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Josephine R. K. Strauss Prof. Myhre LAW 100H 15 December 2016 Applying the Commerce Clause to Carbon Dioxide Regulation and Reduction Climate change is an issue that is paramount to the way life is conducted and how society will interact on an international scale in the future. Due to the widespread effect climate change will have on a variety of industries and ecosystems, it will impact countries and their economies in differing ways, and often disproportio
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  Josephine R. K. Strauss Prof. Myhre LAW 100H 15 December 2016 Applying the Commerce Clause to Carbon Dioxide Regulation and Reduction Climate change is an issue that is paramount to the way life is conducted and how society will interact on an international scale in the future. Due to the widespread effect climate change will have on a variety of industries and ecosystems, it will impact countries and their economies in differing ways, and often disproportionately. The climate change the planet is currently experiencing is the result of the emission of excessive carbon dioxide and other greenhouse gasses into the atmosphere due to human activity. 1  This is also known as anthropogenic climate change and has increased steadily since the onset of the industrial revolution. Since the innovation of key mechanical technologies, the standard of living has increased along with the exponential growth of the global population. These significant factors have led to rapid consumption of fossil fuels with very little mitigation efforts. In the United States Constitution, there are certain areas where language and rhetoric could help to provide a more stringent level of regulation for these pollutants and potentially detrimentally influence the rate of global warming and the resulting disastrous consequences. Article I section 8 of the US Constitution, the Commerce Clause, would be a beneficial government document to draw upon to impose more stringent regulations on greenhouse gas emissions since the result of global warming will have huge impacts on state and national economies. 1   Anthropogenic Climate Change, Global Greenhouse Warming, Accessed December 03, 2016, http://www.global-greenhouse-warming.com/anthropogenic-climate-change.html.  2   Climate Change: Basic Information, EPA Accessed December 12, 2016,   The topic of global warming and climate change has been a significant conflict in US  politics. While scientific research has steadily provided supporting evidence for the global changes that are occurring, there are still some who deny such facts and write them off as a hoax. In a recent report by the Environmental Protection Agency (EPA), it was noted that over the past century global temperatures have risen 1.5 degrees Fahrenheit, and are expected to rise an additional .5-8.5 degrees Fahrenheit in the next one hundred years. 2  These changes in temperature are the direct cause of an amplified greenhouse effect as a result of increased greenhouse gas emissions. This increased greenhouse effect traps additional radiation from the sun in Earth’s system, causing the surface temperature of the planet to rise. 3  As the ocean absorbs more heat, melting the ice caps (which carry a high albedo a reflect a great deal of heat), this additional trapped heat further exacerbates the issue as overall albedo diminishes. Prior to the industrial revolution of the nineteenth century, the record highest concentration of CO 2  in the atmosphere peaked around 300 parts per million (ppm). 4  According to current readings from October 2016 recorded by National Aeronautics and Space Administration (NASA) carbon dioxide concentration in the atmosphere is at a staggering 404.93ppm. 5  This causal relationship  between greenhouse gas emissions and temperature rise has led to huge impacts on society that are estimated to increase in frequency and intensity. Focusing on the Pacific Northwest Region of the United States, changes in climate will drastically affect many aspects of the economy including water supply, coastal resources, ecosystems, and agriculture. 6  These are huge sectors that control a significant portion of jobs within the region as well as play into exporting and 2   Climate Change: Basic Information, EPA Accessed December 12, 2016, https://www.epa.gov/climatechange/climate-change-basic-information. 3   What Is the Greenhouse Effect? LiveScience, Accessed December 12, 2016, http://www.livescience.com/37743-greenhouse-effect.html. 4   Carbon Dioxide, NASA, Accessed December 12, 2016, http://climate.nasa.gov/vital-signs/carbon-dioxide/. 5  Ibid. 6   Climate Impacts in the Northwest, EPA, Accessed December 15, 2016, https://www.epa.gov/climate-impacts/climate-impacts-northwest.  importing industries that are connected with national and international markets. When looking at the causes of these climate changes, it is evident that CO 2  plays an important role in how rapidly change occurs, and only through the regulation and reduction of this pollutant can this process be slowed. However, significant critical issues exist when it comes to regulation and reduction of CO 2 . Carbon dioxide emissions do not just harm the country or state from which they are emitted. Similar to other air pollutants, this gas contributes to a global system of air flow and the make-up of the atmosphere. This makes the creation of standard, impactful regulations difficult as it requires the commitment of many nations, and the documents that connect these nations on this matter often lack a binding enforcement clause. Thus it is left to nations, and in the US, individual states, to regulate and reduce. Within the US, this is particularly difficult as different states and regions will experience disproportionate effects as climate change progresses. This is acknowledged in the Massachusetts v. Environmental Protection Agency decision that was  presided over by the US Supreme Court. In the decision, Justice Stevens rejected the EPA’s argument that the Clean Air Act did not cover CO 2  pollution, and held that Massachusetts had standing to sue to protect its “quasi-sovereign interest” as a state. 7  This was a landmark decision as it put weight to the climate change argument and acknowledged that a state will be negatively impacted as a result of anthropogenic climate change. However, while this case did create a step in the right direction, it only applied to regulation of emissions from new motor vehicles not  power plants or other sources of emissions. At the state level these factors are all independently monitored and methods of acquiring energy differ significantly. 7  Chicago-Kent College of Law at Illinois Tech, Massachusetts v. Environmental Protection Agency, Oyez, https://www.oyez.org/cases/2006/05-1120 (accessed December 13, 2016).   Within the United States, there is a disproportionate contribution state to state of per capita CO 2  emissions. For instance, the states of Vermont, Oregon, Washington, Idaho and Maine, have the lowest carbon dioxide emissions per capita and employ strong state policies that control carbon emissions and use alternative energy sources. 8  However, three of these states are located in the Northwest Region (referred to above) and will experience damaging consequences to their environments and economies as a result of climate change. These are disproportionate to the effects certain high emitting states will experience such as Kentucky, Wyoming, West Virginia, Indiana, and North Dakota, which are the highest per capita emitters in the US. 9  It is this factor (amongst others) that would allow for federal oversight via the Commerce Clause. The Commerce Clause, located in Article I, Section 8 of the United States constitution is an important power vested in the legislative branch of the US government. 10  This clause provides Congress with the power “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes” and “to make all Laws which shall be necessary and proper to carry into Execution” these powers. 11  The resulting impact from global warming and climate change should fall under the Commerce Clause and Congress’ ability regulate trade between states. The clause has been used in the past to prevent states from passing “legislation that discriminates against or excessively burdens interstate commerce.” 12  In the scope of climate change and disproportionate impacts to coastal states, the regulation of carbon dioxide would fall under this clause. Certain regions of the United States a more vulnerable to climate change, and 8  Brian Wingfield and Miriam Marcus, America's Greenest States, Forbes, Accessed December 12, 2016, http://www.forbes.com/2007/10/16/environment-energy-vermont-biz-beltway-cx_bw_mm_1017greenstates.html. 9  Ibid. 10   Commerce Clause, LII / Legal Information Institute, Accessed December 12, 2016, https://www.law.cornell.edu/wex/commerce_clause. 11  Ibid. 12  Ibid.  
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