Just when I thought the Trump administration could not get any bolder in challenging California’s self-anointed power to determine national climate policy, the Department of Justice (DOJ) on Wednesday filed a constitutional challenge to the state’s greenhouse gas emission trading pacts with the Canadian provinces of Québec and Nova Scotia.
To put this latest initiative in recent historical context, on September 27th, the Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) finalized the “One National Program” rule, which revokes California’s power to promulgate motor vehicle greenhouse gas emission standards. The agencies correctly argue that greenhouse gas emission standards are directly “related to” fuel economy standards and, thus, are preempted by the Energy Policy and Conservation Act.
The One National Program rule is the first part of the agencies’ proposed Safer Affordable Fuel Efficient (SAFE) Vehicle rule. The second part, when finalized, will freeze Obama-era motor vehicle greenhouse gas and fuel economy standards at model year 2020 levels through model year 2026 (83 FR 42989).
To undercut the SAFE rule, California on July 25th concluded a framework agreement with Ford Motor Company, American Honda Motor Company, Volkswagen Group of America, and BMW of North America. The agreement commits the automakers to meet greenhouse gas emission standards that increase in stringency by 3.7 percent annually during model years 2022-2026.
On September 6th, the general counsels for the Department of Transportation and EPA cautioned California Air Resources Board (CARB) Chairman Mary Nichols that the four automakers’ commitments “have not been issued pursuant to federal law” and that CARB’s actions to elicit and coordinate those commitments “appear to be unlawful and invalid.”
On the same day, the Department of Justice launched an antitrust investigation of the four auto companies. DOJ argued that the automakers’ deal with California could “restrict competition by potentially limiting the types of cars and trucks the auto companies offer to consumers,” according to the The Wall Street Journal.
Then this week, on October 23rd, Assistant Attorney General Jeff Clark filed a complaint challenging the constitutionality of California’s climate policy pact with the Canadian provinces as well as the state’s “numerous bilateral alliances, confederations, agreements, or compacts on environmental issues with national and subnational governments in China.”
The complaint outlines four constitutional arguments against California’s international climate agreements.
First, California’s climate pacts violate the Treaty Clause. The Constitution prohibits states from “enter[ing] into any Treaty, Alliance, or Confederation” (Art. I, § 10, cl. 1). California’s Western Climate Initiative with the Canadian provinces constitutes a “Treaty, Alliance, or Confederation.”
To drive home the point, the complaint quotes Massachusetts v. EPA, the Supreme Court decision that set the stage for the Obama-era EPA’s greenhouse gas regulations, and which all progressives profess to revere: “The Supreme Court has recognized and held that, ‘[w]hen a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts . . . cannot negotiate an emissions treaty with China or India . . . .’” Massachusetts, 549 U.S. at 519 (emphasis added).
Second, California’s climate pacts violate the Compact Clause. The Constitution prohibits states, “without the Consent of Congress,” from “enter[ing] into any Agreement or Compact . . . with a foreign Power . . . .” Art. I, § 10, cl. . California never obtained Congress’s consent.
Third, California’s climate pacts flout the foreign affairs doctrine. Several constitutional provisions vest authority for the conduct of foreign affairs in the president. California’s international climate policies “fall outside the area of any traditional state interest” and “interfere with the United States’ foreign policy on greenhouse gas regulation, including but not limited to the United States’ announcement of its intention to withdraw from the [Paris Climate] Accord, and are therefore preempted.”
Fourth, California’s climate pacts violate the Foreign Commerce Clause. The Constitution gives Congress “Power . . .[t]o regulate Commerce with foreign Nations . . . .” (Art. I, § 8, cl. 3). The “credits and offsets” traded under California’s climate pacts “constitute articles of commerce,” which California, rather than Congress, purports to regulate.
The Compact Clause also prohibits states from entering into agreements “with another state” absent congressional authorization. One could thus infer that the northeast states’ Regional Greenhouse Gas Initiative (RGGI) is also unconstitutional until and unless Congress approves it. For whatever reason, the complaint omits the words “with another state” in its excerpt of the Compact Clause.