Law Commons^™

The idea of permit trading in the United States can be traced as far back as the 1970s, but emissions trading has really only became a popular and exportable idea with the more recent demands that environmental protection acknowledge economic pressures through such ideas as sustainable development. Now the idea of emissions trading has caught on in South America, China and Europe as well. Yet in the eagerness of governments and industry to work out the technical details and legal mechanics of the emissions trading tool, insufficient attention has been paid to its underlying legal and ethical assumptions. In this …

What powers do the several states of the United States have individually to enter into environmental agreements with other sovereign nations? In this article, the author reviews the powers that states may have generally and then specifically regarding environmental agreements. Several traditional tools of analysis have historically been used including the constitutional doctrine of pre-emption, cooperative federalism and the foreign affairs doctrine. Some newer tools of analysis are also offered including the revival of the treaty-compact and the author’s own concept of “deemption.” The United States Senate’s explicit refusal to ratify the Kyoto Protocol, coupled with the consequent state initiatives …