Goblets of Fire: Potential Constitutional Impediments to the Regulation of Global Warming

Abstract

Almost half the U.S. states have begun to regulate the emission of greenhouse gases and global warming, given that the federal government has not acted. However, these leading states are implementing carbon regulatory measures that, if challenged, may be found to violate the Supremacy Clause and/or Commerce Clause of the U.S. Constitution. If so, these state initiatives, as the lead edge of U.S. policy on global warming, will require time-consuming legal revisions that could affect fundamental allowance allocation in lieu of auction, use of government garnered revenues from state carbon restrictions, and the degree to which states can change wholesale generation prices using carbon regulations as a means to alter the power generation queue and profile. This issue is so important from both an environmental and energy perspective that it is imperative that care is used initially to sculpt a legally sustainable regulatory regime. This Article examines these constitutional issues, focusing on the legal initiatives regarding carbon of the leading ten East Coast states and the State of California.