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Abstract

Considering the decision in Rocky Mtn. v. Corey and the EPA's actions in accordance with the President's Plan, this comment will outline best practices states can use in creating climate initiatives based on the challenges California faced in Rocky Mtn. v. Corey. Part II of this comment will analyze the reasoning in Rocky Mtn. v. Corey. Although certiorari was denied in the case, Part II will analyze recent Supreme Court dormant Commerce Clause jurisprudence to determine which cases are relevant to consider when analyzing a dormant Commerce Clause challenge to state based climate initiatives. Part III will discuss the current Federal Climate Action Plan and relevant provisions of the CAA, focusing on 111(d), and what states should consider when implementing climate initiatives to avoid constitutional challenges. Part IV will highlight New York State based climate initiatives as a case study. Like California's LCFS, the Regional Greenhouse Gas Initiative (“RGGI”) and New York's Renewable Portfolio Standard (hereinafter “NYS RPS”) faced scrutiny as to whether the regulations violate the dormant Commerce Clause. Part IV will also discuss how RGGI and the NYS RPS demonstrate how States can act locally and regionally applying best practices to create legally defensible climate initiatives.