University of San Diego

San Diego Journal of Climate & Energy Law

Library of Congress Authority File


This Article addresses whether S.B. 1368 could hold up to a Commerce Clause challenge in three stages. Part II discuses the dormant Commerce Clause and how it is applied to state laws that potentially affect interstate commerce. It explains the history and development of the concept and fleshes out the two-step test that exists today: (1) courts determine whether a law is facially discriminatory; (2) if not, courts apply a test that weighs the respective burdens and benefits of the law. Part II also discusses the different ways in which many of the current Supreme Court Justices interpret and apply the dormant Commerce Clause. Part III applies the current interpretations and tests of the dormant Commerce Clause to S.B. 1368. Part IV addresses some of the policy considerations involved in the federal and state intersection. States should be allowed to impose their own climate change laws and to set their own caps, following the model of cooperative federalism. This Article concludes by noting that while legislation like S.B. 1368 may not be the best solution to global warming, in the absence of federal legislation, it amounts to legitimate state action. Further, S.B. 1368 serves as a role model that will hopefully inspire a cooperative federalism model.