Foreign Affairs Preemption and State Regulation of Greenhouse Gas Emissions
In 2001, the United States withdrew from the Kyoto Protocol. Since then, the Administration has not advocated for any international agreement or domestic legislation that would impose mandatory limits on the emission of greenhouse gases (GHGs). Frustrated by federal inaction, several states have responded with their own measures to address climate change. Some of these measures, such as heightened GHG reporting requirements and subsidies for alternative energy, impose minor costs on private parties and are therefore unlikely to generate much legal or political controversy. However, a newer set of measures that impose mandatory emissions limits is likely to produce conflict. Such measures include: the California Air Resources Board's (CARB) regulation limiting GHG emissions from new motor vehicles; (1) regulations in three states and one county limiting GHG emissions from power plants; (2) a suit brought by eight state attorneys general and the City of New York claiming that GHG emissions by electric generation facilities create a public nuisance and seeking injunctive relief in the form of reduced emissions; (3) and the Regional Greenhouse Gas Initiative (RGGI), a plan by seven northeastern states to establish a regional cap and trade program for GHG emissions from electric generation facilities. (4)
One important objection to these state efforts is that they are preempted by the federal foreign affairs power as exercised, for example, in the withdrawal from the Kyoto Protocol. This Note considers the merits of this objection and concludes that mandatory state limits on GHGs are not preempted by the federal foreign affairs power. Part I describes the Supreme Court's foreign affairs preemption jurisprudence, paying particular attention to the 2003 case American Insurance Ass'n v. Garamendi. (5) Part II examines the case for conflict preemption--referred to as the bargaining chip theory--and concludes that the record does not show a clear enough conflict to warrant preemption. The goals of federal climate change policy are difficult to discern, and the likely effects of state GHG regulations on the achievement of those goals will be hard for courts to predict given the limitations of their institutional competence. Part III examines the case for dormant preemption, concluding that it is inappropriate to apply that doctrine to state GHG regulations. Without a controlling law indicating that state GHG regulations constitute a "matter of foreign policy" or some form of direct interaction between the states and foreigners, applying dormant foreign affairs preemption to state GHG regulations would dangerously expand a doctrine that already lacks clear limits.
I. FOREIGN AFFAIRS PREEMPTION AFTER GARAMENDI
None of the federal statutes, treaties, or executive agreements that relate to climate change expressly preempt state law. (6) Nevertheless, courts could strike down state climate change laws if they deemed preemptive intent to be implied in federal law. Implied preemption comes in two forms: field preemption and conflict preemption. (7) Under field preemption, a state statute is void if either the federal regulatory scheme is "so pervasive" that "Congress left no room for the States to supplement it," (8) or the federal interest in the subject area it regulates is "so dominant" that federal law "will be assumed to preclude enforcement of state laws on the same subject." (9) Under conflict preemption, a state statute is void if it makes compliance with both state and federal law impossible. (10)
In addition to these forms of implied preemption, the Supreme Court has twice held that federal courts may invalidate state laws even in the absence of an enacted controlling federal law under what has been called the "dormant foreign affairs power." The Court first used this power in the 1968 case Zschernig v. Miller. (11) Zschernig concerned an Oregon probate statute that forbade inheritance by nonresident aliens without a showing that the alien's home country would neither confiscate the inheritance nor deny American citizens a reciprocal right. …