Climate Change, State and Local Net Greenhouse Gas Emissions Reduction Programs, available at http://www.pewclimate.org/states.cfm?ID=51 (last visited Mar. 8, 2008).
5. Cf. Governor's Remarks, supra note 1 (noting remarks of Steve Howard, chief executive officer of the Climate Group, stating that Schwarzenegger "said the debate is over in such a compelling way ... [that] the Governor will go down in history as The Emissions Terminator").
6. Id. Such bold proclamations abound. Speaking to the 75th annual meeting of the U.S. Conference of Mayors, Governor Schwarzenegger emphasized that he and his fellow subnational officials were "not waiting for Washington." Governor's Remarks, Office of the Governor of the State of Cal., Governor Speaks at U.S. Conference of Mayors 75th Annual Meeting (June 23, 2007), available at http://gov.ca.gov/index.phpi/print-version/speech/ 6772.
7. As a result, he proudly proclaimed, "We are the ones that are leading the fight against global warming. We are the ones that are creating an American policy that will inspire the rest of the world to join us and to become partners with us, and we are the ones that will ensure a brighter tomorrow for the people, and a brighter tomorrow for our planet." Id. Similarly, writing in the Washington Post with Connecticut Governor Jodi Rell, Schwarzenegger argued, "It's high time the federal government becomes our partner or gets out of the way." Arnold Schwarzenegger & Jodi Rell, Lead or Step Aside, EPA, WASH. POST, May 21, 2007, at A13.
8. See, e.g., LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 150 (2d ed. 1996) ("At the end of the twentieth century as at the end of the eighteenth, as regards U.S. foreign relations, the states 'do not exist.'").
9. See United States v. Belmont, 301 U.S. 324, 331 (1937) ("[I]n respect of our foreign relations generally, state lines disappear. As to such purposes, the state ... does not exist.").
10. Governor's Remarks, supra note 1.
11. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 317 (1936); see also Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 413 (2003) ("There is... no question that at some point an exercise of state power that touches on foreign relations must yield to the National Government's policy, given the 'concern for uniformity in this country's dealings with foreign nations' that animated the Constitution's allocation of the foreign relations power to the National Government in the first place.") (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 427 n.25 (1964));
12. Japan Line Ltd. v. County of LA., 441 U.S. 434, 449 (1979) (recognizing "the Framers' overriding concern that 'the Federal Government must speak with one voice when regulating commercial relations with foreign governments'") (quoting Michelin Tire Corp. v. Wages, 423 U.S. 276, 285 (1976));
13. Zschernig v. Miller, 389 U.S. 429, 436 (1968) (holding unconstitutional "state involvement in foreign affairs and international relations-matters which the Constitution entrusts solely to the Federal Government");
14. United States v. Pink, 315 U.S. 203, 233 (1942) ("Power over external affairs is not shared by the States; it is vested in the national government exclusively.");
15. Hines v. Davidowitz, 312 U.S. 52, 63 (1941) ("The Federal Government, representing as it does the collective interests of the forty-eight states, is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties."). For numerous similar examples, see Edward T. Swaine, Negotiating Federalism: State Bargaining and the Dormant Treaty Power, 49 DUKE L.J. 1127, 1221 n.331 (2000).
16. Thomas W. Merrill, Global Warming as a Public Nuisance, 30 COLUM. J. ENVTL. L. 293, 321 (2005).
17. See, e.g., David R. Hodas, State Law Responses to Global Warming: Is It Constitutional to Think Globally and Act Locally?, 21 PACE ENVTL. L REV. 53, 79, 81 (2003) (addressing a wide variety of state and local GHG initiatives and concluding broadly that "there is simply no federalism concern here" and that "from all constitutional perspectives, it is constitutional for states to react to risks of global warming, or to think globally but act locally");
18. Merrill, supra note 10, at 319-28 (analyzing foreign policy preemption objections to climate change public nuisance litigation and concluding that "the dormant foreign policy preemption argument should fail");
19. Note, Foreign Affairs Preemption and State Regulation of Greenhouse Gas Emissions, 119 HARV. L REV. 1877, 1877 (2006) [hereinafter Note, Foreign Affairs Preemption] ("[Mandatory state limits on GHGs are not preempted by the federal foreign affairs power."). For additional analyses of constitutional issues raised by subnational regulation of greenhouse gases,
20. see Daniel A. Farber, Climate Change, Federalism, and the Constitution, 50 ARIZ L REV. (forthcoming 2008), available at http://papersjsrn.com/sol3/papers.cfm?abstract_id=1081664;
21. Erwin Chemerinsky et al., California, Climate Change, and the Constitution, 37 ENVTL. L. REP. 10653, 10653 (2007) (providing a "practical road map for California and other states attempting to reduce [GHG] emissions without violating the dictates of the Constitution");
22. Kirsten H. Engel, Mitigating Global Climate Change in the United States: A Regional Approach, 14 N.Y.U. ENVTL. L.J. 54 (2005);
23. Michael A. Mehling, Bridging the Transatlantic Divide: Legal Aspects of a Link Between Regional Carbon Markets in Europe and the United States, 7 SUSTAINABLE DEV. L. & POL'Y 46 (2007);
24. Brian H. Potts, Regulating Greenhouse Gas 'Leakage': How California Can Evade the Impending Constitutional Attacks, ELECTRICITY J., June 2006, at 43;
25. Claire Carothers, Note, United We Stand: The Interstate Compact as a Tool for Effecting Climate Change, 41 GA. L. REV. 229 (2006);
26. 2 Cap-and-Trade Programs, 28 THOMAS JEFFERSON L. REV. 205 (2005).
27. See, e.g., Garamendi, 539 U.S. at 436 n.3 (Ginsburg, J., dissenting) ('"One is compelled to conclude that there are agreements which the President can make on his sole authority and others which he can make only with the consent of the Senate (or of both houses), but neither Justice Sutherland... nor any one else has told us which are which.'" (quoting HENKIN, supra note 6, at 222)).
28. The system also could be displaced by less direct federal activity, as appears to have happened late last year when the Environmental Protection Agency (EPA) used newly passed federal fuel economy standards as a ground for denying California's waiver request under the Clean Air Act to regulate GHG emissions from mobile sources. See infra note 24.
29. See Douglas Kysar & Ya-Wei Li, Regulating From Nowhere: Domestic Environmental Law and the Nation-State Subject, in 2 THE IMPACT OF GLOBALIZATION ON THE UNITED STATES: LAW AND GOVERNANCE (Beverly Crawford ed.) (forthcoming 2008).
30. See Julian G. Ku, Gubernatorial Foreign Policy, 115 YALE L.J. 2380, 2412-14 (2006).
31. Writing from a very different vantage point, Michael Hardt and Antonio Negri have also affirmed the increasing relation between the local and the global, one that they believe may displace the nation state. According to Hardt and Negri, "each struggle, though firmly rooted in local conditions, leaps immediately to the global level." MICHAEL HARDT & ANTONIO NEGRI, EMPIRE 56 (2000).
32. For such a normative account, see Jonathan B. Wiener, Think Globally, Act Globally: The Limits of Local Climate Policies, 155 U. PA. L REV. 1961, 1962 (2007) (maintaining that "subnational state-level action is not the best way to combat global climate change" because "local action is not well suited to regulating mobile global conduct yielding a global externality"). A large body of literature has addressed the more general question of whether state and local participation in foreign affairs is normatively desirable.
