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Tuesday, December 01, 2015
Mellow Out, Chad!
Thanks, Howard, for allowing me — and my no-good sidekick, Chad DeVeaux — to guest “blawg” this month. It will be a welcome reprieve from grading.
Unlike my colleague, Chad, who has “chronically” explored weed and marijuana federalism, I am a mere “budding” scholar (although my jokes are better than his, at least this post). But recent events have “toked” my interest in this area as well. While you will see Chad and me disagreeing often this month, I do agree with him (and Dean Chemerinsky) that marijuana decriminalization presents “one of the most important federalism conflicts in a generation.” Chemerinsky, et al., 62 UCLA L. REV. at 77.
Last July, in Energy & Environmental Legal Institute v. Epel, 793 F.3d 1169, the Tenth Circuit held that the Constitution permits a State to directly regulate extraterritorial activities that produce substantial effects within the state. The court ironically upheld Colorado’s purported direct regulation of coal-fired electrical production in Nebraska (and other states), concluding that Supreme Court precedents positing that the dormant Commerce Clause “precludes the application of a state statute to commerce that takes place wholly outside the State’s borders, whether or not the commerce has effects within the state,” have withered and died from nonuse. This holding presents significant ramifications for the pending weed wars. What is good for the goose is good for the gander. If Colorado can regulate coal-burning in Nebraska because it produces substantial effects in Colorado, can’t Nebraska regulate at least some marijuana transactions in Colorado because such transactions have substantial effects in the Husker State?
Chad was too humble to mention this (that’s a first), but he and I are participating in a symposium proposal regarding this topic. The panel tentatively includes several scholars: Lea Brilmayer, Erwin Chemerinsky, Jack Chin, Katherine Florey, Seth Kreimer, Mark Rosen, Chad, and me. As Chad and I blog this month, we will keep you apprised of any developments on this front as well.
Posted by Jessica Berch on December 1, 2015 at 01:02 PM | Permalink
Comments
Thank you, Jeff, for your comments and clarification, and I look forward to reading your article (particularly because I'm keenly interested in animal welfare legislation myself).
Given the title of your article, my sense is we come out on the same side of this debate, even if we disagree on how to get there. The characteristics of the extraterritoriality cases (e.g., Brown-Forman) include price control and discrimination against out-of-staters. Colorado's mandate in Epel regulates the quality of the good sold (from Nebraska) in Colorado, but you're right that Colorado does not directly regulate price, which was the touchstone of unconstitutionality in the earlier cases. But what Epel did is extraordinarily helpful for my argument because Epel suggests that, unless there is direct regulation in the same manner as, e.g., Brown-Forman, there is in fact wiggle room for Nebraska (in the marijuana realm) or Colorado (in the energy one) to come up laws that protect them from the externalities created by neighboring states.
So, I think, there is room for Nebraska to pass laws -- not directly regulating marijuana in Colorado by, for example, setting prices -- but indirectly doing so. I am toying with what the best way to do this is, but I'm leaning toward a law modeled on dram shop liability, which has successfully been applied extraterritorially for decades now.
We may learn more soon. As I recall, there is a petition for cert in Epel.
Posted by: Jessica Berch | Dec 2, 2015 10:13:09 AM
While I agree that the marijuana issue raises extraterritoriality concerns, I think you are reading the Tenth Circuit case far too strongly. I don't read the court as saying that a state can directly regulate conduct in another state. Instead, the court rejects the application of the rule prohibiting extraterritorial regulation to a state law that indirectly has effects on out-of-state companies that produce electricity bound for in-state markets. As I explain in a recent article, I think this is fully consistent with the prohibition on direct extraterritorial regulation. See Making Sense of Extraterritoriality: Why California’s Progressive Global Warming and Animal Welfare Legislation does not Violate the Dormant Commerce Clause, 39 HARV. ENVTL. L. REV. 423 (2015).
In my opinion, if Nebraska passed a law regulating marijuana sales in Colorado, it would surely be unconstitutional. The best Nebraska can do is to regulate marijuana sales in Nebraska. Cases like Epel merely hold that such a regulation of sales in Nebraska would be constitutional even though it would have indirect effects on businesses in Colorado.
Posted by: Jeff Schmitt | Dec 2, 2015 9:20:31 AM
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