The Constitutional Clause Being Used to Threaten Climate Change Policies

North Dakota is considering filing a lawsuit after Washington Governor Jay Inslee signed legislation limiting the volatility of oil coming into the state. Michael Meyer explains the legal argument, based on the Dormant Commerce Clause, that is behind the possible action.

The Commerce Clause in the Constitution allows Congress to regulate commerce "among the several states." "The 'dormant' part arises from the implication that only Congress shall have this power, meaning that states themselves are prohibited from regulating commerce among the states," says Meyer.

He notes that the clause has been used in recent years in legal arguments against climate change measures. "In fact, in a case that is still being litigated, companies backing the Millennium Bulk coal export terminal on the Columbia River brought a lawsuit based on the Dormant Commerce Clause to challenge Washington’s denial of a critical permit."

North Dakota could argue that the oil being brought into Washington is not a hazard, the volatility measure serves no legitimate safety purpose, and Washington is therefore limiting interstate commerce. Whether this argument would hold up in court is unclear, notes Meyer. "Regardless, the Dormant Commerce Clause will likely continue to make its periodic appearances in litigation attacking new climate policies."