Updating State Climate Change Activity (Kysar and Meyler Wonder If Its Constitutional)

Here’s the latest: the Western Climate Initiative among seven US governors and four Canadian provincial premiers, takes shape to create a market-based cap-and-trade emissions reduction program (report here from the NY Times). The program emerges from the terms of this February 2007 agreement. 

Leaving aside the question of whether this qualifies as a compact (sure looks like one), are this and similar undertakings consistent with constitutional constraints on state foreign-policymaking?  In “Like a Nation State“, Douglas Kysar and Bernadette Meyler suggest they may not be.  

The piece plays to the “bargaining chip” rationale for keeping the states out of foreign relations, as in, if the states can go it alone, they may weaken the nation’s negotiating position on the international plane.  The problem with state climate change initiatives: if the states sign on to emissions reductions on their own, the U.S. will be in a weaker position to extract emissions reductions from other countries.  That’s a plausible argument against state activity.  On the other hand, when California and these other economies sign on to reductions, they advance the overall objective of reducing global emissions.  As Arnold Schwarzenegger loves to point out, in terms of economic size California would rank fifth among nations.  That presumably compensates for the lost chips, especially where we’re looking at an Administration unwilling to use them in the first place.  The bargaining chip rationale doesn’t play much of a role in the big foreign affairs preemption cases (Zschernig, Crosby, and Garamendi, among others).

Those decisions rest on the danger of a more direct kind of interference in national foreign-policymaking.  Going back to Chy Lung, the concern has been that state activity will upset relations with other states and result in retaliation against the nation as a whole.  Even if (as Kysar and Meyler explain) state climate change policy involves scrutiny of other countries’ climate policies (mostly on the question of hooking up emission markets), they’d be unlikely to result in retaliation, or even complication.  If California disses the EU about the structure of its carbon markets, the EU is hardly likely to complain to Washington about it, much less respond with concrete measures against the US as a whole. 

The piece includes a lucid description of some very complex policies.  The doctrinal analysis notwithstanding, it concludes that California’s program will pass muster in the way of civil disobedience.  I’m not sure I buy the analogy, because I don’t think there’s anything clearly unlawful about the activity.  But in the absence of any sort of clear federal position on the state activity, it’s hard to see a court deploying Zschernig to strike it down.