Cap and Trade Meets the Interstate Commerce Clause: Are Greenhouse Gas Regulations Constitutional after Lopez and Morrison?

Pace Environmental Law Review, Vol. 29 Issue 1

November 2009

By Ilan Gutherz

The Supreme Court’s decisions in United States v. Lopez and United States v. Morrison have caused legal scholars to question the enduring constitutionality of some of our nation’s key environmental laws. However, no one has yet examined the impact these decisions could have on federal proposals to address global climate change.

This Comment attempts to answer that question. Part 1 of this Comment begins by sketching the history of American involvement in combating climate change. Part I also briefly explains the three leading policy options for regulating greenhouse gases in the U.S.: "cap-and-trade," "command-and-control" regulations, and a tax on carbon. In Part II, I discuss the significance of Lopez and Morrison to our present understanding of the Interstate Commerce Clause. In Part III, I apply the Court's current Commerce Clause framework to the leading options for limiting the emission of greenhouse gases. Part III lays out the main constitutional arguments against and in favor of these options, and draws on proposed legislation and Environmental Protection Agency (EPA) regulations for examples. In Part IV, I conclude that the Court's current approach to the Commerce Clause raises the possibility that comprehensive greenhouse gas regulations could be ruled unconstitutional, and that the answer will ultimately depend on how the Court characterizes the challenged law. I also offer a series of recommendations that will improve the chances that a greenhouse gas regulatory system will withstand constitutional scrutiny, even under the Court's post-Lopez Commerce Clause jurisprudence.

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This is the introduction to an article that originally appeared in Volume 29 Issue 1 of the Pace Environmental Law Review. For the full article, click here.