Ahh, the famous Commerce Clause of the U.S. Constitution (i.e., Article 1, Section 8). What doesn't it cover? According to U.S. District Judge Lawrence O'Neill, it covers the Low Carbon Fuel Standard (LCFS) rules put out by the California Air Resources Board (CARB) about the levels of carbon allowed in transportation fuel. CARB had issued a rule that, by 2020, the carbon footprint of gas and diesel fuel has to be reduced by 10 percent compared to 1990 levels. Sounds good, right? And it's in line with CARB's other carbon reduction efforts.

The problem, according to O'Neill's decision, is that the rule discriminates against some biofuels made outside California and crude oil. Um, isn't that kind of the entire point? To "discriminate" against these fuels in favor of fuels with lower carbon content? Nonetheless, the rule's "bias" is enough for some to label it "extreme," but we say it's going to take strong measures to reduce the amount of carbon we put into the atmosphere. CARB chair Mary Nichols recently called the LCFS "essential" and, back in 2007, then-candidate Barack Obama suggested taking California's LCFS (in the form they were proposed at the time) nationwide. O'Neill's decision is being called a "victory for refiners and ethanol producers."

What's kind of strange is that the decision does not technically invalidate the rules, just CARB's power to punish anyone who goes over the carbon limits. CARB plans to go back to court next week to get clarification and also to appeal to the Ninth Circuit Court.


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  • 41 Comments
      Marco Polo
      • 3 Years Ago
      I am not a citizen of the US. So normally refrain from comment on US law. However, in my youth, I studied the US Constitution in order to gain admittance to represent clients within the US jurisdiction. From my reading of the U.S. Constitution - Article 1 Section 8, I fail to see where U.S. District Judge Lawrence O'Neill, finds the basis for his judgement. The article only makes two relevant mentions of Congressional power to regulate commerce between the states. A) " all Duties, Imposts and Excises shall be uniform throughout the United States" B) "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" How can either of these clauses be interpreted to prevent Californian regulations, pertaining solely to California? The argument that this may disadvantage some persons doing business in California because of the economic factors of catering separately to a local market, was clearly not in the legislatures intention. The Judge would be on more solid ground with: Section 10 Clause 2: "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. " Ok, I am joking, but it seems to me, the concept that CARB is in some way unconstitutional, is without foundation, considering the remedy is so simple! Congress has the constitutional power to overturn CARB's rulings, the fact that Congress has no desire to do so, must satisfy the terms of Article 1 Section 8 .
        EZEE
        • 3 Years Ago
        @Marco Polo
        The commerce clause is one of those living and breathing things (I typed this once, but it didn't post, trying again). I reference once case below. In another, congress tried to restrict guns, saying that guns cause higher insurance costs, which in turn affects interstate commerce. That logic was actually thrown out. Everyone here will use this as an excuse to bash conservatives, however, interpretation of the commerce clause is near and dear to the left, as it gives nearly universal power over our lives. And before people scream, here again is the wheat case: Wickard v. Filburn. Mr. Filburn was a small farmer in Ohio. The Department of Agriculture had set production quotas. Mr. Filburn harvested nearly 12 acres of wheat above his government allotment. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. He was fined anyway. The Court reasoned that had he not grown the extra wheat he would have had to purchase wheat; therefore, he was indirectly affecting interstate commerce.
          Marco Polo
          • 3 Years Ago
          @EZEE
          @Ezee It would seem that the current US Supreme Court is very activist about states rights. Brzonkala, is an interesting case. She certainly seemed to get a tough deal, still once the State Grand Jury rejected the case, it's difficult to see where 'due process' had failed. (I mean, the defendants also must receive a measure of 'due process')
          EZEE
          • 3 Years Ago
          @EZEE
          That is what was interesting about the gun case. Opposed to an interpretation of the 2nd amendment, they decided to hang their hats on the commerce clause. Initially, it worked, but was struck down later. I looked up some cases on the commerce clause and found this, regarding rape case ruling: Two constitutional arguments were used by defenders: first, that violence against women interferes with interstate trade and thus violates the Commerce Clause by which Congress may regulate interstate commerce to ensure the free flow of goods and services, and second, that the Fourteenth Amendment protects citizens against violation of due process, which occurred in Brzonkala’s case because the state courts were indifferent to violence against women. Both parts of the Constitution had also been used to support the act during lengthy congressional hearings.
          Marco Polo
          • 3 Years Ago
          @EZEE
          @ Ezee To non- American the US Supreme Courts interpretation of the 'Right to bear arms' seems as logical as if the Supreme Court was giving those rights to Bears! The 'within a well ordered militia' bit seems to be forgotten. As a result, the gun, especially the hand gun, has become deeply embedded in US culture, to the detriment of US society. It's hard to believe that the founding fathers believed that every psychotic yo-yo, should have the right to purchase a high powered automatic assault weapon! But the several Supreme Court rulings mean that Gun control will take an amendment to the US constitution.