33. See, e.g., Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 AM. J. INT'L L 821, 829 (1989) (arguing that, "[t]o the extent that state and local actions express citizen and community views, raise public consciousness and add to robust debate on important public policies, they serve an important public function");
34. Martin S. Flaherty, Are We to Be a Nation? Federal Power vs. "States' Rights" in Foreign Affairs, 70 U. COLO. L REV. 1277 (1999) (contending that the Supreme Court's federalist revival poses a significant and undesirable threat to national supremacy in foreign affairs);
35. Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 VA. L REV. 1617, 1622-23 (1997) (advancing the claim that "as the category of foreign relations comes to include matters traditionally regulated by states in which the states have a genuine interest, prevailing understandings of American federalism require that the decision to regulate these matters by federal law be made through political deliberations in which the states have a voice");
36. Daniel Halberstam, The Foreign Affairs of Federal Systems: A National Perspective on the Benefits of State Participation, 46 VILL. L. REV. 1015, 1028 (2001) ("[A]lthough tensions between state and federal policies do emerge periodically, state activities often benefit the Nation.");
37. Ku, supra note 15, at 2414 ("[A] system of gubernatorial foreign policy is the most practical and feasible way to accommodate the internationalizing pressure of globalization with the traditional conception of federalism still extant in U.S. constitutional jurisprudence.").
38. See Ann Carlson, Iterative Federalism and Climate Change (UCLA Sch. of Law Research Paper No. 08-09, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1115556;
39. see also David E. Adelman & Kirsten H. Engel, Adaptive Federalism: The Case Against Reallocating Environmental Regulatory Authority (Ariz. Legal Studies, Discussion Paper No. 07-23, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1016767.
40. See, e.g., Wiener, supra note 16.
41. See Carlson, supra note 17.
42. Governor's Remarks, supra note 5.
43. See, e.g., BARRY G. RABE, STATEHOUSE AND GREENHOUSE: THE EMERGING POLITICS OF AMERICAN CLIMATE CHANGE POLICY (2004);
44. John Dernbach, Moving the Climate Change Debate From Models to Proposed Legislation: Lessons From State Experience, 30 ENVTL L REP. 10933 (2000);
45. Engel, supra note 11;
46. Hodas, supra note 11;
47. Laura Kosloff & Mark Trexler, State Climate Change initiatives: Think Locally, Act Globally, 18 NAT. RESOURCES & ENV'T 46 (2004);
48. Carolyn Kousky & Stephen H. Schneider, Global Climate Policy: Will Cities Lead the Way?, 3 CLIMATE POL'Y 359 (2003);
49. Robert B. McKinstry, Jr., Laboratories for Local Solutions for Global Problems: State, Local and Private Leadership in Developing Strategies to Mitigate the Causes and Effects of Climate Change, 12 PENN. ST. ENVL. L. REV. 15 (2004);
50. Merrill, supra note 10;
51. Wiener, supra note 16. A catalogue of such initiatives can be found at Pew Center on Global Climate Change, What's Being Done ... In the States, http://www.pewclimate.org/what_s_being_done/in_the_states (last visited Mar. 14, 2008).
52. See, e.g., Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 267 (S.D.N.Y. 2005) (dismissing federal common law nuisance action brought by a coalition of states and nongovernmental organizations against major GHG emitters);
53. Complaint for Damages and Declaratory Judgment, California ex rel. Lockyer v. Gen. Motors Corp., No. 06-05755 (N.D. Cal. Sept. 20, 2006) (bringing common law liability claim against major automakers).
54. See, e.g., Massachusetts v. EPA, 127 S. Ct. 1438 (2007) (finding that the Commonwealth of Massachusetts has standing to challenge the EPA's failure to regulate mobile sources of GHG emissions and that the agency has statutory authority to regulate such emissions under the Clean Air Act);
55. Coke Oven Envtl. Task Force v. EPA, No. 06-1182, 2007 WL 707329 (D.C. Cir. June 23, 2006) (challenging the EPA's failure to regulate stationary sources of GHG emissions under the Clean Air Act).
56. See Cal. Health & Safety Code § 43018.5 (West 2007). This 2002 Act requires the California Air Resources Board (CARB) to "develop and adopt regulations that achieve the maximum feasible and cost-effective reduction of greenhouse gas emissions from motor vehicles." Id. In September 2004, CARB approved regulatory amendments to California's existing motor vehicle standards that required compliance by automakers with new vehicle emissions limits for carbon dioxide, methane, nitrous oxide, and hydrofluorocarbons beginning in the 2009 model year. Cal. Envtl. Prot. Agency Air Res. Bd., Fact Sheet: Climate Change Emission Control Regulations (Dec. 10, 2004), http://www.arb.ca.gov/cc/ccms/factsheets/cc_newfs.pdf. Under section 209 of the federal Clean Air Act, any such state motor vehicle emissions regulation is preempted unless issued by a state that had already adopted emissions control standards prior to March 30, 1966, and unless the state is granted a waiver by the EPA. Clean Air Act, 42 U.S.C. § 7543 (2000). California, as the only state eligible for this exemption, has historically received waivers from the EPA on a routine basis, an authorization that then enables any other state to adopt regulations identical to California's more protective standards. Nevertheless, after a contentious two-year negotiating process - during which the Supreme Court issued its dramatic opinion in Massachusetts v. EPA and two federal district courts cleared the way for state regulation of motor vehicle GHG emissions by denying industry preemption challenges to the California regulations based on the Energy Policy and Conservation Act-the EPA ultimately denied California's waiver request.
57. See Carlson, supra note 17, at 30.
58. For instance, the California Global Warming Solutions Act of 2006, A.B. 32, 2005-2006 Leg., Reg. Session (Cal. 2006) (codified at CAL. HEALTH & SAFETY CODE §§ 38500-38599 (West Supp. 2008)), requires the state to achieve a 25 percent reduction in its GHG emissions by 2020. By executive order, Schwarzenegger also has committed the state to reducing its emissions to 80 percent below 1990 levels by the year 2050. See Cal. Exec. Order No. S-3-05 (2005), available at http://www.dot.ca.gov/hq/energy/ExecOrderS-3-05.htm. Similarly, Maine passed legislation in 2003 that requires the state to reduce carbon dioxide emissions to 1990 levels by 2010, and then to 90 percent of 1990 levels by 2020. ME. REV. STAT. ANN. tit. 38 §§ 574-789 (Supp. 2007).
59. See Engel, supra note 11, at 56 (observing that state renewable portfolio standards might collectively reduce U.S. emissions by 1 to 1.5 percent below "business as usual" levels by 2015-2020).
60. More than 800 mayors in communities representing more than seventy-seven million individuals signed the U.S. Conference of Mayors Climate Protection Agreement, under which they agreed to reduce GHG emissions in their communities by 7 percent below 1990 levels by 2012. See Mayors Climate Protecting Center, List of Participating Mayors, http://usmayors.oig/climateprotection/list.asp (last visited Mar. 14, 2008).
61. This view was most prominently expressed in the 1997 Byrd-Hagel Resolution, which was passed by a 95-0 vote of the U.S. Senate and which declared that body's intention to reject any treaty or other agreement requiring Senate approval that did not include a binding GHG emissions schedule for developing nations or that "would result in serious harm to the economy of the United States." Byrd-Hagel Resolution, S. Res. 98, 105th Cong. (1997). In 2005, the Senate's stance softened somewhat, with the McCain-Lieberman Climate Stewardship and Innovation Act attracting thirty-eight votes and a new resolution calling for a mandatory national emissions cap receiving fifty-four votes. See Wiener, supra note 16, at 1963 n.9. The latter statement, dubbed the Bingaman-Domenici Resolution, still indicated that any national legislation must "not significantly harm the United States economy" and must "encourage comparable action by other nations that are major trading partners and key contributors to global warming." 151 Cong. Rec. S7037 (2005). As of the writing of this Article, numerous climate-related bills were being debated in Congress, most of which linked domestic legislative action with a need to pursue comparable restrictions on other nations.
