IS THERE ROOM FOR FEDERALISM IN A CLIMATE CHANGE ACCORD?

By Eric Wind, 15
The second class of powers lodged in the general government consist of those which regulate the intercourse with foreign nations, to wit: to make treaties; to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; to regulate foreign commerce . . . - The Federalist No. 42 (James Madison)

A Special Thanks and Send-off to our 3Ls:

When the United States backed out of signing the Kyoto Accord, as a curious punk, I asked my State House of Representatives delegate to put Kyoto on the floor so my state at least could be a signatory. I was quickly told to go away; states in our union cant sign treaties with foreign entities. While the federal government is the sole possessor of Madisons second class of powers those involving matters of Statehow do we as a society conclude that climate change is such a Thank you to our ELS matter of state? Should domestically implemented restrictions enacted after a treaty that touch on President, Megan the daily lives of every American be preempted by the Treaty Power? MacGillivray for all your If the U.S. should agree to binding carbon reduction targets in Paris in 2015, how would the hard work and federal government meet these goals? I doubt even the most liberal US delegation would sign a self-effectuating treaty (one that legally commits us to a higher authority), so we would likely see a leadership over the treaty that would need domestic implementation legislation. This legislation may permissively years. delegate the duties to the states in the same way that Obamacare gave states the option to meet the minimum standards on their own with financial incentives or force the federal government to And to Keith Richard for step in and manage the exchanges from Washington. Implementation is therefore the crux of how all of your contributions climate change fits into the awkward gap between matters of state and domestic legislation. To serve as an example, renewable energy policy has gone forward since Kyotos repudiation to ELS, including Counder an academically-titled model of Laboratory Federalism. See Jeremiah Williamson & Editing this Spring 2014 Matthias Sayer, Federalism in Renewable Energy Policy, 27 Nat. Resources & Envt, Summer Edition of the ELS 2012, at 19. In basic terms, this is where states have taken the initiative to experiment with policy newsletter. and see what works to encourage energy policies that might be in line with Kyoto-style emissions goals. Every state has tried to implement some kind of renewable energy development strategy. Why not preemptively bring the various states to the negotiation table in Paris? It may be a We wish you the best libertarians dream to say that the federal government lacks the constitutional power to enact of luck out there! treaties which touch on individual rights that Congress could not otherwise legislate. Cf. Bond v. U.S., 133 S. Ct. 978 (2013) (mem.) (granting certiorari). But unless the federal government thinks it can implement such a massive treaty without cooperation from the states, the states and their varied opinions should all be involved in this negotiation, with Laboratory Federalism as a guide. Instead of relegating the states to being preempted players, involve them as stakeholders. This could at least lend grassroots support to a worthy environmental cause.

ELS EXECUTIVE BOARD 2013-2014:

PRESIDENT: MEGAN MACGILLIVRAY 14 VICE-PRESIDENT: JESS BARDI 15 TREASURER: SHAUN DECKER 15 SECRETARY/ COMMUNICATIONS DIRECTOR: JUSTINE ONEIL 15 NEWSLETTER EDITOR-IN-CHIEF: SARAH HUNSUCKER 15 FACULTY ADVISOR: PETER MANUS

ILL HAVE THE (DOG)FISH AND CHIPS, PLEASE.

By Allison Finnell, 14

Once upon a time in the colonial waters of New England, there was so much cod you could literally walk across the ocean on their backs. Ok, maybe not literally, but U.S. fishermen have been hauling in bountiful catches of Atlantic cod since the early 17th century. It is, after all, how our most beloved summer vacation spot got its name in 1602. But what was once the most lucrative trading item on the market in the days of yore is now overexploited beyond repair. Today we find ourselves in the midst of a fisheries crisis and a fishermans nightmare. The cod stocks in the Atlantic have collapsed, and we have our own over-indulgence to blame. According to a recent NOAA report, U.S. commercial fishermen landed 9.6 billion pounds of seafood in 2012. Overall, Americans ate 4.5 billion pounds of seafood that same year. To break it down further, in 2012 the average American ate 14.4 pounds of fish. Despite a large domestic haul, over 90% of that seafood is imported from other countries. Truth be told, if you see cod on a local menu, its almost certainly imported from Iceland. In ranking U.S. commercial fishing ports, New Bedford, Massachusetts came in with the highest valued catch for the thirteenth year in a row at $411 million. Among the top five states by landings value, Massachusetts came in second with $618.2 million, topped only by Alaska at $1.7 billion. Fishing in New England is a way of life; yet despite these monetary statistics, family businesses that have been around for generations struggle to survive. Long gone are the days when cod fishing made Gloucester the busiest fishing port in the world. In 2013, the quotas for cod in the Gulf of Maine and Georges Bank were cut by 80% and 61%, respectively. While the regulations understandably angered many local fishermen, cod stocks are depleted to the point they often can't even meet the quotas. NOAA Fisheries and the New England Fishery Management Council are doing everything in their power to allow the cod population to rebuild. The future remains uncertain. Luckily, there is some light at the end of the tunnel for local fisherman. Just last year, the federal government declared a fisheries disaster and passed a bill providing $75 million in disaster relief, $33 million of which will soon reach New England coastal states. With cod virtually unavailable, New England restaurateurs must be creative with their menus and executive chefs have had to turn to more sustainable and little-used fish to keep local seafood in-house. But as you would expect, consumers are quick to turn their noses up at the unfamiliarmore so when they encounter (the unfortunately nicknamed) trash fish species of New England ground fish. Once a bothersome bycatch, local fish like skate, monkfish, and dogfish may finally get their time in the spotlight.

