California’s Agreement With Quebec Is Not a Treaty — At Least For Now

Last week, Judge William Shubb of the U.S. District Court for the Eastern District of California ruled that the Agreement between California and Quebec to jointly operate a GHG cap-and-trade market did not violate either the Treaty Clause or the Compact Clause.  These are not parts of the Constitution that are normally a focus of environmental law classes, so take what follows with an appropriately sized grain of salt.

That being said, I think that the Judge got it right.

How can that be given that an agreement between California and Quebec – not only part of a foreign state, but one where they speak French! – is not a treaty?  Because the agreement does not control in any way how either jurisdiction actually regulates GHGs.  Instead, it is much more limited.  It merely provides that each sovereign, while separately regulating GHGs, will recognize allowances created by the other.  Moreover, either entity may withdraw, as was demonstrated by the withdrawal of Ontario, which had briefly been a party to the Agreement.  Based on the case law discussed by Judge Shubb, California seems to have much the better of the argument.

But.

In my thoroughly objective view, we have the most outcome-based Supreme Court that I can recall, and I don’t see this court as being sympathetic to California’s position.  Moreover, the conservatives on the Court can rub the language of Massachusetts v. EPA in the face of the climate hawks.  In discussing standing in that case, the Court said:

When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted.

Of course, reliance on this language assumes the conclusion – that the Agreement is, in fact, a treaty – but that will not necessarily slow down those on the Court opposed to GHG regulations.

Which does bring up another point.  Why are this administration and conservatives on the Court, both of whom purport to believe in federalism, so opposed to state efforts to regulate GHGs?

I think I’ll leave that one for another day.

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