University of San Diego

San Diego Journal of Climate & Energy Law


In this Article, we argue that what constitutes a like product for Dormant Commerce Clause purposes should be seen through a climate change lens. Without the climate change lens, some products may appear alike that are actually different in ways that directly implicate traditional state police power concerns. Lower federal courts have not yet embraced what we call the climate change lens. However, very few cases involving climate-change-related state legislation have been litigated, and there is indication in at least one recent federal appellate court decision that a climate change lens may be viable.

Our goal here is two-fold: first, to show that a climate change lens can make us understand that some apparently discriminatory state treatment of like products is in fact differential treatment of different products, and, second, that there is precedential basis for courts adopting the climate change lens and hence a more deferential posture toward state climate change initiatives.