Dormant Commerce Clause Review: Why the Ninth Circuit Decision in Corey Strayed from Precedent and What the Supreme Court Could Have Done About It

Abstract

In 2007, the California state legislature enacted the Low-Carbon Fuel Standard, or LCFS, limiting carbon emissions from transport fuels throughout the fuels’ entire “lifecycle,” by assigning “carbon intensity” scores to each fuel product. These scores are calculated using a variety of measurements, including the amount of carbon emitted while producing the fuels and in transporting them to California. Out-of-state fuel suppliers challenged that the LCFS places an unconstitutional burden on interstate commerce because their products would inevitably have higher carbon intensity scores than their in-state counterparts, based merely on the distance traveled. The dispute reached the U.S. Court of Appeals for the Ninth Circuit in Rocky Mountain Farmers Union v. Corey. This Comment argues that although the Ninth Circuit correctly found the LCFS to be valid under the Dormant Commerce Clause, it erred in finding that the text of the LCFS’s was not facially discriminatory, which would have required the court to have applied strict scrutiny. This Comment further argues that the Supreme Court should have granted certiorari to provide a clear instruction on whether a Dormant Commerce Clause analysis could be performed relying solely on the state legislature’s purported reasoning, and without regard to the challenged law’s discriminatory text.