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Constitutional implications of regional C[O.sub.2] cap-and-trade programs: the northeast regional greenhouse gas initiative as a case in point.
I. INTRODUCTION II. THE RGGI III. PREEMPTION IV. COMPACT CLAUSE V. THE DORMANT COMMERCE CLAUSE A. Offsets B. Leakage VI. CONCLUSION I. INTRODUCTION
For eight years the Bush administration avoided addressing global warming, first denying its existence, then denying its anthropogenic contributions, and finally denying the government's legal ability to combat it. There is a new administration, however, and Presidential candidate Obama campaigned in favor of a national cap-and-trade program. Nevertheless, there are many matters of critical importance on the U.S. Congress' plate, and as of this writing Senate Majority Leader, Harry Reid, was hoping to take up climate change legislation by the end of the summer of 2009. The chances of passage even then are not clear. Economic woes and Republican opposition could still do it in. This political reality suggests that existing and proposed regional cap-and-trade programs may have continuing importance. Consequently, the constitutional implications of these programs are worthy of consideration. The Regional Greenhouse Gas Initiative (RGGI) is already in effect in ten northeastern and mid-Atlantic states, (1) while the Western Climate Initiative and Mid-western Regional GHG Reduction Accord are still far from operational. This Article considers three possible constitutional issues with regard to a regional cap-and-trade program, focusing on the RGGI: preemption, the Compact Clause, and the Dormant Commerce Clause. II. THE RGGI The RGGI is a cooperative undertaking of ten states (2) that began in 2005 with a Memorandum of Understanding. (3) In 2006 the RGGI developed a Model Rule. (4) Each state undertook to cap overall C[O.sub.2] emissions from electrical generating plants in the state in accordance with the RGGI Model Rule. (5) In essence, beginning in 2009 and lasting until 2014, the cap is set at the estimated amount of emissions in 2008. Thereafter, the cap is decreased by 2.5 percent each year until 2018, for a total decrease in emissions of 10 percent from the 2008 baseline. Each fossil-fuel-fired ...See the full content of this document
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