Document Type



Constitutional Law | Energy and Utilities Law | Environmental Law


Absent Federal legislation or leadership on regulatory responses to greenhouse gas (“GHG”)-based climate problems, the states have sought, either on their own or through regional agreements, to restrict the amount of GHG released by the electric power plants within their states. These systems are subject to “leakage,” the ability of power providers to receive electricity from an “extra-regional” and hence unregulated source. While practical considerations may limit the immediate impact of leakage, in the long term, state-based systems perversely provide competitive advantages to unrestricted GHG-emitting power sources that do not have the burden of compliance. One logical avenue to address leakage would be to directly or indirectly ban or penalize the purchase of power from other sources. Prohibiting these solutions is the combination of the Supreme Court’s dormant commerce clause analyses that prevents states from discriminating against identical goods based on origin. Most relevant and troubling is the West-Lynn Creamery case, which shows the Court’s willingness to find unconstitutional purpose among several disparate statutory schemes if, in combination, their effect is to penalize an out-of-state supplier of identical goods. This Article reviews this line of reasoning and posits that this limitation is the ultimate rationale for a Federal response to GHG-based climate legislation.