Josephine R. K.

Strauss

Prof. Myhre

LAW 100H

15 December 2016

Applying the Commerce Clause to Carbon Dioxide Regulation and Reduction

Climate change is an issue that is paramount to the way life is conducted and how society

will interact on an international scale in the future. Due to the widespread effect climate change

will have on a variety of industries and ecosystems, it will impact countries and their economies

in differing ways, and often disproportionately. The climate change the planet is currently

experiencing is the result of the emission of excessive carbon dioxide and other greenhouse

gasses into the atmosphere due to human activity.1 This is also known as anthropogenic climate

change and has increased steadily since the onset of the industrial revolution. Since the

innovation of key mechanical technologies, the standard of living has increased along with the

exponential growth of the global population. These significant factors have led to rapid

consumption of fossil fuels with very little mitigation efforts. In the United States Constitution,

there are certain areas where language and rhetoric could help to provide a more stringent level

of regulation for these pollutants and potentially detrimentally influence the rate of global

warming and the resulting disastrous consequences. Article I section 8 of the US Constitution,

the Commerce Clause, would be a beneficial government document to draw upon to impose

more stringent regulations on greenhouse gas emissions since the result of global warming will

have huge impacts on state and national economies.

1
"Anthropogenic Climate Change," Global Greenhouse Warming, Accessed December 03, 2016,
http://www.global-greenhouse-warming.com/anthropogenic-climate-change.html.
2
"Climate Change: Basic Information," EPA Accessed December 12, 2016,
 The topic of global warming and climate change has been a significant conflict in US

politics. While scientific research has steadily provided supporting evidence for the global

changes that are occurring, there are still some who deny such facts and write them off as a hoax.

In a recent report by the Environmental Protection Agency (EPA), it was noted that over the past

century global temperatures have risen 1.5 degrees Fahrenheit, and are expected to rise an

additional .5-8.5 degrees Fahrenheit in the next one hundred years.2 These changes in

temperature are the direct cause of an amplified greenhouse effect as a result of increased

greenhouse gas emissions. This increased greenhouse effect traps additional radiation from the

sun in Earths system, causing the surface temperature of the planet to rise.3 As the ocean

absorbs more heat, melting the ice caps (which carry a high albedo a reflect a great deal of heat),

this additional trapped heat further exacerbates the issue as overall albedo diminishes. Prior to

the industrial revolution of the nineteenth century, the record highest concentration of CO2 in the

atmosphere peaked around 300 parts per million (ppm).4 According to current readings from

October 2016 recorded by National Aeronautics and Space Administration (NASA) carbon

dioxide concentration in the atmosphere is at a staggering 404.93ppm.5 This causal relationship

between greenhouse gas emissions and temperature rise has led to huge impacts on society that

are estimated to increase in frequency and intensity. Focusing on the Pacific Northwest Region

of the United States, changes in climate will drastically affect many aspects of the economy

including water supply, coastal resources, ecosystems, and agriculture.6 These are huge sectors

that control a significant portion of jobs within the region as well as play into exporting and

2
"Climate Change: Basic Information," EPA Accessed December 12, 2016,
https://www.epa.gov/climatechange/climate-change-basic-information.
3
"What Is the Greenhouse Effect?" LiveScience, Accessed December 12, 2016, http://www.livescience.com/37743-
greenhouse-effect.html.
4
"Carbon Dioxide," NASA, Accessed December 12, 2016, http://climate.nasa.gov/vital-signs/carbon-dioxide/.
5
Ibid.
6
"Climate Impacts in the Northwest," EPA, Accessed December 15, 2016, https://www.epa.gov/climate-
impacts/climate-impacts-northwest.
importing industries that are connected with national and international markets. When looking at

the causes of these climate changes, it is evident that CO2 plays an important role in how rapidly

change occurs, and only through the regulation and reduction of this pollutant can this process be

slowed. However, significant critical issues exist when it comes to regulation and reduction of

CO2.

