Pike Balancing: Vulnerabilities of State Greenhouse Gas Regulations and Possible Solutions

• Date: 01 October 2014

44 ELR 10874 ENVIRONMENTAL LAW REPORTER 10-2014

A R T I C L E S

Pike Balancing:

Vulnerabilities

of State

Greenhouse Gas

Regulations and

Possible Solutions

by Paul T. Stewart

Paul Stewart is a third-year J.D. student at Wayne State

University Law School and is editor-in-chief of the Wayne Law

Review. is Article won the 2013-2014 Beveridge & Diamond

Constitutional Environmental Law Writing Competition.

Summary

e dormant Commerce Clause prohibits state-level

regulations that improperly discriminate against out-

of-state-interests or unduly burden interstate com-

merce. As such, this doctrine may present a barrier

to state-level greenhouse gas regulations that aect

out-of-state energy and other greenhouse gas sources.

But there are ways around this doctrine for states that

are careful in how they construct their programs.

By arguing that a state-level GHG regulation could

impact a much larger portion of global GHG emis-

sions than merely its own state’s contribution, and

by arguing in the alternative that the dormant Com-

merce Clause analysis should not even be applied to

a state-level GHG regulation in the rst place, states

can maximize the chances of their nondiscrimina-

tory GHG regulations surviving dormant Commerce

Clause challenges.

I. Introduction

In recent years, numerous states have ta ken ac tions to

reduce em issions of greenhou se gases (GHGs) associated

with climate cha nge, and some have passed GHG regu-

lations.1 Any state-level regulation that burdens inter-

state commerc e is susceptible to chal lenges under the

dormant Commerce Claus e doctrine , which genera lly

prohibits state-level regulation s t hat either: (1)i mprop-

erly discriminate aga inst out-of-state-interests in favor

of in-state interest s; or (2)burden interstate commerce

to an extent not justied by the in-state benets sought

by the regu lation (as determine d throug h so-c alled

Pike bala ncing).2 Considering whether the burden on

interstate commerce by a state -level GHG regulation is

justied by the in-state benets sought by t he regula-

tion involves unsett led questions about the capa bility of

any particular state to alter global GHG emi ssion lev-

els enough to experience notice able local benets in the

form of re duced c limate change impac ts.3

e case law considering the in-state benets associated

with state-level regulations under dormant Commerce

Clause cha llenges is in the nascent stages, although both

courts and commentators have suggested that the 2007

U.S. Supreme Court case of Massachusetts v. EPA4 supports

the notion that a state c an show concrete in-state benets

associated with its state-level GHG regulation despite the

challenges of showing that a state could alter global GHG

emission levels in any meaningful way.5

is Article argues that Massachusetts denitively does

not support a state’s showing of concrete in-state benets

associated with its state-level GHG regulation (Part III.B.).

e Article also asserts that there are challenges with a

state showing such in-state benets without the assistance

of Massachusetts (Part III.A.). But these challenges are not

necessarily insurmountable. e Article presents argu-

ments that can be utilized to help overcome the challenges

of the in-state benet issue without a ny departure from

Supreme Court precedent (Part III.C.).

Before addressing t he argu ments, however, the Article

rst provides background on the hi story of the dormant

Commerce Clause (Part II.A.), t he current state of the

law for Pike balanc ing (Par ts II.B. & II.C.), a recent case

1. See Center for Climate and Energy Solutions, State Legislation From Around

the Country, http://www.c2es.org/us-states-regions/key-legislation (last vis-

ited Jan. 12, 2013).

2.  Part II.A.

3.  Part II.F.

4. 549 U.S. 497, 37 ELR 20075 (2007).

5.  notes 103-04.

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       

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