Earlier this month, the North Carolina state senate introduced a bill calling for a new tax on distributors of carbon-based fuel. This development bears watching as it may signal a growing state-level tax policy trend toward taxing carbon emission. Given the lack of a nationally uniform net-zero emissions policy and carbon pricing controls, the states are taking pursuing their own policies -- at least until a more rigorous federal standard emerges. If and when that occurs, it would pre-empt any similar state actions under the Supremacy Clause of the Federal Constitution.
The North Carolina bill, which passed on first reading and was referred to another senate committee, defines a carbon-based fuel product “as coal, a petroleum product, natural gas, or electricity produced from such fuels.” The bill would require “every distributor (the vendor of a carbon-based fuel, at the first point of sale within the state) to pay a tax on any carbon-based fuel product sold, used, or entered into the state by the distributor for purposes of distribution or use within the state.” That tax rate would start at $20 per metric ton of carbon dioxide equivalent in 2022. That rate can increase a set amount annually until the rate reaches $50 per metric ton of carbon dioxide equivalent. Although Canada had implemented carbon tax legislation in 2019, the law was challenged and upheld back in March. Under the Canadian model, provinces can design and implement their own carbon pricing system; if they lack one, or if they have an “insufficient” system that does not meet federal standards, a regulatory fee is charged. This model may not work well here in the U.S. given our constitutional directives.
The broader implications of the bill are important. As I’ve mentioned, a carbon tax and/or emissions trading system (ETS) at the federal level appears unlikely right now. That’s not the case at the state level, where carbon taxation remains a developing area of policymaking. This development is ripe for acceleration as states take action to address revenue deficits and budget shortfalls that arose during the COVID recession. No U.S. state has a carbon tax – yet. Since 2018, several states – including Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, Montana, New Hampshire, New Mexico, New York Rhode Island, Texas, Utah, Vermont and Washington – have proposed legislation to enact a carbon tax, but these efforts have failed. According to PriceonCarbon.org, all attempted but failed to pass this type of legislation.
Nevertheless, there are precedents for this type of tax, as a few states already have some form of energy taxes. Additionally, the Regional Greenhouse Gas Initiative (RGGI) was formed a dozen years ago and currently counts the New England states along with New York, New Jersey, Maryland, Delaware and Virginia as members (Pennsylvania also appears poised to join). As the Center for Climate Energy Solution (C2ES) points out, “RGGI is the first mandatory cap-and-trade program in the United States to limit carbon dioxide emissions from the power sector. California’s program was the first multi-sector cap-and-trade program in North America, although not a part of the RGGI.
That initiative and North Carolina’s new bill may motivate other state legislatures to pursue their own form of carbon taxation or ETS. While federal preemption – a situation in which a federal law takes primacy over state laws in a specific field of legislation – would halt states from pursuing carbon taxes, should their standards not rise to the federal mandate, that obstacle seems unlikely to materialize any time soon. On a final note, only one municipality, Boulder, Colorado, has initiated its own Climate Action Plan (CAP) tax since 2007. It is the nation’s first voter-approved tax dedicated to addressing climate change, according to PriceonCarbon.org.
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