The Constitutional Clause Being Used to Threaten Climate Change Policies

An interstate commerce clause is being used to challenge climate change measures and regulations.

1 minute read

October 17, 2019, 12:00 PM PDT

By Camille Fink


Crude Oil Train

Kurt Haubrich / Flickr

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."

Tuesday, October 1, 2019 in Sightline Institute

Sweeping view of Portland, Oregon with Mt. Hood in background against sunset sky.

Oregon Passes Exemption to Urban Growth Boundary

Cities have a one-time chance to acquire new land for development in a bid to increase housing supply and affordability.

March 12, 2024 - Housing Wire

Aerial view of green roofs with plants in Sydney, Australia.

Where Urban Design Is Headed in 2024

A forecast of likely trends in urban design and architecture.

March 10, 2024 - Daily Journal of Commerce

Cobblestone street with streetcar line, row of vintage streetlights on left, and colorful restaurant and shop awnings on right on River Street in Savannah, Georgia.

Savannah: A City of Planning Contrasts

From a human-scales, plaza-anchored grid to suburban sprawl, the oldest planned city in the United States has seen wildly different development patterns.

March 12, 2024 - Strong Towns

Aerial View of Chuckanut Drive and the Blanchard Bridge in the Skagit Valley.

Washington Tribes Receive Resilience Funding

The 28 grants support projects including relocation efforts as coastal communities face the growing impacts of climate change.

March 18 - The Seattle Times

Historic buildings in downtown Los Angeles with large "Pan American Lofts" sign on side of building.

Adaptive Reuse Bills Introduced in California Assembly

The legislation would expand eligibility for economic incentives and let cities loosen regulations to allow for more building conversions.

March 18 - Beverly Press

View from above of swan-shaped paddleboats with lights on around artesian fountain in Echo Park Lake with downtown Los Angeles skylien in background at twilight.

LA's Top Parks, Ranked

TimeOut just released its list of the top 26 parks in the L.A. area, which is home to some of the best green spaces around.

March 18 - TimeOut

News from HUD User

HUD's Office of Policy Development and Research

Call for Speakers

Mpact Transit + Community

New Updates on PD&R Edge

HUD's Office of Policy Development and Research

Urban Design for Planners 1: Software Tools

This six-course series explores essential urban design concepts using open source software and equips planners with the tools they need to participate fully in the urban design process.

Planning for Universal Design

Learn the tools for implementing Universal Design in planning regulations.