62. See, e.g., H.R. COMM. ON ENERGY AND COMMERCE & SUBCOMM. ON ENERGY AND AIR QUALITY, CLIMATE CHANGE LEGISLATION DESIGN WHITE PAPER: COMPETITIVENESS CONCERNS/ENGAGING DEVELOPING COUNTRIES 2 (2008) [hereinafter H.R. COMM. ON ENERGY AND COMMERCE], available at http://energycommerce.house.gov/ climate_change/white_paper.competitiveness.013108.pdf ("[P]ast action on climate change suggests that Congress would be unlikely to adopt legislation committing the U.S. to reduce its GHG emission limits without action by developing countries as well.").
63. Hodas, supra note 11, at 53.
64. See supra note 1 and accompanying text.
65. CAL. HEALTH & SAFETY CODE § 38550 (West Supp. 2008).
66. Id. § 38501.
67. Id. § 38530(c)(2).
68. Id. § 38561(c).
69. Id. § 38564.
70. See Cal. Exec. Order No. S-20-06 (2006), available at http://gov.ca.gov/executive-order/4484; see also Chemerinsky et al., supra note 11, at 10653 ("Although [A.B. 32] does not directly call upon [CARB] to use market-based solutions to reduce emissions, it seems that [CARB], along with many of California's leaders, prefers a cap-and-trade program over other alternatives.").
71. See Press Release, Office of the Governor, Governor Schwarzenegger Announces Executive Order (Oct. 16, 2006), available at http://gov.ca.gov/index.php?/press-release/4447.
72. MKT. ADVISORY COMM., CAL. AIR RES. BD., RECOMMENDATIONS FOR DESIGNING A GREENHOUSE GAS CAP-AND- TRADE SYSTEM FOR CALIFORNIA (2007), available at http://www.climatchande.ca.gov/documents/2007-06-29_MAC_FlNAL_REPORT.PDF [hereinafter MARKET ADVISORY COMM.].
73. Id. at 18-78.
74. Id. at 71.
75. See, e.g., Chemerinsky et al., supra note 11, at 10654-59.
76. See H.R. COMM. ON ENERGY AND COMMERCE, supra note 28, at 8.
77. For both international trade and dormant Commerce Clause analyses, this is a strong assumption. See Joost Pauwelyn, U.S. Federal Climate Policy and Competitiveness Concerns: The Limits and Options of International Trade Law (Nicholas Inst. for Env't Policy Solutions, Duke Univ., Working Paper No. 07-02, 2007), available at http://www.nicholas.duke.edu/institute/ internationaltradelaw.pdf;
78. Patricia Weisselberg, Note, Shaping the Energy Future in the American West: Can California Curb Greenhouse Gas Emissions From Out-Of-State, Coal-Fired Power Plants Without Violating the Dormant Commerce Clause?, 42 U.S.F. L. REV. 185 (2007).
79. MARKET ADVISORY COMM., supra note 38, at 6.
80. See H.R. COMM. ON ENERGY AND COMMERCE & SUBCOMM. ON ENERGY AND AIR QUALITY, CLIMATE CHANGE LEGISLATION DESIGN WHITE PAPER: APPROPRIATE ROLES FOR DIFFERENT LEVELS OF GOVERNMENT 11 (2008), available at http://energycommerce.house.gov/climate_change/ white%20paper%2Ost-lcl%20roles%20final%202-22.pdf ("Unlike most air pollutants, local [GHG] reductions alone will not help the local area given that climate change is caused by global, rather than local, concentrations of greenhouse gases."). We say "largely" because many GHG emissions reductions also entail reductions in other pollutants, such as traditional criteria air pollutants regulated under the Clear Air Act, that have more localized environmental and human health effects. In such contexts, the normative case for emissions trading becomes complicated by the need to take account of the distributive outcome of permit trading.
81. See Jonathan Remy Nash & Richard L Revesz, Markets and Geography: Designing Marketable Permit Schemes to Control Local and Regional Permits, 28 ECOL. L.Q. 569 (2001).
82. MARKET ADVISORY COMM., supra note 38, at 69.
83. Id.
84. x programs) and between the federal government and states (as with RGGI) keep[] transaction[] costs low and confidence in the market and in program compliance high. Differences in protocols should be carefully considered and justified.").
85. See Cass R. Sunstein, The World vs. the United States and China? The Complex Climate Change Incentives of the Leading Greenhouse Gas Emitters, 55 UCLA L. REV. 1675 (2008).
86. H.R. COMM. ON ENERGY AND COMMERCE & SUBCOMM. ON ENERGY AND AIR QUALITY, CLIMATE CHANGE LEGISLATION DESIGN WHITE PAPER: SCOPE OF A CAP-AND-T RADE PROGRAM 2 (2007), available at http://energycommerce.house.gov/climate_change/white_paper.10307.pdf.
87. MARKET ADVISORY COMM., supra note 38, at 71.
88. See Regional Greenhouse Gas Initiative (RGGI), http://www.rggi.org (last visited Mar. 14, 2008).
89. See Regional Greenhouse Gas Initiative (RGGI), Participating States, http://www.rggi.org/states (last visited Mat. 14, 2008).
90. See Western Climate Initiative, http://www. westemclimateinitiative.org (last visited Mat. 14, 2008).
91. Press Release, Western Climate Initiative, Five Western Governors Announce Regional Greenhouse Gas Reduction Agreement (Feb. 26, 2007), available at http://www.westernclimateinitiative.org/ewebeditpro/items/O104F12774. pdf; see also Press Release, Office of the Governor of the State of CaL, Governor Schwarzenegger Applauds Nine Midwest States for Creating Regional Climate Partnership (Nov. 15, 2007), available at http://gov.ca.gov/index.php?/ print-version/press-release/8109 (noting that Utah and the provinces of Manitoba and British Columbia have joined the WCI). Again, California has been particularly aggressive in pursuing cooperative regulatory arrangements with other jurisdictions. In addition to the WCI, California also has signed memoranda of understanding regarding climate change regulatory coordination with Great Britain, the Canadian provinces of British Columbia and Ontario, and the Australian state of Victoria.
92. See sources cited infra note 62.
93. Although these agreements typically state that they are "not intended to create any legally binding rights or obligations, and will not be enforceable in any court of law," they nevertheless evince a strong commitment to "the leadership role of sub-national jurisdictions in driving global climate change solutions." Memorandum of Understanding Between the State of Victoria and the State of California for Collaboration on Climate Change Action (May 4, 2007), available at http://gov.ca.gov/pdf/press/ 070506_climate_change_document.pdf.
94. For a similar arrangement between Florida and Germany, see Partnership on Global Climate Change Action Between the Federal Republic of Germany and the State of Florida (July 13, 2007), available at http://fsec.ucf.edu/en/ media/enews/2007/pdf/20070713-FRG-FL-partnership.pdf (establishing a "partnership" on global climate change action between Florida and Germany, as detailed through a "Joint Declaration of Intent").
