This Note advocates judicial application of this tax analysis not only to tax environmental legislation, but also to regulatory environmental legislation. The theoretical justification for this thesis is provided by the economic concept of externalities. Externalities are elements used in the production of a marketed item without cost to the producer, but at a cost to others. The term "externality"stems from the fact that the use of the element of production is not included in the market price of the item. Undesirable environmental impact has been recognized as an externality -- a cost to those people adversely affected by it that is not reflected by the market price of the item. State legislation can respond to the externality of environmental impact in one of two ways: taxing the impact or prohibiting it. A tax directly internalizes the externality by raising the cost of bringing an item to market. This Note advances the theory that a prohibition accomplishes the same result of internalizing the externality of environmental impact; instead of adding the cost to the item as a tax, a prohibition forces a producer to alter internal methods of production to eliminate the impact. Both methods include the cost of the externality in the item's ultimate market price. The actual impacts of a prohibition and a tax do suggest some differing treatment. The difference, however, is one of degree rather than of inherent characteristics. Application of the tax analysis to both tax and regulatory state environmental legislation would reflect this fundamental similarity and avoid the inconsistency and confusion resulting from negative commerce clause analysis of regulatory legislation.
Douglas K. Stewart,
The Negative Commerce Clause and State Environmental Legislation-Externalities Suggest Application of the Tax Standard to Environmental Regulations,
32 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol32/iss4/3