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Two Faces of Foreign Affairs Federalism and What They Mean for Climate Change Mitigation

  • Jean Galbraith (a1)
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President Trump has done the impossible: he has made the international community enthusiastic about U.S. federalism. Even as they express dismay at Trump's plan to abandon the Paris Agreement, foreign leaders and internationalists have praised the efforts of  U.S. states and cities to combat climate change mitigation in accordance with the Agreement's goals. These leaders are responding to what I will call the outer face of foreign affairs federalism—the direct international engagement undertaken by U.S. states and cities. This outer face has gained visibility in recent years, spurred on not only by the exigencies of climate but also by developments in legal practice. Less noticed internationally but of great practical importance is the inner face of foreign affairs federalism—the ways in which U.S. states and cities interact with the federal government. In this contribution, I first describe these two faces of foreign affairs federalism as they relate to climate and then suggest some ways in which foreign leaders and internationalists could expand the outer face and respond to the inner face.

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2 My focus here is on how state and local governments interact with other governments rather than on the underlying substance—the body—of what they are doing or not doing in terms of climate change mitigation and adaptation. The interactions and the underlying substance are of course closely connected. Cf. J.B. Ruhl & James Salzman, Climate Change, Dead Zones, and Massive Problems in the Administrative State: A Guide for Whittling Away, 98 Calif. L. Rev. 59, 103-06 (2010) (remarking on the “overlapping federal and state (and, through states, local) jurisdictions” engaged in dealing with climate issues and noting benefits that can flow from this pluralist structure).

3 “We Are Still In” Declaration (initially released June 5, 2017) (including some states, several tribes, and many cities and counties among its signatories, as well as many leading businesses). In this contribution, I do not discuss the role of business and focus on states and cities without separately discussing counties or Indian tribes.

5 Jean Galbraith, Cooperative and Uncooperative Foreign Affairs Federalism, 130 Harv. L. Rev. 2131, 2149 (2017) (describing these and other aspects of California's efforts).

7 Id. at 1735-37.

8 See The Climate Group, Under2 Coalition (including among its signatories twelve U.S. states and several cities, as well as subnational governments around the world and some nations that have “endorsed” it). This use of soft law also reduces the risk of unconstitutional behavior under the Compact Clause. See Duncan B. Hollis, Unpacking the Compact Clause, 88 Tex. L. Rev. 741, 743-44 (2010) (noting that nonbinding commitments are less likely to trigger constitutional concern than binding ones, although questioning the appropriateness of this distinction).

10 See generally Galbraith, supra note 5.

11 Sonya Angelica Diehn, California's Jerry Brown on How to Beat Trump on Climate Change, Deutsche Welle at USA Today (Nov. 13, 2017).

12 Metropolis World Ass'n of Major Metropolises, Position Paper Submitted as a Contribution to the United Nations Global Compact for Safe, Orderly and Regular Migration, and to the Global Compact on Refugees 5 (Dec. 12, 2017) (on file with author); see also Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 311 (2018) (providing additional details).

13 State of West Virginia et al. v. Environmental Protection Agency, Case No. 15-1363, Complaint (U.S. Court of Appeals for the District of Columbia Circuit, 2015).

14 Juliet Eilperin, EPA's Pruitt Signs Proposed Rule to Unravel Clean Power Plan, Wash. Post (Oct. 10, 2017).

15 Brady Dennis, Scott Pruitt, Longtime Adversary of EPA, Confirmed to Lead the Agency, Wash. Post (Feb. 17, 2017).

16 William Petroski, Iowa AG Miller Opposes Trump Administration's Repeal of Clean Power Plan, Des Moines Register (Apr. 27, 2018) (noting that a coalition of nineteen states, one county, and the District of Columbia joined in objecting to the repeal).

18 Nat'l Conference of State Legislatures, Climate Change: State Policy Update 2012–2014 (May 1, 2014) (listing legislation).

19 Hiroko Tabuchi, Quietly, Trump Officials and California Seek a Deal on Car Emissions, N.Y. Times (Apr. 5, 2018).

20 Cary Coglianese & Shana Starobin, After a Federal Climate Policy Retreat, States Should Proceed with Caution, The Regulatory Review (Feb. 22, 2018).

21 For an interesting series of exchange on this subject, see Series of Essays on State and Local Regulation of Climate Change, The Regulatory Review (posting five essays published between September 2017 and February 2018, three by academics Cary Coglianese and Shana Starobin and two by practitioners Craig Segall and David Hults (both involved in California's regulatory program)).

22 Office of the Texas Governor, Press Release, Governor Abbott Meets with Mexican President Enrique Peña Nieto (Feb. 22, 2016).

23 Max Greenwood, EU Weighs Tariffs on Bourbon, Blue Jeans, Harley-Davidson, The Hill (Mar. 2, 2018).

24 Barbara Grijalva, Mexico Issues Travel Alert for Arizona, Tucson News Now (Apr. 2010). For a detailed discussion of targeted pressure, including examples of past usage, see Peter J. Spiro, Globalization and the (Foreign Affairs) Constitution, 63 Ohio St. L.J. 649, 691-93 (2002).

25 Cf. Spiro, supra note 24, at 692 & n.170 (describing the United Kingdom's use of targeted retaliation through the withholding of tax incentives to U.S. companies based in states with certain tax practices).

26 See generally Medellín v. Texas, 552 U.S. 491 (2008).

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  • EISSN: 2398-7723
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