California asserts global power in defiance of Trump administration policies
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climate battle
California’s war with Trump about climate policy hasn’t yet grabbed headlines like the immigration clashes. But it represents another key arena in which the state is aiming for a bigger role in international affairs.
Driving that effort has been Brown. Even before California joined with 15 other states and Puerto Rico to form the United States Climate Alliance to uphold commitments to the Paris Agreement, Brown had become an outspoken advocate for combating climate change.
In 2015—before the Paris Agreement—he helped create the Under2 Coalition, a nonbinding worldwide agreement that commits signatories to reduce carbon emissions to net-zero by 2050.
Last year, Brown was named a special adviser for states and regions ahead of the United Nations Climate Change Conference. That appointment came on the heels of a high-profile trip to China to meet with President Xi Jinping and other officials to forge closer ties on clean energy.
A New York Times story at the time noted it was unusual for a Chinese president to meet with an American governor in a formal setting in Beijing. It also came only a few days after Trump announced his intent to withdraw from the Paris Agreement.
A less prominent example of California’s global climate push is its cap-and-trade program for reducing carbon emissions, launched in 2013 and extended to include Quebec in 2014 and Ontario this past January. Under the linked program, carbon allowances and offset credits can be exchanged among participants in all three jurisdictions’ cap-and-trade initiatives.
Engstrom and Weinstein pointed out that Congress never objected to the Quebec linkage and so far hasn’t opposed the latest one to Ontario. That might matter for several reasons.
“Continued congressional silence would go a long way toward entrenching a norm in favor of cross-border state action, paving the way for other state efforts to step onto the global stage on climate issues and beyond,” they wrote.
The California Air Resources Board, which oversees California’s cap-and-trade program, is currently working with Oregon, Colombia and Mexico to get legislative authorization for their own programs as well as collaborating generally with the European Union, Latin American countries and China, according to a CARB spokesperson.
“I see this as California continuing to assert that it can do more than the federal government is doing, even in terms of relations with other nations,” says Holly Doremus, a professor of environmental regulation at the University of California at Berkeley School of Law. “It has the market clout to do some of these things in a way that other states wouldn’t be able to.”
Despite the Trump administration’s broader trade dispute with Canada, so far it hasn’t acted against California’s cap-and-trade program with Quebec and Ontario.
But in August, the administration released a proposal that would dramatically roll back rules for U.S. automakers on fuel efficiency and greenhouse gas emissions. Starting in 2020, it would freeze mandates for making vehicles cleaner and more fuel-efficient, targeting one of the key policies for limiting climate change under the Obama administration.
Further, the new proposal challenges California’s right to set its own stricter tailpipe emissions standards. The state has long had a legal federal waiver under the Clean Air Act of 1970 to establish more stringent pollution rules, and at least 13 other states and the District of Columbia have adopted California’s tougher standards.
Becerra has vowed to fight the proposed rules issued jointly by the Environmental Protection Agency and U.S. Department of Transportation, with California and a coalition of other states preparing legal action against the Trump administration’s changes.
“That’s the key point of [environmental] regulatory tension right now between California and the United States,” Doremus says.
SEPARATION OF SPHERES
How that issue will resolve isn’t clear yet. But as California and other states tangle with the Trump administration, it hasn’t gone unnoticed that progressives are now carrying the banner of federalism and states’ rights.
Federalism has been viewed as the rallying cry of conservatives for a long time, reaching new heights under the Rehnquist court in the 1980s and 1990s and continuing to hold sway in the Roberts court.
Legal scholars suggest blue states such as California can take advantage of decisions in recent decades strengthening states’ autonomy—but to different political ends.
The sanctuary cases, for example, typically cite a pair of decisions from the 1990s—New York v. United States and Printz v. United States—to back up their anti-commandeering arguments under the 10th Amendment. In Printz, for example, the Supreme Court said the “separation of the two spheres [federal and state] is one of the Constitution’s structural protections of liberty.”
And in Murphy v. National Collegiate Athletic Association, handed down in May, the high court struck down a 1992 federal law that banned commercial sports betting in most states, finding it commandeered the power of the states by barring them from authorizing sports gambling.
Shortly after the ruling, U.S. District Judge Michael Baylson, the federal judge hearing the sanctuary case in Philadelphia, requested additional briefing on Murphy v. NCAA as it related to Trump’s executive order cutting federal funding to sanctuary jurisdictions. Plaintiffs counsel in the Chicago sanctuary case made a similar request.
As cases testing foreign affairs federalism reach the Supreme Court, federalism might prove to be just a political football, Engstrom and Weinstein acknowledged in their article, “What If California Had a Foreign Policy?”
But, “at the very least, a more forward-leaning state role on climate, trade and other problems with a global cast will create uncomfortable dissonance for conservative justices who have long laced their opinions with encomiums to federalism’s virtues,” they wrote.
Glennon of Tufts University tells the Journal that the Supreme Court could take up the issue of presidential policies that conflict with state-level foreign affairs initiatives. He points out that while the court sided with the executive branch in Garamendi, that 5-4 decision has since been widely criticized.
“With the scope of presidential power at issue in this administration, this is one issue that may be ripe for revisiting,” Glennon says.
Mark F. Walsh is a New York City-based freelance writer. He is a former reporter for ALM Media publications.
This article was published in the October 2018 ABA Journal magazine with the title "California Dreaming."