95. See Midwest Greenhouse Gas Accord (Nov. 15, 2007), available at http://www.wisgov.state.wi.us/docview.asp?docid=12497.
96. See The Climate Registry, http://www.theclimateregistry.org (last visited Mar. 14, 2008).
97. See Frequently Asked Questions About the International Carbon Action Partnership (ICAP) 1 (May 14, 2008), available at http://www.icap-carbonaction.com/docs/icap-faqs.pdf.
98. See supra note 55.
99. See Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151 (E.D.Cal. 2007).
100. See Engel, supra note 11, at 75 (suggesting that the largely voluntary nature of state and local climate change action "could demonstrate upfront compliance with the Compact Clause");
101. Note, The Compact Clause and the Regional Greenhouse Gas Initiative, 120 HARV. L REV. 1958, 1979 (2007) (concluding that the Memorandum of Understanding establishing RGGI should survive Compact Clause challenge).
102. See, e.g., Memorandum of Understanding Between the State of Washington and the Province of British Columbia on Pacific Coast Collaboration to Protect Our Shared Climate and Ocean (June 2007), avaiable at http://www.maritimeawards.ca/OGCWC/Docs/Agreements/BC_WA_CAO_Agreement.pdf ("Action on our Shared Pacific Ocean: II. Washington and British Columbia commit to work together to:... B. Share best ptactices on protecting marine habitats off our coasts.");
103. Partnership on Global Climate Change Action Between the Federal Republic of Germany and the State of Florida, supra note 55 ("The purpose of this statement is to outline an aggressive agenda for partnership that supports the climate policies of each partner and provides mutual economic benefits to the Federal Republic of Germany and the State of Florida.");
104. Memorandum of Understanding Between the State of Victoria and the State of California for Collaboration on Climate Change Action, supra note 55 ("This MOU ... recognises the value of collaboration in pursuing best-practices policies and technologies for greenhouse gas emissions reduction and adaptation to climate change."). Cf. David Zaring, Best Practices, 81 N.Y.U. L REV. 294, 294, 313 (2006) (explaining the rise in the use of the "best practices" model by administrative agencies and attributing its increasing popularity to "its prominence in two other areas: 1) business management, and 2) international cooperation").
105. This approach has been similar in important respects to the Administration's attempt to achieve preemption of state regulation and state tort law through federal agency assertion of a conflict with federal executive branch decisions not to regulate. See generally Nina A. Mendelson, A Presumption Against Agency Preemption, 102 NW. U. L REV. 695 (2008). Such an effort is well illustrated by another conflict between the Bush Administration and the State of California that revolved around the state's effort to apply Proposition 65's disclosure requirement to mercury contaminations in seafood sold at supermarkets. In that episode, the executive branch's assertion of preemption came in the form of a letter to the Attorney General of California, arguing that the EPA and the Food and Drug Administration had jointly determined that point-of-sale mercury disclosure should not be required because consumers would potentially overreact to the information.
106. See Katherine Renshaw, Note, Sounding Alarms: Does Informational Regulation Help or Hinder Environmentalism? 14 N.Y.U. ENVTL. L.J. 654, 682-83, 688, 696 n. 203 (2006);
107. Bob Egelko, FDA Opposing State Warnings on Canned Tuna: Top Official Sides With Firms in Mercury Suit, S.F. CHRON., Aug. 20, 2005, at B1.
108. See Carlson, supra note 17.
109. See, e.g., EPA, Control of Emissions From New Highway Vehicles and Engines, 68 Fed. Reg. 52922, 52931 (Sept. 8, 2003) ("Unilateral EPA regulation of motor vehicle GHG emissions could also weaken U.S. efforts to persuade key developing countries to reduce the GHG intensity of their economies.");
110. see also Brief for the Federal Respondent, Massachusetts v. EPA, 127 S. Ct. 1438 (2007) (No. 05-1120).
111. 539 U.S. 396 (2003).
112. Id. at 423-25.
113. Id. at 406.
114. Id. at 424.
115. Merrill, supra note 10, at 325 ("The Court's recent foreign policy preemption cases seem less concerned with the specific legal authority for preemption than with the general proposition that States should not interfere with federal bargaining chips.").
116. Garamendi, 539 U.S. at 427.
117. Cf. Central Valley Chrysler-Jeep, Inc. v. Goldstene, 529 F. Supp. 2d 1151, 1187 (E.D. Cal. 2007) ("Plaintiff's 'bargaining chip' theory of interference only makes logical sense if it would be a rational negotiating strategy to refuse to stop pouring poison into the well from which all must drink unless your bargaining partner agrees to do likewise.").
118. See Medellín v. Texas, 128 S. Ct. 1346, 1367-68 (2008); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).
119. 299 U.S. 304 (1936).
120. 453 U.S. 654 (1981).
121. For the invocation of independent presidential power in the foreign affairs and foreign relations arena, see Michael P. Van Alstine, Executive Aggrandizement in Foreign Affairs Lawmaking, 54 UCLA L. REV. 309, 325 (2006) ("Predictably, the present administration has now seized on Garamendi and its apparently reinvigorated ancestors as a springboard for the comprehensive claim that the president has a discretionary and unreviewable power both to define and to compel domestic compliance with international law.");
122. Brief for the United States as Amicus Curiae Supporting Petitioner at 12, 13, Medellín v. Texas, 128 S. Ct. 1346 (2008) (No. 06-984) ("[I]t is the President who is responsible for the conduct of foreign relations. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1963).... In a series of cases, the Court has upheld the President's authority to determine individual rights as part of settling disputes with foreign nations ... Garamendi, 539 U.S. [at] 396...;
123. Dames & Moore, [453 U.S. at 680]....The President may exercise this dispute resolution authority without seeking the consent of the Senate or approval from Congress... and the exercise of such authority preempts conflicting state law." (citations omitted));
124. Brief for the Respondents at 12, Rasul v. Bush, 542 U.S. 507 (2004) (Nos. 03-334, 03-343) ("The Constitution commits to the political branches and, in particular, the President, the responsibility for conducting the nation's foreign affairs and military operations.");
125. Brief for the United States as Respondent Supporting Petitioner at 31, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-339) ("It is the 'plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations' to decide 'the important complicated, delicate and manifold problems of foreign relations'" (citing Curtiss-Wright, 299 U.S. at 319-20; Garamendi, 539 U.S. at 414)).
126. A recent signing statement demonstrates the extent to which President Bush envisions his foreign affairs power as predominating - at least in certain circumstances - even over Congress' contrary will. When signing the Sudan Accountability and Divestment Act of 2007, which authorizes state and local governments to divest financially from firms doing business in certain areas of Sudan, President Bush observed that, "as the Constitution vests the exclusive authority to conduct foreign relations with the Federal Government, the executive branch shall construe and enforce this legislation in a manner that does not conflict with that authority." Press Release, Office of the Press Secretary, Statement by the President (Dec. 31, 2007), available at http://www.whitehouse.gov/news/releases/2007/12/20071231.html. The Act itself expressly states that "[a] measure of a State or local government authorized under [the Act] is not preempted by any Federal law or regulation." Sudan Accountability and Divestment Act of 2007, Pub. L. 110-174, 121 Stat. 2516. The president's purported reservation of authority suggests, however, that he himself might seek to overrule specific acts of divestment by state and local governments, despite Congress' plain intent to provide detailed and exclusive conditions for authorized divestments through the statute.
