REPORT

Regulating the Regional Impact of Greenhouse Gas Emissions

Expert Bloomberg BNA authors examine the impact of Rocky Mountain Farmers Union v. Corey, which found that California’s Low Carbon Fuel Standard does not violate the Constitution’s dormant commerce clause. This has important implications for the manner in which states seek to regulate greenhouse gases. Various jurisdictions have made regulatory efforts as attempts to encourage out-of-state emissions reductions with impacts on national commerce, leading to commerce clause litigation.

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By Jonathan Martel, Christopher Jaros, and Allison Rumsey (Nov. 18, 2013)

In September, the U.S. Court of Appeals for the Ninth Circuit ruled that California's Low Carbon Fuel Standard does not violate the dormant commerce clause of the U.S. Constitution. The Ninth Circuit's ruling in Rocky Mountain Farmers Union v. Corey has important implications for the manner in which states seek to regulate what is a global air pollutant. In the case of such pollutants, any individual jurisdiction cannot fully address the environmental impact on its own in-state citizens. In such circumstances, each jurisdiction cares about out-of-state emissions as much as in-state emissions, and in fact may be concerned that its own efforts to regulate in-state may be undermined by higher emissions in other places. Due to these concerns, several jurisdictions have considered or implemented regulatory schemes in an attempt to encourage out-of-state emissions reductions with impacts on national commerce, leading to commerce clause litigation. These cases have important consequences for the future of state regulation of greenhouse gases.


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