After President Donald J. Trump announced the United States’s intention to withdraw from the Paris Climate Agreement, political leaders from cities and states across the United States announced their intention to keep to the goals of the agreement. California led the vanguard of this movement, entering into agreements to control global temperature increases with other subnational governments from around the world. In the context of the sudden change to U.S. foreign policy on climate change, though, California’s agreements became subject to possible dormant foreign affairs preemption.
This Comment analyzes dormant foreign affairs preemption issues with California’s climate agreements both under the precedents set by the U.S. Supreme Court and under those set by the Ninth Circuit. Part I lays out the background of the Paris Climate Agreement, California’s climate agreements, and the development of the Dormant Foreign Affairs Preemption Doctrine. Part II analyzes the foreign affairs preemption issues raised by California’s climate agreements. Part III discusses the doctrinal ambiguities illuminated by the analysis in Part II, and proposes modest changes to the doctrine that would resolve some of those ambiguities.