127. See, e.g., Curtis Bradley, Unratified Treaties, Domestic Politics, and the U.S. Constitution, 48 HARV. INT'L L.J. 307, 324 (2007) ("Despite [its] broad language, the Court [in Garamendi] did not suggest that the executive had unlimited authority, even through executive agreements, to preempt state law.") (2007);
128. Brannon P. Denning & Michael D. Ramsey, American Insurance
129. Van Alstine, supra note 76, at 346-47 (explaining that broad readings of the extent of presidential power in foreign affairs under Garamendi fail to understand the importance to the Court of Congress' acquiescence to the kinds of activities in which the president was engaging in that case).
130. 128 S. Ct. 1346 (2008).
131. 343 U.S. 579 (1952).
132. Medellín, 128 S. Ct. at 1367 ("The United States maintains that the President's constitutional role 'uniquely qualifies' him to resolve the sensitive foreign policy decisions that bear on compliance with an [International Court of Justice] decision and 'to do so expeditiously.'... In this case, the President seeks to vindicate United States interests in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law. These interests are plainly compelling.
133. Such considerations, however, do not allow us to set aside first principles....Justice Jackson's familiar tripartite scheme [from Youngstoum] provides the accepted framework for evaluating executive action in this area.") (quoting Brief for United States as Amicus Curiae Supporting Petitioner at 11, 12, Medellín, 128 S. Ct. 1346 (No. 06-984)).
134. Id. at 1368 (quoting Youngstown, 343 U.S. at 635, 637-38 (Jackson, J., concurring)).
135. Compare Hamdi v. Rumsfeld, 542 U.S. 507, 552 (2004) (Souter, J., concurring) (deeming the executive branch's detention of Hamdi not sanctioned by Congress' Authotization for the Use of Military Force (AUMF) and therefore involving the "lowest ebb" of the president's power under Justice Jackson's framework from Youngstown), with Hamdi v. Rumsfeld, 542 U.S. at 517 (O'Connor, J., plurality opinion) (determining that the AUMF did allow for Hamdi's detention).
136. Ernest Young, The Constitution Outside the Constitution, 117 YALE L.J. 408, 442 (2007).
137. 530 U.S. 363 (2000).
138. Id. at 377.
139. Dames & Moore v. Regan, 453 U.S. 654 (1981).
140. Although Chief Justice Rehnquist, in Dames & Moore, invoked Justice Jackson's categories from Youngstown, he indicated that they represented more of a malleable standard than a clear rule: "Although we have in the past found and do today find Justice Jackson's classification of executive actions into three general categories analytically useful, we should be mindful of Justice Holmes' admonition.... that '[t]he great ordinances of the Constitution do not establish and divide fields of black and white.'... Justice Jackson himself recognized that his three categories represented 'a somewhat over-simplified grouping,'... and it is doubtless the case that executive action in any particular instance falls, not neatly into one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail." Id. at 669.
141. Youngstown, 343 U.S. at 610-11.
142. As the Crosby Court put it, "We need not get into any general consideration of limits of state action affecting foreign affairs to realize that the President's maximum power to persuade rests on his capacity to bargain for the benefits of access to the entire national economy without exception for enclaves fenced off willy-nilly by inconsistent political tactics." Crosby, 530 U.S. at 382;
143. see also id. at 377 ("Quite simply, if the Massachusetts law is enforceable the President has less to offer and less economic and diplomatic leverage as a consequence.... [T]he state Act reduces the value of the chips created by the federal statute. It thus 'stands as an obstacle to the accomplishment and execution of the foil purposes and objectives of Congress.'").
144. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 422 (2003) (citing the views articulated at "high levels of the Executive Branch").
145. Id. at 415 (quoting U.S. v. Pink, 315 U.S. 203, 240 (1942)).
146. See Youngstown, 343 U.S. at 637 (Jackson, J., concurring).
147. 512 U.S. 298 (1994).
148. Id. at 326.
149. Id. at 329-30 ("Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional California's otherwise valid, congressionolly condoned, use of worldwide combined reporting." (emphasis added)).
150. Id.
151. Id. at 324-28.
152. Id. at 328-29;
153. see also Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 385-86 (2000) (distinguishing Barclays Bank on the ground that the majority in the latter case had "found the reactions of foreign powers and the opinions of the Executive irrelevant in fathoming congressional intent because Congress had taken specific actions rejecting the positions both of foreign governments ... and the Executive").
154. See Green Mountain Chrysler Plymouth v. Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007); Central Valley Chrysler-Jeep, Inc. v. Goldstene, 2007 WL 4372878 (E.D. Cal.);
155. see also Note, Foreign Affairs Preemption, supra note 11, at 1889 ("The record of congressional and executive actions does not clearly establish that the federal government is committed to pursuing a binding multilateral agreement on climate change.").
156. See Re Integration of Greenhouse Gas Emissions Standards Into Procurement Policies, Rulemaking Proceeding 06-04-009, Decision 07-01-039 (California Public Utilities Commission 2007), 2007 WL 403573, at *91-92 [hereinafter CPUC Proceeding].
157. Central Valley Chrysler-Jeep, 529 F. Supp. 2d 1186-87 ("The term 'policy' as used in Zschernig and its progeny refers to a concrete set of goals, objectives, and/or means to be undertaken to achieve a predetermined result....In order to conflict or interfere with foreign policy within the meaning of Zschemig, Garamendi or related cases, the interference must be with a policy, not simply with the means of negotiating a policy.").
158. Cf. David A. Wirth, A Matchmaker's Challenge: Marrying International Law and American Environmental Law, 32 VA. J. INT'L L. 377, 420 (1992) ("Through its own inattention, by Executive Branch design, or both, the Congress has been marginalized in the negotiation and implementation of many international environmental agreements.").
159. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003).
160. 127 S. Ct. 1438 (2007).
161. See id. at 1462-63.
162. Id. at 1463.
163. See id. at 1448. Specifically, in the Global Climate Protection Act of 1987, Congress directed the president to develop a national policy on climate change, but called upon the secretary of state "to coordinate those aspects of United States policy requiring action through the channels of multilateral diplomacy." Pub. L No. 100-204, § 1103(b)-(c), 101 Stat. 1407, 1408-09 (1987) (codified as amended at 15 U.S.C. § 2904(b)-(c)(2000)).
164. In Garamendi, by contrast, the Court failed to engage in a detailed inquiry regarding which departments and which officials were seen to be representing executive branch foreign policy because, again, the Court perceived no potential conflict between Congress and the president. See Garamendi, 539 U.S. at 423 n.13 ("The dissent would also dismiss the other Executive Branch expressions of the Government's policy ... insisting on nothing short of a formal statement by the President himself.... But there is no suggestion that these high-level executive officials were not faithfully representing the president's chosen policy, and there is no apparent reason for adopting the dissent's 'nondelegation' rule to apply within the Executive Branch.").
165. Massachusetts v. EPA, 127 S. Ct. at 1462 ("While the Congresses that drafted § 202(a)(1) might not have appreciated the possibility that burning fossil foels could lead to global warming, they did understand that without regulatory flexibility, changing circumstances and scientific developments would soon render the Clean Air Act obsolete.").
166. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637-38 (1952) (Jackson, J., concurring). For a discussion of the history of presidential action at this "lowest ebb,"
167. see David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb - A Constitutional History, 121 HARV. L. REV. 941 (2008).
168. See supra note 28 (describing recent signs of support within Congress for domestic GHG emissions reductions perhaps even in advance of multilateral commitment).
