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The Constitutionality of Taxing Agricultural and Land Use Emissions

October 2019

Citation: ELR 10953

Author: Michelle Melton

Economywide legislation to address climate change will be ineffective unless it addresses greenhouse gas emissions from agriculture and land use. Yet incorporating these sectors into the most popular policy proposal—a carbon tax—carries legal risk that policymakers and legal commentators have ignored. This Article explores whether a carbon tax, as applied to agriculture and land use, is a direct tax within the meaning of the Constitution; it concludes that text, history, and Supreme Court precedent up through National Federation of Independent Business v. Sebelius (2012) leaves such a tax open to challenge. Consequently, policymakers should avoid eliminating EPA’s regulatory authority over greenhouse gas emissions in exchange for a carbon tax.

Michelle Melton is a recent graduate of Harvard Law School. This Article received honorable mention in the Environmental Law Institute’s 2018-2019 Constitutional Environmental Law Writing Competition.

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