BOOM BY TONY HORWITZ | A BOOK REVIEW BY KEITH RICHARD, '14

The proposed Keystone XL pipeline has been called everything from an energy godsend to a symbol of Armageddon. Whats really going on? In BOOM: Oil, Money, Cowboys, Strippers, and the Energy Rush That Could Change America Forever. A Long, Strange Journey Along the Keystone XL Pipeline, Tony Horwitz tells a tale of once-sleepy villages transformed into bizarre masculine pleasure resorts by swarms of oil industry workers with an appetite for bars, steakhouses, and strip clubs. Workers commute from as far as Newfoundland for $100,000-plus salaries working the oil fields, driving rents up to prices you'd expect in New York City, not Glasgow, Montana. The cause of all this madness? Oil. Horwitz sets out to investigate the proposed path of the Keystone XL, a project that would open the floodgates to American markets and kick domestic consumption into high gear. The pipeline is poised to transport Alberta tar sandsderived crude oil to Texas refineries to the tune of 1.3 million barrels per day. The Obama administration still hasn't reached a final decision on the permits to construct the XL. Many environmentalists have pushed all their chips on the issue. Even the Sierra Club got arrested over it- understandably so. Tar sands represent a big step backwards on climate policy. Extracting oil from the tar sands is extraordinarily energy-intensive, and it takes a whole two tons of sand to produce one single barrel of oil.
Image From: http://www.tonyhorwitz.com/

In the strip mined-fields of Alberta, Horwitz quickly learns to refer to the thick bitumen as oil sands rather than tar sands (using the T-word would have been a quick way to get tarred-and-feathered as a stark raving environmentalist). Talk about a spade cast in a not-so-different shade. However described, there arent words for the images (seriously, Google these places). The industry refers to the tar sands fields as the area being disturbed. Disturbing indeed. During a visit, Neil Young compared the land to Hiroshima. Anyone who's been following the Keystone XL controversy probably won't learn anything new about the pipeline. What makes Boom worth reading are the many and varied personalities. From troubled housewives, to oil-greased soldiers of fortune, to middle school girls masterfully delivering corporate talking points in mock debates, Horwitz vividly portrays a complex controversy through the eyes of those affected. Opposition to the pipeline has made for unusual bedfellows, like the Cowboy-Indian Alliance, which has calloused-hand rugged ranchers building tepees and performing cleansing rituals with Native Americans. One of the most divisive issues is siting. TransCanada has threatened to invoke eminent domain against those who refuse to grant easements. You get the sense that many conservative people of the plains arent too concerned about the broader energy debate. These folks scratch their head at environmentalists from the coasts who decry the XL- its not their land on the line. The politics are more complicated. There are scenes in Boom where lifelong Republicans wonder aloud if their opposition to the pipeline has transformed them into liberals, a label one local described as a hanging offense in these parts. I admire Horwitz's attempt to tell a dark story with optimism. Amid all the fossil fuel chaos, he took a brief detour to talk to some guys putting up wind turbines. Some ranchers on the Keystone route have even put up solar panels in acts of protest. Still, clean energy is the exception. Basic economics has led us to resort to tar sands. Theres a demand for oil, the price is right, and so long as we need our fix, somebodys going to supply it. At a recent Boston Bar Association talk, one of the key takeaways was that these tar sands-derived fuels are unfortunately likely to find their way to market somewhere, somehow. Much of the infrastructure is already in place, and tar sands already enter U.S. markets by rail. Keystone XL is just a means of making it easier. What can be done? The Conservation Law Foundation and Natural Resources Defense Council have called on Massachusetts to block gasoline and other products derived from tar sands. The groups believe these fuels would completely eviscerate the region's carbon reduction progress. It's true that if we're serious about taking climate change action, we simply can't do so while embracing tar sands, which are 15-20% more carbon intensive than traditional fuel. Lets hope the Obama administration makes the right choice.