169. See supra note 95 and accompanying text.
170. Garamendi, 539 U.S. at 419 n.11 (quoting Zschernig v. Miller, 389 U.S. 429, 459 (1968));
171. see also id. at 442 (Ginsburg, J., dissenting) ("The displacement of state law by preemption properly requires a considerably more formal and binding federal instrument.").
172. 426 U.S. 794 (1976).
173. Id. at 809 ("Maryland entered the market for the purpose, agreed by all to be commendable as well as legitimate, of protecting the State's environment."); id. at 814 ("The 1974 amendment bears a rational relationship to Maryland's purpose of using its limited funds to clean up its own environment.").
174. See, e.g., Rapanos v. United States, 547 U.S. 715, 738 (2006) (Scalia, J., plurality opinion) (speaking of the "[regulation of land use" as "a quintessential state and local power" and an "area of traditional state authority").
175. Garamendi, 539 U.S. at 425-26.
176. Id. at 426.
177. Id.
178. Id. at 426-27.
179. See, e.g., Chemerinsky et al., supra note 11, at 10663 ("As compared to the limited aim of redressing Holocaust victims in Garamendi, a GHG emissions trading scheme would have much broader relevance for the entire state.").
180. 15 U.S.C. § 1011 (2000).
181. Garamendi, 539 U.S. at 428.
182. Later, Justice Souter's opinion for the Court stated that "it is worth noting that Congress has done nothing to express disapproval of the President's policy." Id. at 429. Again, the impression that Congress had "done nothing" arguably only arose because the Court had construed the McCarran-Ferguson Act to avoid a conflict with the president's asserted foreign affairs position.
183. See Chemerinsky et al., supra note 11, at 10654-59
184. See MARKET ADVISORY COMM., supra note 38, at 69.
185. Id. at 72;
186. see also W. CLIMATE INITIATIVE, STATEMENT OF REGIONAL GOAL (2007), available at http://westernclimateinitiative.org/ewebeditpro/items/O104F13006.pdf (listing considerations with respect to proposed new members for "determining whether the new entrant is undertaking comparable efforts to meet the challenge of climate change" to the efforts of existing members).
187. Leanne Wilson, Note, The Fate of the Dormant Foreign Commerce Clause After Garamendi and Crosby, 107 COLUM. L. REV. 746, 747 (2007).
188. 389 U.S. 429 (1968).
189. Some commentators also regard Garamendi as a dormant foreign affairs preemption case, in the sense that Justice Souter's majority opinion is amenable to an expansive field preemption interpretation that would render it functionally quite similar to dormant foreign affairs preemption. See, e.g., Chemerinsky et al., supra note 11, at 10662;
190. Joseph B. Crace, Jr., Note, Gara-mending the Doctrine of Foreign Affairs Preemption, 90 CORNELL L REV. 203, 213 (2004) (observing that the Garamendi Court may have been invoking foreign affairs preemption, despite the claim of conflict preemption);
191. Todd Steigman, Note, Lowering the Bar: Invalidation of State Laws Affecting Foreign Affairs Under the Dormant Foreign Affairs Power After American Insurance Association v. Garamendi, 19 CONN. J. INT'LL. 465 (2004).
192. Others view Garamendi as a more conventional conflict preemption case. See, e.g., Note, Foreign Affairs Preemption, supra note 11. In truth, Justice Souter in Garamendi dodged the question of whether the California Holocaust Victim's Insurance Relief Act of 1999 only foundered because of a direct conflict with the executive agreements establishing Holocaust claims mechanisms, as opposed to being more broadly vulnerable as an overreaching of state authority.
193. See Garamendi, 539 U.S. at 419-20 ("It is a fair question whether respect for the executive foreign relations power requires a categorical choice between the contrasting theories of field and conflict preemption evident in the Zschemig opinions....[T]he question requires no answer here." (footnote omitted)).
194. Zschernig v. Miller, 389 U.S. 429 (1968).
195. Wilson, supra note 128, at 759 n.88
196. (quoting Brief for United States as Amicus Curiae, at 6 n.5, Zschernig, 389 U.S. 429 (No. 21)).
197. Zschernig, 389 U.S. at 432.
198. Id. at 434, 435.
199. See Peter J. Spiro, Foreign Relations Federalism, 70 U. COLO. L REV. 1223, 1226 (1999) (noting the joint role of the dormant Foreign Commerce Clause and the dormant foreign affairs power in protecting federal foreign affairs exclusivity).
200. 441 US. 434 (1979).
201. Id. at 451.
202. Although the Court sometimes cites the same precedents for the importance of maintaining "one voice" in the foreign affairs and Foreign Commerce Clause arenas, which voice is designated seems quite different in the two contexts. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003) (citing Japan Line, 441 U.S. 434, a foreign commerce clause case).
203. With respect to foreign affairs, the operative voice is that of the president; hence, in Garamendi, Justice Souter wrote that "[t]he law thus 'compromise[s] the very capacity of the President to speak for the Nation with one voice in dealing with other governments' to resolve claims against European companies arising out of World War II." Garamendi, 539 US. at 424 (citing Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 381 (2000)).
204. With respect to foreign commerce, by contrast, the specified voice is that of the federal government as a whole; thus, in Barclays Bank, Justice Ginsburg discussed "the Federal Government's capacity to 'speak with one voice when regulating commercial relations with foreign governments."' Barclays Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 311 (1994) (citing Japan Line, 441 U.S. at 449).
205. The Court has been clearest about the steps of this inquiry in the tax context. According to Justice Brennan's opinion in Wardair Canada, Inc. v. Florida Department of Revenue, 477 US. 1 (1986): When a state tax is challenged as violative of the dormant Interstate Commerce Clause, we have asked four questions: is the tax applied to an activity with a substantial nexus with the taxing State; is the tax fairly apportioned; does the tax discriminate against interstate commerce; and is the tax fairly related to the services provided by the State....In Japan Line ... we noted that when the state tax allegedly interferes with the Federal Government's authority to regulate foreign commerce, two additional questions must be asked; "first, whether the tax, notwithstanding apportionment, creates a substantial risk of international multiple taxation, and, second, whether the tax prevents the Federal Government from speaking with one voice when regulating commercial relations with foreign governments."
206. 2 equivalent emissions.
207. See Barclays Bank, 512 U.S. at 311 ("In 'the unique context of foreign commerce,' a State's power is further constrained because of 'the special need for federal uniformity.'")
208. (quoting Wardair Can., 477 U.S. at 8);
209. Japan Line, 441 U.S. at 448;
210. see also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-21 (2d ed. 1988) ("If state action touching foreign commerce is to be allowed, it must be shown not to affect national concerns to any significant degree, a far more difficult task than in the case of interstate commerce."). Several courts of appeal have likewise insisted on the greater rigor of the dormant foreign commerce analysis than the usual dormant commerce inquiry.
211. See, e.g., Piazza's Seafood World v. Odom, 448 F.3d 744, 749 (5th Cir. 2006) ("[T]he scope of Congress's power to regulate foreign commerce, and accordingly the limit on the power of the states in that area, is greater.");
212. Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 66 (1st Cir. 1999) ("The Supreme Court has repeatedly suggested that state regulations that touch on foreign commerce receive a greater degree of scrutiny than do regulations that affect only domestic commerce.").
213. It came closest to doing so when it invalidated an Iowa tax as facially discriminatory against foreign commerce in Kraft General Foods, Inc. v. Iowa Department of Revenue and Finance, 505 U.S. 71 (1992).
