Gov. Schwarzenegger and Tony Blair are endeavoring to create a California and Great Britain global warming pact, to pool their efforts in lowering CO2 emissions:
British Prime Minister Tony Blair and California Governor Arnold Schwarzenegger plan to lay the groundwork for a new trans-Atlantic market in carbon dioxide emissions, The Associated Press has learned.Such a move could help California cut carbon dioxide and other heat-trapping gases scientists blame for warming the planet. President George W. Bush has rejected the idea of ordering such cuts.
Blair and Schwarzenegger were expected to announce their collaboration Monday afternoon in Los Angeles, according to documents provided by British government officials on condition of anonymity because the announcement was forthcoming.
The aim is to fix a price on carbon pollution, an unwanted byproduct of burning fossil fuels like coal, oil and gasoline. The idea is to set overall caps for carbon and reward businesses that find a profitable way to minimize their carbon emissions, thereby encouraging new, greener technologies.
I am not commenting on the wisdom or lack of wisdom of carbon-limiting strategies. Whether or not the people of CA should limit their carbon output is something that is under the discretion of the people of CA.
However, I am concerned that in negotiating with a foriegn nation, Gov. Schwarzenegger may be violating the Logan Act. The Logan Act (1799) was passed in response to when Dr. George Logan of Pennslyvania attempted to conduct negotiations with France without the approval of then President Adams.
It's text is as follows:
Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.
This section shall not abridge the right of a citizen to apply, himself or his agent, to any foreign government or the agents thereof for redress of any injury which he may have sustained from such government or any of its agents or subjects.
Basically, as I understand it, the Logan Act prevents those other than the President and his selected emissaries from conducting foriegn policy in the name of the US.
Whatever you think about the Bush Administration's global warming policy -- or lack thereof -- it isn't the privilege of just anyone to circumvent it. It is probably legal for CA to adopt whatever carbon limits they want -- I think that still falls under state powers, but I don't think they are allowed to negotiate them in common with other countries.
Are there any lawyers out there who can weigh in on this? Am I missing something?
In my web search about the Logan Act, I found this article by fellow ScienceBlogger Chris Mooney for Slate. He notes that no one has ever been prosecuted for violating the Logan Act, though it is often threatened:
Despite all this, Logan went unpunished, and it appears that no one has been convicted of a Logan Act violation. But sometimes the act is used for intimidation. During the 1984 presidential race, Ronald Reagan suggested that a trip Jesse Jackson had taken to Cuba could be legally actionable, citing the Logan Act as the "law of the land." The act has also been brandished against Henry Ford, Joseph McCarthy, Jane Fonda, and former Attorney General Ramsey Clark (for an enterprising trip to Iran). Again, no convictions.
None of which is to say that private citizens can get away with anything when visiting or interacting with foreign countries. They can't export or sell arms illegally, of course. And blabbing classified information is banned under the Espionage Act--a law, unlike the Logan Act, that people have gone to jail for violating.
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Schwarzenegger likey had his lawyers look into it. I guess that it would turn on whether this comes under the definition of: "[...] in relation to any disputes or controversies with the United States, or to defeat the measures of the United States". It doesn't seem so, and it is highly unlikely that anyone would make threatening noises over the Governer's actions even if they were within the scope of the Act.
The Logan act is a dead law, often cited when someone does something like this, but never actually used to prosecute anyone, ever.
Even so, this wouldn't apply because Schwarzenegger is negotiating with Blair on behalf of California, whereas Logan was essentially misrepresenting himself as a spokesman for the country.
It's too bad sometimes because it could rein in some serious jackassery. But, with a great deal of frequency, governors, mayors, and other elected officials travel to foreign countries to work out deals benefiting their specific state, city, etc., usually economic compacts and trade deals, with little fuss over Logan.
It's now like one of those laws in the old states banning women from wearing less than three kinds of underwear on Sundays. Still on the books but essentially meaningless.
Heh, I would be very interested to see this government try and make that argument.
http://www.slate.com/id/2102416/