The Shifting Roles of the EU, the US and California
Edited by David Vogel and Johan Swinnen
Chapter 1: Legal Guidelines for Cooperation between the EU and American State Governments
Daniel Farber Neither California nor the EU is a traditional sovereign state. Their innovative efforts at collaboration must be structured to avoid legal and practical limitations on both sides that stem from California’s status as a subnational entity within a sovereign nation and the EU’s status as a supranational entity composed of sovereign nations.1 These limitations are the subject of this chapter.2 Fortunately, these limitations do leave considerable room for some forms of regulatory cooperation. As later discussed, in seeking to cooperate more fully with the EU, California may encounter a variety of constitutional barriers. For instance, California may not act in a manner inconsistent with federal law, even in furtherance of an otherwise desirable innovation. California may also be precluded from entering into certain kinds of agreements with the EU because doing so would invade the foreign policy prerogatives of the federal government.3 On the other hand, the EU’s ability to cooperate as a unified entity may also be limited, less because of formal restrictions to its regulatory jurisdiction than because of practical and legal limitations to its ability to secure compliance with its mandates.4 As one observer put it, ‘[a]t the same time that EU environmental laws are multiplying . . . implementation and enforcement of these laws [are] lagging’.5 The existence of these limitations has implications for policy design. California’s efforts pursuant to a cooperative agreement are on the strongest grounds when the following conditions are met: i) the action by California treats in-state and out-of-state firms even-handedly; ii)...
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