TA case brought to the attention of the U.S. Supreme Court this week could have profound implications on all state regulations relating to climate change, including clean electricity mandates or vehicle fuel standards. But the arguments in court on Tuesday didn’t actually center on the environment. The argument was not about environment, but rather about pigs.
California’s 2018 law requires that all pork products sold in California come from places where the sows can stand and turn. This was then challenged by the pork industry, which argues that California’s regulation effectively mandates the practices of hog farmers in a state like Iowa, since now they have to change their practices in order to sell pork in California. The dormant commerce provision, a section of law that has been in the forefront of the argument, is at the core of the dispute. It could also have profound climate implications depending on how the Supreme Court interprets it.
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The shadow corollary of the U.S. Constitution’s commerce clause, the dormant commerce section states that interstate commerce is the responsibility of the federal government. Courts have decided that—because the feds regulate interstate commerce—states shouldn’t do it themselves.
But almost anything a state does is likely to have some impact on commerce in other states (if New York lowers its tax on gasoline, it might cause fewer people to buy gasoline in New Jersey, for instance) so there’s some important (though somewhat complicated) limitations to how courts have applied the dormant commerce clause to disputes over state law. In this case the pork industry asks the court for the application of the dormant trade clause in a wider range of situations.
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Dormant commerce arguments have been used by environmentalists over the years to try to reverse state regulations. Green energy mandates, for example, might be designed to force an energy company from another state to transition to greener energy sources. Most of those challenges have failed, though there’s currently one case being heard in federal court in the Northeast, FERC vs. PJM Power Providers groupUsing similar arguments, we are challenging mandates for clean energy in states.
Depending upon how the Supreme Court rules in the pork case it may affect the PJM and other state climate laws. It could also make those other climate laws more susceptible to similar lawsuits. That would impact their ability to implement climate policy. Though lawyers for pork producers made the case in oral arguments yesterday that environmental statutes, such as Colorado’s renewable energy mandates, would stand even with the broader application of the case law they’re seeking.
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It’s hard to predict what the court will decide when it hands down its decision next summer. Views of the dormant commerce clause don’t fall along typical ideological lines. The Biden administration, for instance, released an amicus brief arguing against California’s animal cruelty law, but in such a way that would likely not threaten environmental regulations in other states. On the other hand, Justice Clarence Thomas, widely considered the lodestar of the court’s ideological Right, could decide in favor of California. (The dormant commerce clause appears nowhere in the constitution, which, according to Thomas’s “textualist” judicial viewpoint, means it should not exist.)
And judging by the general tenor of questions on Tuesday, the court doesn’t seem inclined to rule in favor of the pork producers, and thus likely won’t open state environmental laws to more legal challenges. “I would be surprised,” says Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School. “But this Supreme Court has done surprising things recently.”
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