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The states, the feds and climate change: Hope challenges to Paris beat back the doctrine of ‘implied preemption’

June 6, 2017

NY Daily News,

Eugene Kontorovich,

June 2, 2017-

In the wake of President Trump’s announcement that the United States will be withdrawing from the Paris Climate Accord, the governors of New York, California and Washington states have announced the formation of a United States Climate Alliance, which will pursue the policies of Paris through their own joint action. The effort by states to do what the national government will not has won praise from those concerned about the environment — but it raises federalism-related constitutional questions.

The states are on the right side of the issue, but they will face some difficult Supreme Court precedents. And ironically, the doctrines that limit the Alliance are ones that liberals, generally wary of state authority, have traditionally supported. All of which is why this would make it a opportune time for liberals to join conservatives in rethinking some jurisprudence that has unduly hampered state authority in areas of concurrent federal-state power.

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