Academic journal article Harvard Law Review

The Compact Clause and the Regional Greenhouse Gas Initiative

Academic journal article Harvard Law Review

The Compact Clause and the Regional Greenhouse Gas Initiative

Article excerpt

The twentieth century witnessed an unprecedented amount of cooperation between states, much of it taking creative new forms. (1) Given that the language of the Constitution's Compact Clause prohibits any interstate "agreement or compact" without congressional consent, (2) these modern arrangements might have been expected to raise issues under that clause. The Supreme Court, however, has long been reluctant to give the Compact Clause a "literal" reading for fear of posing unnecessary, and perhaps insurmountable, barriers to beneficial state cooperation. Instead, the Court has used a functional test that permits interstate agreements without congressional consent so long as the agreements do not undermine the supremacy of the federal government. This functional test, however, has become untethered from the text of the Compact Clause itself, in the process stripping the clause of independent force.

An occasion may soon arise to reexamine the doctrine. The Regional Greenhouse Gas Initiative (RGGI), an effort by ten northeastern states to reduce carbon dioxide emissions from power plants in the region, is an interstate agreement that some have suggested may violate the Compact Clause. (3) The RGGI states have neither requested congressional consent nor announced an intent to do so. If they were to request consent, it is difficult to predict whether Congress would grant it. The new Democratic Congress has shown interest in climate change regulation, (4) but the politics of climate change at the national level could impede consent even in a sympathetic Congress.

This Note suggests that buried in the Court's Compact Clause cases are hints of an alternative to the problematic functional test. This alternative, a categorical test, would ask whether an interstate arrangement possesses the necessary characteristics of a "compact or agreement" under the Compact Clause. This test is more closely based on the text of the Compact Clause and squares better with what little is known of the Framers' purpose behind the clause than the functional test. Using RGGI as an example, this Note argues that the categorical test fulfills much of the purpose of the Court's functional test by allowing many interstate arrangements to avoid a consent requirement. Although the result for RGGI would be the same under either test, an analysis of RGGI illustrates additional advantages of the alternative approach.

Part I explains the key features of RGGI. Part II sketches the development of the functional test and then applies that test to RGGI, concluding that the initiative does not present a Compact Clause problem under the functional test. Part III reviews some weaknesses of the functional test and suggests that a categorical test, which has been lurking in Supreme Court cases, is a better method for analyzing RGGI and other interstate arrangements. Part III then outlines the doctrinal underpinnings of the categorical test and applies it to RGGI, concluding that RGGI should not be considered a compact or agreement under the Compact Clause. Part IV considers the additional advantages of the categorical test. Part V concludes that the Court should substitute the categorical test for its functional test if a challenge to RGGI presents the opportunity.

I. THE REGIONAL GREENHOUSE GAS INITIATIVE

RGGI began in April 2003, when New York's Governor George Pataki invited ten other northeast states to develop a regional cap-and-trade program for carbon dioxide emissions from power plants. (5) Delaware, New Jersey, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, and Maine accepted Governor Pataki's invitation and joined RGGI discussions as active participants; Maryland and Pennsylvania observed. (6) Based on discussions between the states and negotiations with stakeholders, the governors of seven of the states signed a Memorandum of Understanding (MOU) in December 2005, (7) with Massachusetts and Rhode Island joining in 2007. …

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