Carbon dioxide emissions do not just harm the country or state from which they are

emitted. Similar to other air pollutants, this gas contributes to a global system of air flow and the

make-up of the atmosphere. This makes the creation of standard, impactful regulations difficult

as it requires the commitment of many nations, and the documents that connect these nations on

this matter often lack a binding enforcement clause. Thus it is left to nations, and in the US,

individual states, to regulate and reduce. Within the US, this is particularly difficult as different

states and regions will experience disproportionate effects as climate change progresses. This is

acknowledged in the Massachusetts v. Environmental Protection Agency decision that was

presided over by the US Supreme Court. In the decision, Justice Stevens rejected the EPAs

argument that the Clean Air Act did not cover CO2 pollution, and held that Massachusetts had

standing to sue to protect its quasi-sovereign interest as a state.7 This was a landmark decision

as it put weight to the climate change argument and acknowledged that a state will be negatively

impacted as a result of anthropogenic climate change. However, while this case did create a step

in the right direction, it only applied to regulation of emissions from new motor vehicles not

power plants or other sources of emissions. At the state level these factors are all independently

monitored and methods of acquiring energy differ significantly.

7
Chicago-Kent College of Law at Illinois Tech, "Massachusetts v. Environmental Protection Agency," Oyez,
https://www.oyez.org/cases/2006/05-1120 (accessed December 13, 2016).
 Within the United States, there is a disproportionate contribution state to state of per

capita CO2 emissions. For instance, the states of Vermont, Oregon, Washington, Idaho and

Maine, have the lowest carbon dioxide emissions per capita and employ strong state policies that

control carbon emissions and use alternative energy sources.8 However, three of these states are

located in the Northwest Region (referred to above) and will experience damaging consequences

to their environments and economies as a result of climate change. These are disproportionate to

the effects certain high emitting states will experience such as Kentucky, Wyoming, West

Virginia, Indiana, and North Dakota, which are the highest per capita emitters in the US.9 It is

this factor (amongst others) that would allow for federal oversight via the Commerce Clause.

The Commerce Clause, located in Article I, Section 8 of the United States constitution is

an important power vested in the legislative branch of the US government.10 This clause provides

Congress with the power to regulate Commerce with foreign Nations, and among the several

States, and with Indian Tribes and to make all Laws which shall be necessary and proper to

carry into Execution these powers.11 The resulting impact from global warming and climate

change should fall under the Commerce Clause and Congress ability regulate trade between

states. The clause has been used in the past to prevent states from passing legislation that

discriminates against or excessively burdens interstate commerce.12 In the scope of climate

change and disproportionate impacts to coastal states, the regulation of carbon dioxide would fall

under this clause. Certain regions of the United States a more vulnerable to climate change, and

8
Brian Wingfield and Miriam Marcus, "America's Greenest States," Forbes, Accessed December 12, 2016,
http://www.forbes.com/2007/10/16/environment-energy-vermont-biz-beltway-cx_bw_mm_1017greenstates.html.
9
Ibid.
10
"Commerce Clause," LII / Legal Information Institute, Accessed December 12, 2016,
https://www.law.cornell.edu/wex/commerce_clause.
11
Ibid.
12
Ibid.
often have state policies in place to help reduce their contribution to the issue. However, the

issue arises when states not as adversely affected decline to regulate and reduce.

While an application of the Commerce Clause in this manner would benefit both coastal

and land-locked states by reducing carbon emissions and thereby off-setting climate change and

improving health of residents, such a case is unlikely to rise in the near future or be decided

favorably. Given the currently political climate of the United States, it is clear that cases

revolving around carbon dioxide reduction are not in favor. President-elect Donald Trump is

quoted as saying that nobody really knows if climate change is real; however, according to

NASA reports, 97% of publishing climate scientists side with the fact that climate change is real

and very much caused by humans.13 This attitude toward the climate during the Trump

administration is only compacted with his choice for head of the EPA, climate change skeptic

Oklahoma Attorney General Scott Pruitt.14 In an ideal world, this would not be the situation our

country is faced with confronting. In consideration for the well-being of future generations, it

would be beneficial to see this area grow in a way that embraces utilization of the Commerce

Clause to nationally regulate carbon dioxide and set strict restrictions for emissions. In this sense,

it would be prudent to follow the legislation put forth by the Obama administration, starting with

upholding the Paris Agreement (the Agreement), which the United States ratified in September

of 2016.15 The purpose of this Agreement is to monitor and reduce carbon dioxide emissions on

an international scale. The goal of the Agreement is to keep the global temperature rise below 2

degrees Celsius above pre-industrial temperatures, with the goal of lowering this goal to 1.5

