Document Type
Article
Publication Title
Arizona State Law Journal
Abstract
President Biden enacted his unprecedented large Infrastructure law to make what President Biden calls a “once-in-a-generation investment” to modernize U.S. infrastructure by rapidly deploying sustainable renewable power generation technology. As the primary U.S. federal law to address climate change before the world exceeds a ‘tipping point’ of uncontrolled warming, this Infrastructure law must not be impaired or frustrated by any other government actions. However, inferior levels of local government now are interceding, placing their legal ‘thumbs’ on and legally blocking implementation of Biden Administration sustainable Infrastructure. This article analyzes the legal conflicts posed by hundreds of state and local governments now blocking and legally de-railing this key legal initiative, including:
• 121 local policies restricting new sustainable wind and solar projects in 31 U.S. states
• More than 300 recent local decisions from California to Vermont blocking wind projects, through Constitutionally reserved local land-use powers protected by the Supreme Court
• Pursuant to court-protected powers, States blocking new transmission lines necessary to move renewable electricity to consumers in California, New York, Massachusetts, etc.
The 21st century’s new renewable wind and solar power technologies require a significantly greater amount of land to generate a kilowatt-hour of electric power than do traditional more dense fossil fuels – as much as 1000% more land. Inferior levels of government control land and its use under Constitutional allocation of powers, particularly regarding electric power infrastructure. This legal reality now creates two key sustainability bottlenecks:
• Already, hundreds of cities are using their land-use power to enact new ‘aesthetic’ zoning laws to ‘zone-out’ and prohibit the siting of new renewable energy technologies.
• A significant number of states already exercise their exclusive authority to block the siting of any electric transmission lines to deliver new renewable power in the United States
The Supreme Court heard and made a decision in its 2022 term that constricts federal Executive Branch power over climate change measures. This now-unfolding separation of powers conflict created by inferior-level local government action to veto federal policy is embedded in the Tenth Amendment of the Constitution and protected by the courts -- It cannot be changed by actions of Congress or the Executive branch. After analyzing all of these moving legal pieces, this article positively identifies a legal ‘work-around’ -- carving out a sustainable legal path forward requiring no new legislation to circumvent and dislocate the restrictive local ‘thumb’ retarding national sustainable infrastructure.
First Page
755
Last Page
818
Publication Date
Fall 2022
Recommended Citation
Steven Ferrey, Dislocating The Separation of Powers State ‘Thumb’ on The Biden Sustainability Initiatives & Law, 54 Ariz. St. L. R. 755 (2022).
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This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License