      Dan Frederiksen
      • 3 Years Ago
      the right to unlimited pollution. ahhh USA. Mary Nichols, rather than singularly relying on trying to regulate evil man you should start a small production of a superior car. not something thoughtless like tesla or fisker. a car built in efficiency and intelligence. not only can it change the world but it could become hugely profitable for california. it could be a reference design that anyone can produce. and there is big potential for a much superior product than detroit is offering. you can think of an EV1 with lithium batteries and faster acceleration than a porsche 911 while still being affordable to all. I assure you I know what I'm talking about. just the mere mention of such intent might well make evil man fall in line but don't settle for weak incrementalism. hit those bastards hard. wrath of God hard. the fate of the world depends on it. really.
        TruthHertz
        • 3 Years Ago
        @Dan Frederiksen
        Dan we really need to talk about carbon emissions. If you were in better shape, you wouldn't breath as hard when your balls are bouncing against some fellow gay dudes buttocks. You get downrated on a green car forum and you are a greentard, that's pretty sad.
          EZEE
          • 3 Years Ago
          @TruthHertz
          O.O What has been visualized cannot be unvisualized.
          Marco Polo
          • 3 Years Ago
          @TruthHertz
          TruthHertz It evident that you are are fairly newly exposed to to the rantings of this ubertroll. However, he thrives on derision and delights in being obnoxious. In the end, most just ignore his utterances (sadly he takes this acceptance). It's really just best to ignore him, and join in the debates with the more intelligent contributors to ABG.
        miles
        • 3 Years Ago
        @Dan Frederiksen
        Dan, you should build this car you describe! It would be totally awesome!
      • 3 Years Ago
      Gotta admit that I don't like the federal government telling California that it can't apply more stringent standards on the source of the awful smog in the LA basin. That said, California abuses the grandfathered right of CARB regulations to force nationwide adoption of policies that other states don't need. North Dakota doesn't have a smog problem, so they shouldn't have to bear the burden of amortizing California's specialized vehicle costs. The auto companies are now developing the vehicles California desires, not due to regulations, but due to national interests. The regulations merely help them make technology decisions which keep all automakers within the same competitive range.
        PR
        • 3 Years Ago
        Jason -- How do you think California is FORCING nationwide adoption of CARB policies? No such legal power exists. 17 States have chosen to adopt CARB regulation, but they aren't forced to, they did it by choice. The only "forcing" I can see, is non-CARB states forcing their emissions down the throats of down-wind states who have chosen to adopt CARB regulations. If you don't think North Dakota has an air quality problem, just wait for a few years of your new oil pumping business to change that -- just like neighboring Wyoming: "[Wyoming] is faced with air-quality issues similar to Los Angeles and Denver is downright sad." http://www.denverpost.com/writersontherange/ci_9124970 "In Pinedale, Wyo., Residents Adjust to Air Pollution" http://www.nytimes.com/2011/03/10/us/10smog.html
          Mark Schaffer
          • 3 Years Ago
          @PR
          The way in which Pinedale Wyo. will adjust is their death statistics over time if air pollution is allowed to continue.
      howam00
      • 3 Years Ago
      I fully understand the legit argument between individual/state rights and federal rights but we need to have a consistent plan since this creates a lot of barriers and extra costs for major companies. I have a distinct feeling that even if the US standard was to opt for CARB's more stringent standards (my preference) the overall costs for a vehicle would likely go down or at least not rise as much as it is less overall R&D and less manufacturing systems to develop. Better yet would be for Europe and the US to have lock-step standards to lower costs all the way around and offer a greater number of products for consumers (dare I say win-win)
      Jim1961
      • 3 Years Ago
      Conservatives drone on and on about "states' rights" but they don't want to allow states the freedom to do anything that might protect the environment. That's effed up.
        Spec
        • 3 Years Ago
        @Jim1961
        Nor do they respect states rights when it comes to marijuana laws, doctor assisted suicide, food labeling, etc. It is a very hollow 'principle'.
          Actionable Mango
          • 3 Years Ago
          @Spec
          I would like to point out that there are heavy Fed crackdowns going on right now in medical marijuana states. The Obama administration is in in charge of the DoJ last I checked.
        EZEE
        • 3 Years Ago
        @Jim1961
        Sadly, under the interstate commerce clause, there are no rights. Food you grow on your own land for your own consumption can be regulated due to Wickard v. Filburn. Mr. Filburn was a small farmer in Ohio. The Department of Agriculture had set production quotas. Mr. Filburn harvested nearly 12 acres of wheat above his government allotment. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. He was fined anyway. The Court reasoned that had he not grown the extra wheat he would have had to purchase wheat; therefore, he was indirectly affecting interstate commerce Trust me on this, the left would have much more to lose if we stopped interpreting the commerce clause, than those on the right. I would trade off all of the abuses of that clause at once. Remember, it is a living and breathing document (as the left says). That translates to, 'we see in it what we want.' Can you find social security, welfare, regulations on growing food on your land for your use in the constitution?
