By Shelley Welton
This article explores the constitutional viability of expanding domestic, state-run cap-and-trade programs to include Canadian provinces. It examines four constitutional doctrines that might be used to challenge these cross-border collaborations: preemption, the dormant foreign affairs power, the Compact Clause, and the dormant foreign Commerce Clause. Ultimately, it makes the case that while these doctrines are flexible enough that they could be interpreted to prohibit cross-border cap-and-trade, courts would be wise to let these novel and commendable state initiatives proceed. Published in Volume 27 of Natural Resources & Environment.
Read the report State Dynamism, Federal Constraints: Possible Constitutional Hurdles to Cross-Border Cap-and-Trade in Columbia Law School's Scholarship Archive.