214. In that case, Justice Souter, writing for the Court, cited domestic dormant commerce precedents to support his assertion that, "[a]bsent a compelling justification,... a State may not advance its legitimate goals by means that facially discriminate against foreign commerce." Id. at 81.
215. At least one commentator has argued that the dormant Foreign Commerce Clause does not serve the same interests as the domestic dormant Commerce Clause and that it should be superseded by a preemption analysis. See generally Wilson, supra note 128.
216. Container Corp. of Am. v. Franchise Tax Bd., 463 U.S. 159, 194 (1983).
217. Accordingly, state protectionism is not necessarily the touchstone of the analysis as it is with the domestic dormant Commerce Clause: "[A] State's preference for domestic commerce over foreign commerce is inconsistent with the Commerce Clause even if the State's own economy is not a direct beneficiary of the discrimination." Kraft, 505 U.S. at 79.
218. 512 U.S. 298 (1994).
219. Id. at 323
220. (quoting Japan Line, 441 U.S. at 448).
221. See id. at 324-26.
222. See Hannah Chang, Foreign Affairs Federalism: The Legality of California's Link With the European Union Emissions Trading Scheme, 37 ENVTL L REP. 10771, 10782 (2007) ("California's legislation neither restricts, sanctions, criticizes, nor taxes a foreign country or its nationals or instrumentalities.");
223. Note, Foreign Affairs Preemption, supra note 11, at 1898 ("[W]ithout a controlling federal law or a clear conflict with executive foreign policy of the kind found in Garamendi, and in the absence of any direct interaction with foreign governments, foreign nationals, or their business partners, courts should presume that state GHG regulations are not a 'matter of foreign policy.'").
224. See supra text accompanying notes 37-40.
225. MARKET ADVISORY COMM., supra note 38, at 15-17 (observing lessons learned from prior successful and unsuccessful cap-and-trade schemes).
226. ROYAL SOC'Y, SUSTAINABLE BIOFUELS: PROSPECTS AND CHALLENGES (2008), available at http://royalsociety.org/displaypagedoc.asp?id=28914.
227. Joseph Fargione et al., Land Clearing and the Biofuel Carbon Debt, 319 SCIENCE 1235, 1236-37 (2008).
228. Cf. J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27 ECOLOGY L.Q. 263 (2000).
229. See generally Beth Ahlering & Simon Deakin, Labor Regulation, Corporate Governance, and Legal Origin: A Case of Institutional Cbmplementority?, 41 L & SOC'Y REV. 865 (2007).
230. Chemerinsky et al., supra note 11, at 10664.
231. Zschernig v. Miller, 389 U.S. 429,434,435 (1968).
232. See, e.g., Robert J. Delahunty, Federalism Beyond the Water's Edge: State Procurement Sanctions and Foreign Affairs, 37 STAN. J. INT'L L. 1 (2001 ) (referring to Zschemig as "a weak, poorly reasoned, and aberrational precedent").
233. 539 U.S. 396 (2003);
234. see supra text accompanying note 129.
235. See Kraft General Foods, Inc. v. Iowa Dep't of Revenue & Fin., 505 U.S. 71, 81 (1992) ("Absent a compelling justification... a state may not advance its legitimate goals by means that facially discriminate against foreign commerce.");
236. City of Phila. v. New Jersey, 437 U.S. 617, 626-28 (1998).
237. But cf. Maine v. Taylor, 477 U.S. 131 (1986) (upholding a Maine ban on the importation of baitfish as the only available means to protect indigenous species from the threat of disease).
238. See generally Martin L Weitzman, Prices vs. Quantities, 41 REV. ECON. STUD. 477 (1974) (demonstrating that, as an initial matter, tradable permits sold at auction have the same effect as a tax under conditions of perfect information).
239. See, e.g., Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 952 (1982) (concluding that groundwater is an article of commerce, despite the fact that "water, unlike other natural resources, is essential for human survival");
240. C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390-91 (1994) ("[W]hat makes garbage a profitable business is not its own worth but the fact that its possessor must pay to get rid of it. In other words, the article of commerce is not so much the solid waste itself, but rather the service of processing and disposing of it.");
241. New England Power Co. v. New Hampshire, 455 U.S. 331, 338 (1982) ("Our cases consistently have held that the Commerce Clause... precludes a state from mandating that its residents be given a preferred right of access, over out-of-state consumers, to natural resources located within its borders or to the products derived therefrom.").
242. City of Phila. v. New Jersey, 437 U.S. 617 (1978).
243. Id. at 628.
244. Healy v. Beer Inst., 491 U.S. 324, 336 (1989)
245. (quoting Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 528 (1935)).
246. See, e.g., New Energy Co. of Ind. v. Limbach, 486 U.S. 269 (1988);
247. Sporhase, 458 U.S. 941.
248. New Energy Co., 486 U.S. at 274 (rejecting Ohio's contention that beneficial tax treatment for Ohio-produced ethanol was not facially discriminatory since the statute also granted favorable treatment to out-of-state producers from states that granted reciprocal advantages, despite Ohio's argument that "the Ohio provision, far from discriminating against interstate commerce, is likely to promote it, by encouraging other States to enact similar tax advantages that will spur the interstate sale of ethanol").
249. See supra text accompanying notes 1, 55, 62.
250. See generally Potts, supra note 11 (arguing that California might successfully avoid Commerce Clause difficulties in GHG regulation due to the market participant exception).
251. Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976).
252. 128 S. Ct. 1801 (2008).
253. Hughes, 426 U.S. at 815 (Stevens, J., concurring);
254. see also id. (emphasizing that "[i]t is important to differentiate between commerce which flourishes in a free market and commerce which owes its existence to a state subsidy program").
255. Id.
256. See Reeves, Inc. v. Stake, 447 U.S. 429 (1980);
257. Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 66 (1st Cir. 1999) ("[W]e believe that the risks inherent in state regulation of foreign commerce-including the risk of retaliation against the nation as a whole and the weakening of the federal government's ability to speak with one voice in foreign affairs... weigh against extending the market participation exception to the Foreign Commerce Clause.");
258. J.T. Hutchens, The Market-Participant Exception and the Dormant Foreign Commerce Clause, 5 CARDOZO PUB. L POL'Y & ETHICS J. 445 (2007);
259. Michael A. Zuckerman, Note, The Offshoring of American Government, 94 CORNELL L REV. (forthcoming 2008) (arguing that the market participant exception should not be extended to the dormant Foreign Commerce Clause).
260. But see K.S.B. Technical Sales Corp. v. N.J. Dist. Water Supply Comm'n, 381 A.2d 774, 784-87 (N.J. 1977) (upholding a state "Buy American Act" on market participant grounds, contending that "the cases scrutinizing state regulations affecting commerce, in the absence of interference with the foreign affairs power, seem to have made no distinction between interstate and foreign commerce").
261. 447 U.S. 429 (1980).
262. Id. at 437 n.9;
263. see also Antilles Cement Corp. v. Acevedo Villa, 408 F3d 41, 47 (1st Cir. 2005) (elaborating on the different conclusions lower courts have reached on the issue of whether the market participant exception applies in dormant Foreign Commerce Clause cases).
264. South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 97 (1984).
265. 467 U.S. 82.
266. Id. at 99.
267. Id. at 100.
268. In Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564 (1997), for instance, the Court rejected out of hand a claim by the State of Maine to fall within the market participant exception when it chose to discriminate between providers of charitable services to in-state and out-of-state beneficiaries for tax exemption purposes: "Maine's tax exemption - which sweeps to cover broad swathes of the nonprofit sector - must be viewed as action taken in the State's sovereign capacity rather than a proprietary decision to make an entry into all of the markets in which the exempted charities function."
