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Abstract

California’s Low Carbon Fuel Standard (LCFS), enacted as part of the State’s pioneering Global Warming Solutions Act (AB 32), purports to regulate the amount of carbon emissions associated with fuels consumed in the state. Part of this scheme involves assigning numeric scores to vehicle fuels reflecting the amount of carbon emissions associated with their production, transportation, and use. The scores are part of a “cap-and-trade” scheme to lower the state’s total amount of carbon emissions associated with fuel use. Out-of-state industry groups brought a challenge in the United States District Court for the Eastern District of California, alleging that the LCFS violated the “dormant Commerce Clause” of the United States Constitution. The United States District Court for the Eastern District of California agreed with the Plaintiffs, and issued a pre-liminary injunction. On October 16, 2013, the Ninth Circuit reversed and remanded. This Note describes the background of the dormant Commerce Clause and its application in previous environmental regulations. It then analyzes the argu-ments on both sides of the challenge to California’s LCFS, and suggests a course of action for California and other states going forward to comply with the Con-stitution in this developing area of law. Finally, this Note discusses the application of dormant Commerce Clause doctrine to the scenario of global cli-mate change, and the relevance of global warming as a critical issue that states can be allowed to regulate, especially when the federal government has not.

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