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Can California Make Laws For the Rest of the Nation?
That’s the question I examine in the newest installment of my column for Hoover’s Defining Ideas. California has recently enacted a series of carbon regulations so sweeping that they have the practical effect of regulating behavior throughout the nation. As I note in the column, it is, in my judgment, time for this issue to be heard by the Supreme Court.
The reason this case is so important is that California’s regulations essentially usurp the powers of the federal legislative branch. As I argue:
California does not have a monopoly on the complex schemes for well-to-wheel system of taxation. Nor is it clear that it has chosen the best regime for this purpose. The California tax could distort market behavior out of state, while inviting great confusion and uncertainty under some “internal consistency” test if other states choose different but permissible variations on the same theme. Their cumulative weight could paralyze the entire system of interstate transportation. The point is especially salient here because any dangers from carbon dioxide emissions are not confined to this or that state, but are always national, indeed global, in their consequences. That simple fact makes even national regulation difficult, and it renders local state-by-state regulation that much more mischievous.
Situations like this call for some uniform national rule that only Congress can provide. But Congressional decision could allow California … to bind the world. After all, only Congress can stop the proliferation of otherwise inconsistent state schemes to control carbon emissions.
Read the argument in full and let me know what you think.
Published in General
I agree. California can make laws for the rest of the country only if Congress allows California and all states that power by making the federal standard a floor and not a ceiling. Without Congressional approval, state attempts to reach out-of-state activities that produce greenhouse gasses encroach on Congress’s power “to regulate commerce . . . among the several states.”
Practically, I think national businesses would breathe a sigh of relief if Congress set a national standard with new legislation rather than through new regulation. In the meantime, many national business welcome EPA’s emissions regulations under the Clean Air Act because of their fear of California and need for uniformity.
On the Dormant Commerce Clause issue, after a cursory reading of the denial, I think the key for Rocky Mountain’s challenge is the continuing validity of this Dormant Commerce Clause principle noted in J. Smith’s dissent: “a state law that has the `practical effect’ of regulating commerce occurring wholly outside that State’s borders is invalid. . . .” quoting Healy v. Beer Inst., 491 U.S. 324, 332 (1989). As far as the out-of-state ethanol producers go, the DCC argument here seems pretty persuasive.
This is exactly the sort of issue the commerce clause was meant to address in the first place. If it has any meaning at all, it’s that intranational protectionism cannot be tolerated.
Heck, even Canadian governments have had a tendency to cite California regulations when passing new environmental laws.
Usually Liberal governments, of course …
Don’t forget the egg lawsuits…
http://stlouis.cbslocal.com/2014/03/06/others-join-mo-challenge-of-california-egg-law/
(Of course, maybe I first heard about that listening to your podcast.)
As a resident of Iowa, I’m particularly interested in the egg case. But the federalist in me says that a state should be allowed to make any laws it likes. I’d really like to see a good discussion on this topic.
We talked about the egg case on the most recent episode of Law Talk.
<grumble, mutter> Must have missed that one. Downloading now…
And when will be the next episode of Law Talk? The wait is killing me.
Richard was traveling this week (indeed, the new “Libertarian” podcast was recorded in advance — something we often do with an evergreen topic when one of us is out of pocket) and Yeti and I have had our hands full with 2.0 stuff.
Hopefully we’ll get the band back together next week. We’ve only been doing about one a month recently and we need to get back to a rate about double that.