Legal History Repeats Itself on Climate Change: The Commerce Clause and Renewable Energy

Authors

Steven Ferrey, Suffolk University Law SchoolFollow

Document Type

Article

Publication Title

Georgetown Environmental Law Review

Abstract

Discrimination and power: Federal courts found that some state renewable power laws violate the U.S. Constitution Commerce Clause by discriminating against out-of-state renewable energy. At stake is climate change and the near-term future of the Planet. After warned almost a decade ago about their Constitutional violation, which states conformed their laws as the Earth has warmed? This article analyzes which of 22 U.S. states flagged as to having potentially unconstitutional discriminatory renewable energy laws a decade ago have conformed their discriminatory renewable energy laws and which have allowed legal history to repeat itself?
Scrutinized technically rather than legally, electricity was identified as the second-most important invention since the wheel. Electric power is the preeminent U.S. technology undergirding all sixteen infrastructure sectors considered “critical” by the U.S. Department of Homeland Security. However, analyzed in this article is the unusual intra-circuit legal stand-off regarding the Constitution’s Commerce Clause, energy, and climate change law. This article analyzes how the Constitution’s Commerce Clause now serves as the legal fulcrum to leverage the law on climate and whether (unconstitutional) legal history repeats itself as the Biden administration steps forward.

First Page

489

Last Page

549

Publication Date

Summer 2021

Recommended Citation

Steven Ferrey, Legal History Repeats Itself on Climate Change, 33 Georgetown Env't L. R. 489 (2022).

Creative Commons License

This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License