269. Id. at 594;
270. see also New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 277 (1988) ("The market-participant doctrine has no application here. The Ohio action ultimately at issue is neither its purchase nor its sale of ethanol, but its assessment and computation of taxes - a primeval governmental activity.").
271. CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69 (1987).
272. Id.
273. Id. at 88-89.
274. Id. at 89.
275. Id. at 91.
276. Id. at 94.
277. Id. at 1809-10
278. (quoting United Haulers Assn., Inc. v. Oneida-Harkimer Solid Waste Mgmt. Auth., 127 S. Ct. 1786, 1795 (2007)).
279. 127 S. Ct. 1786.
280. 128 S. Ct. at 1810
281. (quoting United Haulers, 127 S. Ct. at 1795).
282. Id. at 1811 ("There is no forbidden discrimination because Kentucky, as a public entity, does not have to treat itself as being 'substantially similar' to the other bond issuers in the market.").
283. Id. at 1810.
284. For a more thorough discussion, see Chemerinsky et al., supra note 11, at 10654-59.
285. See CPUC Proceeding, supra 100, at *95-96.
286. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981).
287. Id. at 472.
288. 397 US. 137 (1970).
289. Id. at 142.
290. 458 US. 941 (1982).
291. Id. at 956;
292. see also City of Phila. v. New Jersey, 437 U.S. 617, 623-24 (1978) ("The opinions of the Court through the years have reflected an alertness to the evils of 'economic isolation' and protectionism, while at the same time recognizing that incidental burdens on interstate commerce may be unavoidable when a State legislates to safeguard the health and safety of its people.").
293. Sporhase, 458 U.S. at 956.
294. Hughes v. Alexandria Scrap Corp., 426 US. 794, 809 (1976).
295. But cf. Reeves, Inc. v. Stake, 447 U.S. 429, 442 n.16 (claiming that the invocation of an environmental purpose was, in this case, disingenuous).
296. Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 353 (1977).
297. H.R. COMM. ON ENERGY AND COMMERCE & SUBCOMM. ON ENERGY AND AIR QUALITY, supra note 45, at 12 ("[L]ocal greenhouse gas emissions do not cause local environmental or health problems, except to the extent that the emissions conttibute to global atmospheric concentrations.").
298. 127 S. Ct. 1438 (2007).
299. Id. at 1456.
300. See id. at 1457 (rejecting the EPA's argument that standing cannot be met because the EPA could not by itself, or solely through motor vehicle GHG emissions regulation, arrest global climate change, since "[a]gencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop").
301. Id. at 1454 ("When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.").
302. 491 U.S. 324 (1989).
303. Id. at 336.
304. Compare Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 580 (1986) (holding that New York could not require that liquor producers sell within the state at the lowest price they charge elsewhere in the United States; the state statute impermissibly sought to "regulate[ ] commerce in other states")
305. and Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 528 (1935) (striking down New York's Milk Control Act because a state may not "establish a wage scale or a scale of prices for use in other states, and... bar the sale of the products... unless the scale has been observed")
306. with Nat'l Solid Wastes Mgmt. Ass'n v. Meyer, 63 F.3d 652, 659 (7th Cir. 1995) (finding unconstitutional Wisconsin's ban on out-of-state solid waste disposal at in-state landfills unless this solid waste originated from a community with a recycling program comparable to Wisconsin's because of the statute's "extraterritorial scope and... adverse impact on commerce occurring wholly outside the enacting state")
307. and Hardage v. Atkins, 619 F.2d 871, 873 (10th Cir. 1980) (finding unconstitutional an Oklahoma statute that prohibited out-of-state hazardous waste generators from shipping waste into Oklahoma unless their home state had adopted "substantially similar standards for controlled waste disposal as those which Oklahoma has enacted").
308. National Solid Wastes Management is discussed in detail, infra text accompanying notes 209-214.
309. But cf. Corto Waxo Co. v. Williams, 46 F.3d 790 (8th Cir. 1995) (holding that a Minnesota statute prohibiting sale of petroleum-based sweeping compounds within the state did not exert impermissible extraterritorial reach because it left actors free to sell such compounds in other states).
310. CPUC Proceeding, supra 100, at *98.
311. Cf. Douglas A. Kysar, Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, 118 HARV. L. REV. 525 (2004) (addressing an analogous argument in the international trade context).
312. Nat'l Solid Wastes Mgmt., 63 F.3d 652.
313. Id. at 654.
314. Id. at 658.
315. Id. Echoing concerns raised by Zschernig in the international context, the court also seemed ttoubled by the fact that the statute directed the Wisconsin Department of Natural Resources to engage in an inquiry regarding whether community recycling programs of other jurisdictions were "[a]dequate[ly] enforce[d]."
316. Id. at 655.
317. Specifically, the statute directed the Department to "promulgate rules for comparing the programs of non-Wisconsin municipalities to Wisconsin municipalities or counties," including such factors as "the level of financing, enforcement mechanisms and effort, and the number of materials being separated and recycled." Id.
318. Although the Seventh Circuit did not specifically rely on these features of the Wisconsin statute in striking it down, the court did seem troubled by the possibility that out-of-state waste might be banned "not because it is more noxious than waste produced the Wisconsin way, but simply because it comes from a community whose ways are not Wisconsin's ways." Id. at 662.
319. The Seventh Circuit indicated that Wisconsin could have achieved its waste management goals simply by requiring all out-of-state solid waste to undergo sorting at a materials recovery facility. See id. at 662. Even though this approach would have treated waste generated out-of-state differently from in-state waste (which would still benefit from an exemption from sorting due to the Wisconsin community recycling program), the court suggested that it would pass constitutional muster.
320. Such an approach would be conceptually similar to a compensatory tax, which the Court has on occasion upheld as an acceptable exercise of state authority to level the playing field between intra- and interstate commerce. See Or. Waste Sys., Inc. v. Dep't of Envtl. Quality, 511 U.S. 93, 102-03 (1994) ("[I]nterstate commerce may be made to 'pay its way'.... [A] facially discriminatory tax that imposes on interstate commerce the rough equivalent of an identifiable and 'substantially similar' tax on intrastate commerce does not offend the negative Commerce Clause.");
321. Henneford v. Silas Mason Co., 300 U.S. 577, 585 (1937) (accepting the constitutionality of a compensating use tax whereby Washington sought to make up for lost sales tax revenue from in-state use of products purchased out of state, and distinguishing Seelig by stating, in that case, "New York was attempting to project its legislation within the bordets of another state by regulating the price to be paid in that state for milk acquired there");
322. see also Heddy Bolster, Note, The Commerce Clause Meets Environmental Protection: The Compensatory Tax Doctrine as a Defense of Potential Regional Carbon Dioxide Regulation, 47 B.C. L. REV. 737 (2006).
323. See MARKET ADVISORY COMM., supra note 38, at 44.
324. See id. ("[S]ome observers are concerned that contract shuffling could dramatically undermine a California cap-and-trade program: they note that there is sufficient generation capacity within the eleven states in the western power interconnect to entirely comply with expected emission reductions in California without any real change in generation.").
325. Chemerinsky et al., supra note 11, at 10658.
326. See Kysar, supra note 208.
327. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523 (1935).
328. CARL COHEN, CIVIL DISOTELMENCE: CONSCIENCE, TACTICS, AND THE LAW 39-40 (1971).