Saturday, August 18, 2018

On Leaving Coal Emissions to the States: Implications for American Federalism

With the transportation (i.e., fuel) and power (i.e., coal) sectors accounting for a majority of the carbon emissions in the U.S., according to the EPA, the Trump administration’s moves to freeze his predecessor’s fuel efficiency standards and relax pollution rules for power plants needing renovation put at risk the declining trend of emissions in 2018. The implications for climate change (e.g., hotter summers) were stark, according to Janet McCabe, who had been Obama’s EPA air chief.[1] The Trump administration’s proposal to allow the states, including West Virginia, to set their own rules for regulating coal was, according to the New York Times, “the administration’s strongest and broadest effort yet to address what the president has long described as a regulatory ‘war on coal’.”[2] An implication is that carbon emissions from coal in the U.S. would likely increase as a result, even though large states like California and New York could be expected to tighten the rules. The interesting point about turning the regulations to the states revolves around federalism. Constitutionally speaking, should the states regulate the carbon emissions from coal?
The Commerce Clause of the U.S. Constitution enumerates the powers of the federal government. Regulating interstate commerce is one such power. Does a power plant emitting carbon emissions in West Virginia, for instance, constitute interstate commerce—even if the carbon eventually crosses state lines? I submit that buying of the coal from outside the state does constitute interstate commerce, whereas the use of said coal within the state does not. Regulations on the burning of the coal, including whether pollution-abatement equipment shall be required, would according to this view be the state’s prerogative. To claim that the burning of the coal is interstate because carbon emissions float over other states is problematic.
To claim that anything that affects another state is thereby interstate leaves open the possibility that virtually anything—even a farmer growing wheat for his own consumption—can be counted as interstate. Furthermore, that no commerce is actually involved may be overlooked or dismissed—or assumed because of an effect, even indirect, on commerce. Coal emissions from West Virginia could float over Canada—would this justify Canada in regulating West Virginia? Even the foreign policy angle seemingly justifying U.S. regulation at the federal level seems weak to me.
Least it be argued that the states should not be semi-sovereign, the U.S. Constitution, as per Madison’s Notes, relies in part on the state governments’ power being sufficient to act as a check on encroachments or even tyranny at the federal level. Expansively “interpreting” interstate and commerce is just one nail in the coffin of American federalism—a system already stymied from being seriously out of balance.
If my analysis here is correct, then the point of judgement for the American electorate—the popular sovereign over both the U.S. Government and the state governments—involves the tradeoff between invigorating federalism and risking more emissions, and thus warming of the planet. Such a judgment, I submit, is one that an electorate can make, yet we should not forget that Jefferson and Adams agreed that a virtuous and educated electorate is necessary for a republic—or republic of republics—to be sustained.

[1] Lisa Friedman, “Trump’s Plan for Coal Emissions: Let Coal States Regulate Them,” The New York Times, August 18, 2018.
[2] Ibid.