Vermont’s Proposed Carbon Tax: Ineffective and Unconstitutional?

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When the Vermont legislature next meets, there’s a good chance a new gas tax will be passed to penalize consumers for their carbon emissions. But is such a measure constitutional? The government is restricted by the Constitution to narrow enumerated areas of power and is subject to rules of fairness, clarity, and effectiveness. Due process and equal protection safeguard fairness, unclear laws are doctrinally called “unconstitutionally vague,” and effectiveness is ensured by burdens placed on the government so that laws will actually achieve what they’re ostensibly designed to accomplish.

This “effectiveness” limitation includes what in constitutional law is called “the rational basis test”:

The Supreme Court has asserted the power to review the substance of state and federal law for its reasonableness for almost 200 years. Since the mid-1960s, that review has taken the form of the “familiar ‘rational basis’ test,” under which the Court will strike a statute if it is not rationally related to a legitimate governmental interest.

For the purposes of this discussion on constitutional law, let’s assume that human activity is significantly changing the world’s climate. However, it is scientifically apparent that Vermont, one of the two most rural states in America, will not make any measurable impact on the global climate by way of its paltry carbon efforts. The attempt in Vermont to expand government as a mandated carbon broker is therefore based on an effort to be symbolic in global leadership. It is to be questioned whether that is a “legitimate government interest” that the drafters of our Constitution would have endorsed. Sadly, the courts tend to find a “legitimate government interest” for new taxes to pass the rational basis test – regardless of how irrational they might actually be.

Even if a purely symbolic effort to lead global altruism qualified as a legitimate government enterprise, carbon taxes fail to be rational at all. For instance, there is no distinction made between the recreational use of fuel and the carbon emitted while driving to work. This is patently unfair. In Vermont, many local people struggle to fill their gas tanks to navigate long commutes on crumbling roads, while tax dollars are spent to attract wealthy tourists to visit and drive around to look at the autumn foliage.

There is no proof that a carbon tax in Vermont will make one scintilla of difference in the ecosystem, but there is ample evidence that it will expand government and create inequities. For example, Burlington Mayor Miro Weinberger proclaimed:

A revenue-neutral Carbon Pollution Fee will ensure that resources are not removed from the economy and that over a billion dollars of fossil fuel payments are not sent out of state annually. This fee should be phased in incrementally to offer predictability, while at the same time giving a clear signal that can boost clean energy investment. Early adopter states will be positioned to benefit from the Climate Economy and should work vigorously to bring neighboring states into this effort to mitigate any adverse impacts on border town businesses.

Orwellian translation: “If a state goes it alone, their ‘border towns’ will suffer because consumers will travel into the next state to buy fuel to avoid the fee.” Ironically, this information is offered under the heading “Pro-Economic Growth.”

In contrast to these proposed carbon tax shenanigans, consider the constitutionality if a much larger tax on gasoline were imposed, not justified by carbon and its role in climate change, but by crude oil and its volatile role in economies. In fact, this is already done – the European Union levies a $1.61 per gallon excise tax to "facilitate and foster cross-border trade and to prevent significant competitive distortions." Member states can charge more – Italy’s tax is currently $3.26 per gallon.

One purpose of such taxes in Europe is to provide an emergency buffer in the event of sudden price shifts in world oil markets. But this is a legitimate state interest – and a high gas tax actually can be shown to achieve that goal.

Carbon taxes are not reasonable because they cannot be rationally related to an identifiable legitimate interest. They are inequitable, ineffective, and undermine economic growth – the exact opposite of what they advertise themselves to be. The Constitution protects us from laws such as this – but will the courts agree?

Originally published at Liberty Nation, October 19, 2019.