A Stitch in Haste

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
–Constitution, Article I, Section 10

I’m no expert, but how is this not an “agreement or compact”?

Nine northeastern U.S. states are working on a plan to cap and then reduce the level of greenhouse gas emissions from power plants, the first U.S. deal of its kind and one which would see the region breaking with President George W. Bush who refused to sign the Kyoto Protocol

The move comes as California, Washington and Oregon are considering a similar pact — a dynamic environmentalists say could pressure the federal government to adopt a national law. Bush refused to sign the Kyoto Protocol, the greenhouse gas reduction plan already adopted by over 150 countries.

Under the plan being worked on, New York, New Jersey, Connecticut, Delaware, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont would cap carbon dioxide emissions at 150 million tons a year — roughly equal to the average emissions in the highest three years between 2000 and 2004. Starting in 2015, the cap would be lowered, and emissions would be cut by 10 percent in 2020.

Each state legislature would have to approve the caps, said Dennis Schain, a spokesman for Connecticut’s Department of Environmental Protection.

I would certainly hope that each state legislature would have to approve the cap. But I ask again, how is this not an “agreement or compact” that would also require Congressional approval?

Like so many other limitations on government power in the Constitution, the Compact Clause got off to a good start but eventually was deemed too pesky and troublesome for the Supreme Court to take seriously:

The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships. It is not to be constructed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual States with a view to increasing harmony within the federalism created by the Constitution.

–New York v. O’Neill, 359 U.S. 1 (1959)

So now it’s not what the Constitution says — any agreement or compact — but just what the Court finds convenient — some agreements or compacts.

“Some” now seems to mean only those compacts that increase state power at the expense of federal power:

[A]pplication of the Compact Clause is limited to agreements that are “directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.”

–U.S. Steel v. Multistate Tax Comm’n, 434 U.S. 452 (1978) (internal citations omitted)

Okay, fine. I will ask a third time: How is the Regional Greenhouse Gas Initiative still not an “agreement or compact” that would require Congressional approval? The express purpose of RGGI is to circumvent federal policy regarding greenhouse gases. These nine states are essentially thumbing their collective nose at President Bush, and Congress, and invoking a “mini-Kyoto.” If the whole point of reducing carbon dioxide emissions is to account for the fact that “gases cross state lines,” then that only strengthens the argument that policy should be federal rather than regional. And if the state officials behind RGGI are confident that the agreement doesn’t encroach upon the federal sphere of influence, then what’s wrong with asking Congress to sign off on it, just to be sure?

We already have too much federal government, too much state government, and too much local government. Do we really need to add “too much regional government” as well?

I don’t know whether there are any parties with standing who intend to challenge RGGI on Compact Clause grounds. That might be for the best anyway. With this current Raich-Kelo, “too much government is never enough” Supreme Court, any further Compact Clause litigation might very well kill it off altogether.

Another one bites the dust…