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11/04/2017

David Sloss: California's Climate Diplomacy and Dormant Preemption
Michael Ramsey

David L. Sloss (Santa Clara University - School of Law) has posted California's Climate Diplomacy and Dormant Preemption (Washburn Law Journal, forthcoming) on SSRN.  Here is the abstract:

After President Trump announced that the United States would withdraw from the Paris climate agreement, Governor Brown issued a joint statement with his counterparts from New York and Washington, announcing that the three governors “are teaming up to fight climate change in response to President Trump’s” withdrawal decision. A few days later, Governor Brown met in Beijing with China’s President Xi Jinping. The Chinese President reportedly “welcomed California’s efforts to work with the Chinese government to help combat global warming.” According to the California government web site, the state is party to a total of 54 “international agreements” on climate change, including agreements with both national and sub-national governments.

Governor Brown’s international diplomacy raises two distinct constitutional concerns. First, the Compact Clause provides: “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact . . . with a foreign Power.” California’s cap-and-trade agreement with the Government of Québec (the “Linking Agreement”) is vulnerable to a constitutional challenge in this respect. Second, the Foreign Commerce Clause grants Congress power “to regulate Commerce with foreign Nations.” The Supreme Court has held that state laws may violate the Dormant Foreign Commerce Clause if they “prevent this Nation from ‘speaking with one voice’ in regulating foreign commerce.” The Linking Agreement may also run afoul of the Dormant Foreign Commerce Clause. Although the matter is not free from doubt, I conclude that the Linking Agreement does not violate the Dormant Foreign Commerce Clause. However, the Agreement may be unconstitutional under the Compact Clause, absent congressional consent. The Conclusion considers options available to Governor Brown to mitigate potential constitutional difficulties.

The compact clause is surprisingly understudied from an originalist perspective, and it seems likely that quite a few activities we take for granted are problematic under its original meaning.