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Pike Balancing: Vulnerabilities of State Greenhouse Gas Regulations and Possible Solutions

October 2014

Citation: ELR 10874

Author: Paul T. Stewart

The dormant Commerce Clause prohibits state-level regulations that improperly discriminate against out-of-state-interests or unduly burden interstate commerce. As such, this doctrine may present a barrier to state-level greenhouse gas regulations that affect out-of-state energy and other greenhouse gas sources. But there are ways around this doctrine for states that are careful in how they construct their programs. By arguing that a state-level GHG regulation could impact a much larger portion of global GHG emissions than merely its own state’s contribution, and by arguing in the alternative that the dormant Commerce Clause analysis should not even be applied to a state-level GHG regulation in the first place, states can maximize the chances of their nondiscriminatory GHG regulations surviving dormant Commerce Clause challenges.

Paul Stewart is a third-year J.D. student at Wayne State University Law School and is editor-in-chief of the Wayne Law Review. This Article won the 2013-2014 Beveridge & Diamond Constitutional Environmental Law Writing Competition.

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