Academic journal article Duke Environmental Law & Policy Forum

The Viability of Interstate Collaboration in the Absence of Federal Climate Change Legislation

Academic journal article Duke Environmental Law & Policy Forum

The Viability of Interstate Collaboration in the Absence of Federal Climate Change Legislation

Article excerpt


The United States Federal Government has declined to enact a nationwide regulatory scheme to abate greenhouse gas emissions" Congress has repeatedly failed to pass comprehensive legislation and the Environmental Protection Agency (EPA) has only recently--and reluctantly--begun to regulate greenhouse gas emissions. In the absence of the guidance that might otherwise be afforded by a centralized regulatory scheme, some states are now taking action to collaborate on abatement efforts through regionally defined interstate initiatives. While much scholarship analyzes these state-led initiatives with the expectation that federal legislation will soon exist, this analysis departs from that tradition. As it is increasingly unlikely that federal action will occur in the foreseeable future, it is now necessary to consider the long-term viability of these state-led initiatives in the absence of comprehensive federal legislation. This Note focuses upon two of the most pressing challenges which face the regional initiatives: first, the inherently limited breadth of their jurisdiction; second, the likelihood of survival in the face of potential constitutional challenges.

This paper proceeds in three parts. Part I will first set the stage for this analysis by showing that congressional legislation is not likely to occur in the near future. Second, Part I will briefly describe the regional initiatives as they stand today. The difficulties the regional initiatives face in the absence of federal action will be considered in Parts II and III. Part II explores the viability of the initiatives in light of their limited jurisdiction. Part III, under the assumption that Congress it not likely to pass comprehensive climate change legislation in the near future, considers the constitutional concerns that may threaten the regional initiatives.


The United States Congress came deceptively close to taking affirmative action to abate nationwide greenhouse gas emissions in 2009, but ultimately failed to pass the American Clean Energy and Security Act (ACES) into law. (1) Early signs were optimistic, however, as ACES did pass through the House of Representatives, but the bill fell flat when it failed to come to a vote in the Senate. Since the bill's failure, the political atmosphere surrounding federal climate change action has become increasingly toxic. Due to the lack of action at the federal level--and the improbability of such action occurring in the near future--some states are now coordinating their own interstate regulatory policies. The Regional Greenhouse Gas Initiative (RGGI), for example, is the most well-known and longest operating regional initiative; a similar initiative has been developed on the West Coast. Before delving into an analysis of the viability of such regional initiatives, it first is necessary to discuss the circumstances that catalyzed the creation of such interstate collaboration and the manner in which they function.

A. The Fruitless Search for a Solution

With so much empirical and academic support in favor of a federal cap-and-trade program, (2) it must have seemed hardly a surprise for those attuned to the political winds in Washington when ACES passed through the United States House of Representatives on June 26, 2009. However, the bill's passage was not assured: It passed by a margin of only seven votes, 219 to 212, with forty-three democrats voting against the bill. (3) Although numerous cap-and-trade bills were introduced prior to ACES, this vote marked the first time that either house of Congress passed a bill which comprehensively addressed many climate change inducing greenhouse gases. In addition to implementing a nationwide cap-and-trade system, ACES contained the sweeping provisions needed to make the U.S. internationally competitive by encouraging the development and use of renewable technologies while simultaneously decreasing domestic greenhouse gas emissions. …

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