13
Caroline Kenny, "Trump: 'Nobody really knows' if climate change is real," CNN, December 12, 2016, Accessed
December 12, 2016. http://www.cnn.com/2016/12/11/politics/donald-trump-climate-change-interview/.
14
Ibid.
15
United Nations Framework Convention on Climate Change, "Paris Agreement - Status of Ratification," Paris
Agreement - Status of Ratification, Accessed December 12, 2016, http://unfccc.int/paris_agreement/items/9444.php.
degrees Celsius.16 The ideal outcome would be for the United States the follow this plan set-forth

by the United Nations Framework Convention of Climate Change. To accomplish the goals

agreed to in the Agreement, Congress should adopt and implement President Obamas Climate

Action Plan (CAP). The CAP outlines a plan to work with states and industries to set standards

for power plants, increase renewable projects, expand the Better Building Challenge, and reduce

carbon pollution by 3 billion metric tons by 2030.17 Through these changes in state and national

policies the factors creating global warming would be reduced thus limiting the harm incurred on

states that take on a disproportionate amount of the impacts that result from climate change.

This topic is of great personal importance as Climate Change and the resulting effects are

topics I see as extremely relevant to the well-being of communities across the planet. In this day

of intertwining economies and differing beliefs, it is fairly difficult for countries to unite under a

common goal that does not have an immediately measurable solution. People and their political

leaders like to see results, and in the area of climate change, effects are not necessarily

immediate and by the time they reach that intensity it will be past the point of no return and

large-scale permanent damage will have been done. Approaching climate change through city

and county level action is important, but a larger change is needed to make a lasting impact. By

looking at constitutional obligations to confront climate change, whether is be through the

Commerce Clause or the health and safety of American citizens, gives some weight to the

situation. I chose to pursue this area of research to begin an investigation to see if such a

situation were possible. Based on my research thus far, and the precedence set forth by

16
United Nations Framework Convention on Climate Change, "Status of ratification," The Paris Agreement - main
page, Accessed December 12, 2016, http://unfccc.int/paris_agreement/items/9485.php.
17
"FACT SHEET: President Obama's Climate Action Plan," The White House, 2013, Accessed December 12, 2016,
https://www.whitehouse.gov/the-press-office/2013/06/25/fact-sheet-president-obama-s-climate-action-plan.
Massachusetts v. EPA, I believe there is a precedence to employ constitutional obligations to

climate change policy and carbon dioxide reduction and mitigation.

 Works Cited

"Anthropogenic Climate Change." Global Greenhouse Warming. Accessed December 03, 2016.

http://www.global-greenhouse-warming.com/anthropogenic-climate-change.html.

"Carbon Dioxide." NASA. Accessed December 12, 2016. http://climate.nasa.gov/vital-

signs/carbon-dioxide/.

Chicago-Kent College of Law at Illinois Tech. "Massachusetts v. Environmental Protection

Agency." Oyez. https://www.oyez.org/cases/2006/05-1120 (accessed December 13,

2016).

"Climate Change: Basic Information." EPA. Accessed December 12, 2016.

https://www.epa.gov/climatechange/climate-change-basic-information.

"Climate Impacts in the Northwest." EPA. Accessed December 11, 2016.

https://www.epa.gov/climate-impacts/climate-impacts-northwest.

"Commerce Clause." LII / Legal Information Institute. Accessed December 12, 2016.

https://www.law.cornell.edu/wex/commerce_clause.

"FACT SHEET: President Obama's Climate Action Plan." The White House. 2013. Accessed

December 12, 2016. https://www.whitehouse.gov/the-press-office/2013/06/25/fact-sheet-

president-obama-s-climate-action-plan.

Kenny, Caroline. "Trump: 'Nobody really knows' if climate change is real." CNN. December 12,

2016. Accessed December 12, 2016. http://www.cnn.com/2016/12/11/politics/donald-

trump-climate-change-interview/

United Nations Framework Convention on Climate Change. "Paris Agreement - Status of

Ratification." Paris Agreement - Status of Ratification. Accessed December 15, 2016.

http://unfccc.int/paris_agreement/items/9444.php.
United Nations Framework Convention on Climate Change. "Status of ratification." The Paris

Agreement - main page. Accessed December 12, 2016.

http://unfccc.int/paris_agreement/items/9485.php.

"What Is the Greenhouse Effect?" LiveScience. Accessed December 12, 2016.

http://www.livescience.com/37743-greenhouse-effect.html.

Wingfield, Brian, and Miriam Marcus. "America's Greenest States." Forbes. Accessed December

12, 2016. http://www.forbes.com/2007/10/16/environment-energy-vermont-biz-beltway-

cx_bw_mm_1017greenstates.html.