In this Note, the author argues that, despite the strictures of the Foreign Commerce Clause, under an expansive conception of the market participant exemption, states should be able to place restrictions on the export of state-owned or state-nurtured natural resources. In light of the current trade imbalance between Japan and the United States and by way of example, the author discusses Japan's importation of United States natural resources and the competing interests that argue for and against its continuance. Japan's economic growth, appetite for natural resources, and lack of adequate regard for environmental consequences is well documented. Economists and political scientists have posited that the inherent structural incompatibilities between the United States and Japanese approaches to international trade strongly suggest that Japan's trade surplus with the United States will not decrease. This trade imbalance has created economic and political pressures to export United States natural resources to Japan. At the state level, however, a combination of economic and environmental motives have driven some states to consider legislation that would prohibit the export of natural resources.
The author examines the foreign prong of the Commerce Clause, which prohibits state legislation restricting the export of natural resources. Recent Commerce Clause decisions have indicated that a theoretical basis exists for validating state legislation which restricts the export of state-owned or state-nurtured natural resources. The author discusses Maine v. Taylor, which signals a growing judicial solicitude for state regulation of interstate commerce that promotes environmental considerations. Applied to the Foreign Commerce Clause, Maine v. Taylor and the line of market participant exemption cases suggest that states validly could enact environmentally motivated restrictions on the initial distribution of state-owned natural resources. The author argues, in the case of state-owned natural resources, that for reasons of public policy the market participant exemption should be expansively interpreted to include not only state-owned natural resources, but also those natural resources that pervasive state regulation and management facilitate or nurture.
David E. Dreijke,
The Foreign Commerce Clause and the Market Participant Exemption,
25 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol25/iss2/6