Executive Constraint, Judicial Uncertainty, and Legislative Complacency: Washington Responds With a Progressive Approach to Climate Change

• Publication year: 2008

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 31, No. 3SPRING 2008

Executive Constraint, Judicial Uncertainty, and Legislative Complacency: Washington Responds with a Progressive Approach to Climate Change

Daniel A. Brown(fn*)

I. Introduction

Washington, the Evergreen State, is known for its beautiful mountains, trout-laden lakes, clear rivers, bountiful forests, and diverse wildlife. In Washington, you are likely to see a bald eagle soaring over the water in search of salmon, or perhaps a brown bear or a herd of deer walking through the forest. Unfortunately, Washington's precious natural resources and ecosystem are in deep trouble.(fn1)

Each year, concern grows regarding the serious environmental, economic, and health effects of America's energy policies.(fn2) Due to our insatiable demand for oil and our overdependence on nonrenewable fossil fuels to generate energy,(fn3) we are experiencing not only increasing gas prices, but also detrimental health effects caused by the emission of greenhouse gases(fn4)-"gaseous constituents of the atmosphere, both natural and anthropogenic, that absorb and re-emit infrared radiation."(fn5) The contribution of greenhouse gases to global warming presents an even greater danger.(fn6)

Worldwide energy production relies overwhelmingly on the consumption of fossil fuels.(fn7) As a result, grave environmental concerns surround the production of electric energy, which releases an extraordinary amount of greenhouse gases.(fn8) A recent report indicated that "without rapid and substantial spending to reduce greenhouse gases, climate change will devastate food sources, cause widespread deaths, and turn hundreds of millions of people into refugees."(fn9) These greenhouse gases do not affect only the countries that release them; their impact is transnational.(fn10) Illustratively, recent studies indicate that fossil fuel-based power plants have caused pollutants from Asia to reach the West Coast and U.S. pollutants to drift to Europe.(fn11)

It should come as no surprise, then, that the impact of global warming is felt at the state level as well. In Washington, for example, the Department of Ecology predicts that climate change caused by global warming could potentially mean warmer temperatures, wetter winters (resulting in increased flooding), and recurring drought seasons.(fn12) Climate change is expected to cause a rise in sea level, coastal erosion and landslides, the loss of wetlands and estuaries, and seawater intrusion into wells.(fn13) Moreover, we will see less snow in the mountains(fn14) and an increase in human diseases.(fn15) Washingtonians can also expect a loss of forestlands, caused by increased forest fires and insect infestations, as well as an increased risk of extinction for salmon, caused by an increase in ocean temperature and a decrease in nutrient levels.(fn16) In addition to the degradation of Washington's ecosystem, harmful economic consequences will likely occur.(fn17) Regrettably, the federal government has done little to deter such looming dangers.

The amount of federal support for energy efficiency has vacillated over the years. Although efforts to promote energy conservation at the federal level were spearheaded by President Carter,(fn18) culminating in the passage of the National Energy Act of 1978,(fn19) federal support for energy efficiency diminished in the 1980s.(fn20) In the early 1990s, however, the federal government briefly demonstrated a renewed interest in energy efficiency by enacting the Energy Policy Act of 1992. Since then, federal support in this area has become grossly inadequate.(fn21) Indeed, critics characterize the Bush Administration's Energy Policy Act of 2005(fn22) as nothing more than a "smorgasbord" of subsidies for U.S. energy companies.(fn23) Despite this criticism, as well as pressure from international and state governments to take global warming seriously,(fn24) the federal government continues to turn a blind eye to the problem of climate change.(fn25)

Confronted with federal complacency, many states have courageously taken the initiative to combat global warming(fn26) by enacting local legislation to curb carbon emissions.(fn27) Some states have embraced renewable energy as a viable solution and are using tax incentives to promote it. For example, Washington implemented unique tax incentives in 2005 when it amended section 82.04.440(fn28) and enacted section 82.16.120(fn29) of the Revised Code of Washington (RCW). While the use of state tax incentives to promote local economic growth is nothing new,(fn30) these statutes go further: they also promote renewable energy by providing tax incentives for its in-state use and production.(fn31)

The Supreme Court's Commerce Clause jurisprudence, however, renders these laws constitutionally suspect, because it bars tax incentives that discriminate against interstate commerce.(fn32) Although the case law in this area is befuddled,(fn33) a general rule has emerged: "A tax which by its terms or operation imposes greater burdens on out-of-state goods, activities, or enterprises than on competing in-state goods, activities, or enterprises will be struck down as discriminatory."(fn34)

This Comment argues that Washington's renewable energy tax incentives likely discriminate against interstate commerce. More importantly, however, it contends that although these types of tax incentives violate the Commerce Clause, Congress can and should pass legislation authorizing their use under the state police power.

Part II of this Comment discusses the evolution of cooperative federalism in the environmental policy arena, as well as how many states have responded to federal constraints on environmental protection. Part III explores Washington's efforts to combat global warming and boost its economy by using the renewable energy tax incentives, RCW sections 82.04.440 and 82.16.120. Part IV analyzes the Commerce Clause and the Court's jurisprudence interpreting it. In particular, Part IV focuses on the controversial DaimlerChrysler Corp. v. Cuno case(fn35) and the congressional response it engendered. Part V goes on to explore whether Washington's tax incentives, and other similar state tax incentives, qualify as discriminatory under the Commerce Clause. Part VI argues that although the Court would likely hold that these types of state tax incentives violate the Constitution, Congress can, and should, override such a decision through legislation, thereby allowing the states to protect human health and the environment under their inherent police power. Finally, Part VII summarizes the states' synthesis of tax and environmental policy to combat global warming, with a particular focus on Washington's new statutes.

II. Cooperative Federalism and Environmental Regulation-Are the Feds Cooperating?

Cooperative federalism requires "that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation."(fn36) In other words, although the federal government is charged with promoting and protecting federal interests, it should always do so in a way that does not unduly interfere with legitimate state activities.(fn37) In the environmental protection context, the U.S. Supreme Court describes a cooperative federalism program as one "that allows the States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs."(fn38)

Notwithstanding the Court's understanding of this principle, the federal government has not consistently adhered to the notion of dual sovereignty, especially with regard to environmental regulation. The following Sections describe the history and demise of federal environmental protection, as well as the subsequent reemergence of the states as environmental regulators.

A. The History and Demise of Federal Environmental Regulation

The federal government derives its authority to protect human health and the environment from its power to regulate interstate and foreign commerce,(fn39) as well as from the Necessary and Proper Clause, which allows the government to effectuate any federal policy within its enumerated powers.(fn40) Unlike the federal government, the states derive their authority to protect human health and the environment from their inherent police power.(fn41) Although the federal and state governments each have ample authority to enact environmental protection legislation, the states were the first to regulate polluting activities.(fn42) Prior to the 1970s, state courts provided a forum for persons injured from pollution to bring claims such as nuisance, trespass, and negligence in order to receive damages and injunctive relief.(fn43) Additionally, local governments implemented zoning regulations to separate incompatible land uses and rudimentary pollution control regulations, such as smoke control ordinances.(fn44)

In 1970, however, the federal government emerged as the chief regulator of pollution, primarily for three reasons.(fn45) First, Congress believed that a lack of federal regulation had resulted in a wide array of incompatible and onerous state and local measures.(fn46) Second, it felt that interstate pollution could be dealt with more effectively by the federal government.(fn47) Finally, Congress believed that its...