Why I May Very Well Be Wrong About Nebraska v. Colorado

Reader Chris Lindsey responds in the comments to the NE v. CO post I wrote yesterday.  It's worth setting out here in full:

    First of all, I would argue that while pollution clearly creates victims (innocent citizens who have to breathe unhealthy air), the burden placed on law enforcement to enforce possession laws is not remotely similar to poisoning residents. Residents have to breathe. Taxpayers in Nebraska and Oklahoma do not have to pay law enforcement to pull people over, search their vehicles, seize property, charge them with criminal offenses, or arrest and jail them. Pollution and drug laws are both crimes, but one has a victim and the other does not.

    There is another issue, however, and it highlights a fundamental flaw in the logic of the petitioners’ claim. The federal government can set air quality standards, and it can criminalize marijuana possession, cultivation and distribution. But there is a significant difference between these two things. When it comes to marijuana-related activity, the petitioners’ most compelling argument is that CO can’t regulate. In effect, they are saying “we don’t like pollution coming from your state, and you shouldn't be able to regulate pollution-causing activities.”

    In order to avoid this absurdity, NE and OK have to go where few conservatives have gone before: they argue that the federal government should make Colorado criminalize certain types of behavior. I very seriously doubt this argument will carry the day, particularly in light of our federalist system and the fact the CSA specifically says Congress is not occupying the field. And if the AGs from these two states thought about it beyond their views on marijuana, I doubt very much they would support such a claim about federal authority over states. If those states are really concerned with “pollution” making it into their own state, they should lobby the CO legislature to beef up its regulatory system to control cross-border pollution, not argue the state shouldn't be able to regulate it at all.

I don't disagree with most of this.  My pollution example was merely to show that in-state activity can have an impact out of state that surrounding states might want to avoid.  And I wanted to draw the distinction between state X saying, (a) "We're not going to enforce any air quality laws," and (b) "we're going to create a scheme licensing violations of the air quality laws and make money off of it."  That strikes me as a distinction.  It's one thing for state X to say, "We're not going to enforce laws against owning machine guns," and another to say "For a whacking big upfront fee and a big extra tax on your sales, you can open your own Machine Guns R Us Emporium."  At least, that sounds like a distinction to me.  Remember that I'm not an expert in federalism, though.

I believe Chris is right that on the merits NE and OK will have difficulty showing the kind of harm necessary for standing, but right now we're just at the complaint stage.  And I agree that marijuana is a victimless crime.  But there's a whole lot of people who disagree with us about that last point.  They would argue that drugs cause even more harm than smog.  They're not stupid people, although I disagree with them.

I've said before that I hope NE and OK lose the suit, because I'm a believer in federalism.  (Actually, I'd probably support state X in my pollution hypothetical, given that some parts of the CAA are as bizarre as parts of the CSA.)  I just don't think the legal analysis is as simple as some are arguing.