Conventional Wisdom, De-emption, and Uncooperative Federalism in International Environmental Agreements

What powers do the several states of the United States have individually to enter into environmental agreements with other sovereign nations? In this article, the author reviews the powers that states may have generally and then specifically regarding environmental agreements. Several traditional tools of analysis have historically been used including the constitutional doctrine of pre-emption, cooperative federalism and the foreign affairs doctrine. Some newer tools of analysis are also offered including the revival of the treaty-compact and the author’s own concept of “deemption.” The United States Senate’s explicit refusal to ratify the Kyoto Protocol, coupled with the consequent state initiatives to control greenhouse gases—especially the documents concluded between New Jersey and the Netherlands, provide rich examples of these tools in contemporary action. * Assistant Professor of Law and Director of International Programs, Duquesne University School of Law, 600 Locust Street, Pittsburgh, Pennsylvania, 15282 USA, telephone +1 412 396 1047, facsimile +1 412 396 4014, e-mail junker@duq.edu. The author would like to thank Dean Nicholas P. Cafardi for his generous writing stipend to support the research and writing of this article, Donald A. Brown of the Pennsylvania Consortium for Interdisciplinary Environmental Policy and Pennsylvania Department of Environmental Protection for his original ideas regarding states’ exercise of international powers in environmental regulation, Prof. Dr. Peter Tettinger of the University of Cologne, Germany, Faculty of Law for his comments both on federalism and environmental regulation, Professors Ken Gormley and Bruce Ledewitz of Duquesne University School of Law for their comments on drafts of the article, Michael J. Heilman, Counsel to the Pennsylvania Department of Environmental Protection for his practical insights, Robert Carpenter and Mary Beth Brenner, currently of the New Jersey Department of Environmental Protection for their willing correspondence, Robert C. Shinn, former Commissioner of the New Jersey Department of Environmental Protection for correspondence, Joni Capelli and Brenden Long of Duquesne University School of Law for essential research assistance, and The Open University, Milton Keynes, U.K. for the use of library facilities and technical support in the preparation of the manuscript. 1 Robert C. Shinn, Jr. and Matthew Polsky, The New Jersey Department of Environmental Protection’s Non-Traditional Role in Promoting Sustainable Development Internationally, 3 SETON HALL J. DIPL. INT. REL. 93, 103 (2002). Volume 2, Issue 1 Loyola University Chicago International Law Review 93 International Environmental Agreements Introduction—A Brief Review of Conventional Wisdom on State Treaty Powers As conventional wisdom would have it, the several states of the United States of America have agreed that in constituting the sovereign United States, the several states would refrain from individually entering into treaties with foreign nations. Treaty power is a federal power. Article II, sec. 2 (2) of the United States’ Constitution confers the treaty power on the President and the Senate,2 and Article I, sec. 10 (1) prohibits states from “entering into any Treaty, Alliance or Confederation.”3 At first blush, one might conclude that this statement of the law is clear and exclusive, but the history of unchallenged state actions, as well as American court decisions in challenged state actions, have shown otherwise.4 The states and the courts in these actions and decisions have noted that neither Article I nor Article II declares that states have no foreign relations role to play, nor that they have no power to do so, as Edward T. Swaine and David R. Hodas have thoroughly catalogued this.5 In reflection of this, recent years’ scholarship has witnessed a progression from reviews of federalism and states’ rights generally regarding treaty-making powers6 to those specifically regarding such issues as state procurement7 and environmental agreements with foreign powers.8 The various types of agreements entered into by the several states with foreign countries has been most thoroughly catalogued by Edward T. Swaine.9 Swaine’s work covers a diverse and extensive range of areas but only touches lightly upon the natural environment. David R. Hodas extends the catalogue more recently to include the natural environment.10 The recent interest in environmental agreements has blossomed largely, but not exclusively, in response to the United States Senate’s explicit refusal to ratify the Kyoto Protocol.11 The Senate and the Bush Administration have taken the position that the environmental benefits to be gained from the Kyoto Protocol do not outweigh the economic advantages for the United States to remain outside of its requirements.12 Swaine reminds us that although the United States Constitution prohibits states from entering into any treaty, alliance, or confederation, states may, with the 2 U.S. CONST. art. II, § 2, cl. 2. 