Volume 72, Issue 4, 1313-1346
As climate change regulation from the federal level becomes increasingly unlikely, states and local governments emerge as the last stand against climate change in the United States. This tension ushers in questions of separation of powers and federalism, with which the courts have wrestled since the country’s founding. The doctrine of preemption is one of the federal government’s strongest tools to limit states’ authority to regulate climate change. Preemption challenges have been increasing lately and have largely succeeded under judicial deference to the executive branch. However, recent changes to the Supreme Court signal that the Court may be less willing to grant to the executive branch the same deference that it once gave. There may now be more of an opportunity for legislators to enact regulation at the state and local level.
If preemption is out of the question, there are other constitutional considerations that state and local lawmakers should keep in mind, most notably the dormant Commerce Clause. States such as California and Oregon, in their regulation of carbon emissions from automobiles, have already faced these challenges. But if preemption claims become less successful, dormant Commerce Clause challenges will likely increase. Recent Ninth Circuit decisions shed light on what state legislatures should consider when enacting similar environmentally protective statutes. Specifically, the principles of extraterritoriality and virtual representation guide how a state should frame its regulatory program.