Governor Schwarzenegger’s Foreign Policy

Local actors are having a foreign policy field day lately. Yesterday, California Governor Arnold Schwarzenegger accepted an invitation from the UN Secretary General Ban Ki-moon and addressed the U.N. General Assembly. You can watch the Governor’s speech here (or read a transcript here). Schwarzenegger’s speech focused on what California is doing about climate change. Emphasizing that California is “the seventh largest economy in the world,” the Governor sought to place California’s efforts on the global stage:

California is mobilizing technologically, financially and politically to fight global warming change. And we’re not doing this alone. While California is leading in the US we are building on the work of the European countries who have led the way up until now and have done extraordinary work. England has already met its Kyoto goals. Germany has pioneered solar. The EU has led with its trading systems, and the list goes on and on.

Of course, California’s not a sovereign state like Germany nor a supranational institution like the EU –it’s a sub-national unit of the United States, and one on which the Constitution places strict limits – prohibiting it from entering into treaties and limiting it to only those compacts with foreign powers approved by Congress. Moreover, the Supreme Court has interpreted the President’s Foreign Affairs Power to preserve his ability to speak with “one voice” for the United States and in the process upheld the federal government’s power to preempt or override state policies that run afoul of U.S. foreign policy (the limits of which will undoubtedly be tested next month in the Medellin case). Obviously, the Governor knows these things and his speech looks like he’s walking the line of proselytizing California’s target-based limits for greenhouse gas emissions without setting off a hostile reaction from a White House that has so far largely resisted such limits. Still, there are aspects of the speech that make me wonder about how far California can go. For example, Governor Schwarzenegger finished his speech with a call to arms:

That sure sounds to me like a foreign policy position– get a new, universal agreement on climate change—that might not coincide with the foreign policy position of the United States (indeed, whether or not it’s good policy, the U.S. position may very well be to ensure that there is no action on climate change to avoid additional costs to the U.S. economy that would come from such action).

Of course, this was a speech, and the Governor would likely defend his right to advocate policy positions for his state, even on the world stage, when he’s invited to do so. But, I wonder, putting aside the underlying arguments’ merits, could the federal government do anything to limit the Governor’s ability to go around the world advocating a new climate change agreement, if in fact, the federal government has decided it does not want such an agreement?

One area, for example, that might warrant closer federal scrutiny is the Western Climate Initiative (WCI), a collaboration “launched in February 2007 between the Governors of Arizona, California, New Mexico, Oregon and Washington to meet regional challenges raised by climate change.” The original text among the Governors of these states, promised collaboration, including “[s]etting an overall regional goal, within six months . . . to reduce [greenhouse gas] emissions from our states collectively, consistent with state-by-state goals” and “developing, within eighteen months of the effective date of this agreement, a design for a regional market-based multi-sector mechanism, such as a load-based cap and trade program, to achieve the regional GHG reduction goal.”

An agreement among states like this would certainly seem to warrant closer scruity by Congress under the Compact Clause (similar scruitny, for example, has already arisen with respect to the Northeastern States’ Regional Greenhouse Gas Initiative). Moreover, the Executive Branch might want to take a closer look at the WCI since in the ensuing months it has expanded its membership to include two Canadian provinces (British Columbia and Manitoba) and in the August 2007 Statement of a regional greenhouse gas emission goal, listed criteria for additional members, including other Canadian provinces along with U.S. and Mexican states. In other words, it looks like these U.S. states are working with foreign sub-national units to try and produce an agreed reduction in the aggregate greenhouse gas emissions of all the participants. In the next year, moreover, the WCI participants will work to devise a market-based mechanism to achieve this goal. It will be interesting to see if the goal established actually leads to changes in state laws on their own emission standards, or if it involves adopting the very trade-and-cap systems that are part of the Kyoto Protocol so heartily resisted by the federal government.

As such, I’m left wondering if this might be an instance of an agreement that undermines the supremacy of the federal government on its climate change policy? And, if so, is that such a bad thing? To what extent, should the Constitution be read to limit Governor Schwarzenegger and his colleagues in other U.S. states having independent positions on issues like a global response to climate change and cooperating with foreign powers in effectuating those positions? Moreover, once we move beyond the Constitution, there are also interesting international law questions about the WCI. What status does it have — is it a treaty or a political commitment among the participants? If it’s a treaty, who has international legal responsibiltiy for a failure by one of the participants to fulfill the obligation to achieve the regional emission reduction goal– does it lie with the participating sub-national entity, or the national government of which that entity is a part?