        EZEE
        • 3 Years Ago
        @Jim1961
        Question... Does this mean you guys now support states rights? If so, jump to smaller government and less regulation and I will jump to your side so quickly I will knock you down. How about states being able to opt out of social security? Just curious...
        2 Wheeled Menace
        • 3 Years Ago
        @Jim1961
        Neither of the 2 major parties have principles.... just corporate masters to serve.
      Dallas May
      • 3 Years Ago
      Gotta love them conservatives. State's Rights First! Unless another state chooses something that hurts my business. Then Federal Mandates!
        TruthHertz
        • 3 Years Ago
        @Dallas May
        Republicans ARE for state rights. The only time they aren't is when it affects ALL the other states. In this case, it would cause the regulation of a special type of fuel for a single state when we are currently limited in our refining capacity. A better idea would be to fund the advancement of such fuels and try to have them rolled out on a national level if the cost is kept in check with current fuel prices. In contrast, by having carb, if a manufacturer wants to sell cars in California, they have to be carb compliant. There is nothing limiting the manufacturer from making some power and potentially fuel efficiency robbing changes so that they can pass the said emissions. There is no limited capacity with cars.
        Marco Polo
        • 3 Years Ago
        @Dallas May
        To which Ezee would reply, Only got two Democrat words: Robert Citron !
        EZEE
        • 3 Years Ago
        @Dallas May
        Gotta love those liberals, against states rights until...oh wait...
      PR
      • 3 Years Ago
      Talk about extreme "Legislation from the Bench" and "Activist Judges"!! If this same legal standard were to be applied to ALL state regulations, then this ruling effectively overturns centuries of State legislation. If this ruling isn't overturned, the legal standard would become that if any company did anything different in any other state, each individual state's regulation would be "unconstitutional". This effectively COMPLETELY ELIMINATES States' Rights to legislate. This effectively says that the only legislation that can impact businesses is federal legislation. Because if any business can do "X" in ANY other state, no other state could legislate against it. This is destined for quick overturn by the Ninth. This judge is having a good joke and a laugh, and knows this is DOA.
        EZEE
        • 3 Years Ago
        @PR
        Yay states rights ! Somehow I wonder if this only applies to states that want more regulation, opposed to less...
        Marco Polo
        • 3 Years Ago
        @PR
        @PR Yet the founding fathers clearly felt that the regulation of 'commerce' should be a prerogative of the Federal government, and it's one of the strongest arguments of Unionism against Confederacy. But, although the US constitution granted this power to the Federal legislature, it clearly isn't mandatory. It leaves it up to the Feds to legislate against state regulations, when it deems appropriate. In this case no such federal legislation has been imposed. So where does the Judge draw his precedent? The constitutions of many federalised nations, Canada, Australia etc, contain very strong clauses guaranteeing free trade between the states, but the US constitution seems to allow discretion to the Federal legislature. Well, that's just my my interpretation on the issue.
      Ronald Wolf
      • 3 Years Ago
      Lawrence O'Neill - a Bush appointee. Why am I not surprised?
      • 3 Years Ago
      As I understand it, CARB says some imported oil and biofuel must buy emission credits due to it being transported longer distances. This would appear to violate the Commerce Clause because it makes something more expensive if imported than if produced within the state. CARB says the Clean Air Act allows them to ignore the Commerce Clause, a claim many might find ridiculous.
      Julius
      • 3 Years Ago
      Obviously, the question is what price was CARB planning on imposing for the carbon-credits involved in transportation? Would the price subsequently favor California-domestic oil drilling over something like Brazilian ethanol? (which might be a WTO violation, BTW) And unfortunately, an alt-fuel like ethanol is not conducive to lower-carbon methods of transport like pipelines. And if CARB was allowed to enforce these functional import tariffs, then the question is if other local governments could do the same against California-made products shipped to their States.
      Ford Future
      • 3 Years Ago
      ChaChing! Oil and Coal Money In Politics Pays Off! But, watch out US Agribusiness, you're being slowly strangled by Climate Change. US Drought Monitor http://droughtmonitor.unl.edu/ Worldwide Ground Water Depletion http://www.enn.com/ecosystems/article/43785 Seems to me US Farmers had better start Voting and Funding Liberals. It's Liberals that will save the American Farmer.
      harlanx6
      • 3 Years Ago
      Wow! A rare wisp of sanity in a state that is totally insane and bent on the destruction of it's economy. Would the last business to leave California please turn out the lights?
        mythicalprogrammer
        • 3 Years Ago
        @harlanx6
        Oh is that why Silicon Valley is thriving? Because companies are leaving? Let me look out of my office's window, oh wait! You're an idiot.
          Actionable Mango
          • 3 Years Ago
          @mythicalprogrammer
          Looking out the window at Silicon Valley is an anecdotal vision of something that is an outlier. The facts show that businesses are leaving California at record breaking levels. Every year breaks the record for the previous year. For example, five times as many businesses left California in 2011 as 2009. The top five destinations are reported as: Texas, Arizona, Colorado, and Nevada/Utah (tied).
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