Looking Beneath the Surface of Rocky Mountain Farmers Union and Dormant Commerce Clause Challenges to State Environmental Efforts

Abstract

With Congress in a state of perennial gridlock, California has taken action in the fight against global warming and made notable progress in reducing its greenhouse gas emissions. Since the transportation sector is California’s single largest source of greenhouse gas emissions, the state designed the Low Carbon Fuel Standard to measure and reduce greenhouse gas emissions from transportation fuels. Trade groups, unhappy with this move, challenged the Low Carbon Fuel Standard on dormant Commerce Clause grounds. The district court found the Low Carbon Fuel Standard unconstitutional, but the court of appeals reversed, allowing the regulations to take effect. This Note explores the reasons for these opposite outcomes. It argues that judges’ values play an important role in judicial decision making in general, and in dormant Commerce Clause inquiries in particular. As judges have different values, this leads to inconsistent and unclear dormant Commerce Clause case law. To address this problem, judges should employ deference in these cases, focus dormant Commerce Clause inquiries on whether the challenged statute or regulation discriminates in practical effect, and require evidence of actual discrimination.