The Commerce Clause Implications of California’s Climate Change Initiatives


Despite the growing body of scientific research regarding a potential link between increasing greenhouse gases (“GHGs”) and the rise in global temperatures, the federal government has not taken the affirmative actions necessary to regulate the emissions of GHGs. This regulatory “gap”

has left the states to attempt to address the issue, if at all, in a piecemeal fashion. California policymakers

have stepped in with an aggressive regulatory program to attempt to address this problem of climate change (also called global warming). Two recent initiatives addressing climate change have been passed by the California Legislature: AB 32, which aims to decrease GHG emissions to 1990 levels (which were 25% below the present levels) by 2020, and SB 1368, which prohibits any loadserving

entity, and any local publicly owned electric utility, “from entering into a long-term financial

commitment…unless any baseload generation… complies with a greenhouse gases emission performance standard,” and calls on the California Public Utilities Commission (“CPUC”) and the California Energy Commission (“CEC”) to establish such emission performance standards (“EPS”).

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