3 U.S. CONST. art. I, § 10. 4 Edward T. Swaine, Negotiating Federalism: State Bargaining and the Dormant Treaty Power, 49 DUKE L.J. 1127 (2000) [hereinafter Swaine, Negotiating Federalism]. 5 Id. (providing a thorough catalogue of these decisions); Edward T. Swaine, Does Federalism Constrain the Treaty Power? 103 COLUM. L. REV. 403 (2003) [hereinafter Swaine, Does Federalism]; David R. Hodas, State Law Responses to Global Warming: Is It Constitutional to Think Globally and Act Locally? 21 PACE ENVTL. L. REV. 53, 81 (2003). 6 Swaine, Negotiating Federalism, supra note 5; Swaine, Does Federalism, supra note 6. 7 Robert J. Delahunty, Federalism beyond the Water’s Edge: State Procurement Sanctions and Foreign Affairs, 37 STAN. J. INT’L L. 1 (2001). 8 Hodas, supra note 6. 9 Swaine, Negotiating Federalism, supra note 4. 10 Hodas, supra note 6. 11 S. Res. 98, 105th Cong., 143 CONG. REC. 8113 (enacted). 12 Id. 94 Loyola University Chicago International Law Review Volume 2, Issue 1 International Environmental Agreements permission of Congress, enter into an “Agreement or Compact” with a foreign government.13 If we rely upon the intentions of the Constitutional authors (usually known by the phrase “framers’ intent”), the distinction between the permissible agreement, compact, the prohibited treaty, alliance, or confederation may be impossible to determine due to a lack of documentation in the records from the Constitutional Convention.14 Recent sources assume that states may enter into foreign compacts prior to seeking consent from Congress, and may even conclude binding agreements without ever obtaining federal approval.15 Louis Henkin punctuates this point when he notes that “no agreement between a state and a foreign power has been successfully challenged on the ground that it is a treaty which the state was forbidden to make.”16 Furthermore, “not only does international law require federal states to interpret their constitutions so as to permit adhering to treaties, but the new federalism doctrines show a sensitivity toward preserving adequate means to pursue national and international ends like the treaty power, especially where those means turn on state consent.”17 In the following article, I briefly review and combine the work of Swaine and Hodas, and discuss the recent groundswell of states’ agreements with foreign countries. In addition to the interpretations that are largely presented in cases, Swaine and Hodas have each offered new ideas on pre-emption and the dormant treaty power, and I now add a new principle with which to analyze co-operative federalism that I call “de-emption.”18 Tools of States’ Treaty Powers Analysis: Conventional Tools 1. Cooperative Federalism and States’ Rights Federal-state relations in the regulation of the environment have been as much a product of politics as of law and have generally yielded a functional, rather than a precisely legal working relationship known as “cooperative federalism.” Cooperative federalism in environmental regulation is a term used to describe the political co-operation necessary between the federal government and state governments to execute the mandate of federal environmental statutes and regulations by state enforcement agencies through federal and state statutes and regu13 U.S. CONST. art. I § 10, cl. 3. 14 Swaine, Negotiating Federalism, supra note 5, at 1194, citing United States Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452, 459-63 & n.12: “The records of the Constitutional Convention. . . are barren of any clue as to the precise contours of the agreements and compacts governed by the Compact Clause.”). This provides a good example of why intentionality is dismissed as a mode of interpretation by philosophers and psychologists, and why an author’s intent is not privileged by literary experts. See Kirk W. Junker, Reading Attitude in the Constitutional Wish, S. CAL. INTERDISC. L. J. (forthcoming Winter, 2005). 15 Swaine, Negotiating Federalism, supra note 5, at n.337. 16 LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION (2d ed. 1996). 17 Swaine, Does Federalism, supra note 5, at 403. 18 Regarding the need and appropriate use of neologisms see Kirk W. Junker, De-diction, 34 FU-