44 ELR 10874 ENVIRONMENTAL LAW REPORTER 10-2014
A R T I C L E S
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.
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 aect
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
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 justied by the in-state benets 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
justied by the in-state benets 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 benets in the
form of re duced c limate change impac ts.3
e case law considering the in-state benets 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 benets
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 denitively does
not support a state’s showing of concrete in-state benets
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 benets 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 benet 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.
5. notes 103-04.
their outstanding teaching in the classroom.
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.