Like a Nation State

53 Pages Posted: 25 May 2008 Last revised: 14 Dec 2008

See all articles by Douglas A. Kysar

Douglas A. Kysar

Yale University - Law School

Bernadette Meyler

Stanford Law School

Abstract

Using California's self-consciously internationalist approach to climate change regulation as a primary example, this Article examines constitutional limitations on state foreign affairs activities. In particular, by focusing on the prospect of California's establishment of a greenhouse gas (GHG) emissions trading system and its eventual linkage with comparable systems in Europe and elsewhere, this Article demonstrates that certain constitutional objections to extrajurisdictional linkage of state GHG emissions trading systems and the response that these objections necessitate may be more complicated than previously anticipated. First, successfully combatting the Bush Administration's potential claim that state-level climate change activities interfere with a federal executive position of withholding binding domestic GHG reductions in advance of a multilateral agreement including key developing nations, will require demonstrating that the executive branch is not acting with congressional support and has, furthermore, declared its position too informally to constitute an exercise of any of the president's independent constitutional powers. Second, state efforts to link GHG emissions trading systems with those of other nations may well take them into territory abutting that which is constitutionally impermissible under the foreign affairs and Foreign Commerce Clause doctrines. Finally, state efforts to integrate with other trading schemes or to otherwise protect the integrity of their own trading schemes must be carefully constructed lest they invite challenge as being discriminatory or overreaching, in light of more conventional dormant Commerce Clause constraints on state regulation.

Keywords: environment, greenhouse gas emissions, federalism, executive power, commerce clause, foreign affairs power

Suggested Citation

Kysar, Douglas A. and Meyler, Bernadette A., Like a Nation State. UCLA Law Review, Vol. 55, No. 6, 2008, Cornell Law School Research Paper No. 08-021, Available at SSRN: https://ssrn.com/abstract=1135827

Douglas A. Kysar

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Bernadette A. Meyler (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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