Congress' Pet: Why the Clean Air Act’s Favoritism of California Is Unconstitutional under the Equal Footing Doctrine


The Clean Air Act gives two regulatory powers to one state – California – that it forbids to all others: the power to regulate fuels, and the power to regulate motor vehicle construction. This paper makes the novel argument that by creating a differential in power between the states, these provisions violate the equal footing doctrine, and are therefore unconstitutional. In doing so, it is the first law review article to provide a complete history of the doctrine, a foundational principle that pre-dates the Constitution and remains the law of the land today. Though the doctrine has been relegated to a bit part in modern jurisprudential debates, this article shows its vitality and power, and argues its re-emergence should begin with a rejection of the Clean Air Act’s California preferences.


Constitutional Law | Environmental Law

Date of this Version

March 2006