Discrimination and the Low Carbon Fuel Standard: A Proposal for a Better Dormant Commerce Clause

摘要

Over the past few decades the dormant Commerce Clause has often been used to invalidate state environmental laws that discriminate against out-of-state actors. Now it threatens California's groundbreaking Low Carbon Fuel Standard program. This article uses the California case to demonstrate the dysfunction in current dormant Commerce Clause jurisprudence, and proposes that rather than invalidate virtually all discriminatory laws, the dormant Commerce Clause should invalidate only laws with a protectionist motive.