Document Type

Article

Publication Title

University of Michigan Journal of Environmental & Administrative Law

Abstract

This article analyzes the Constitutional Supremacy Clause tension preempting state law that addresses climate change. The article confronts and dissects legal responses to this century’s meta issue -- the rapid warming of the Planet. Net metering laws, enacted in 80% of U.S. states, are the primary legal regulations to control climate warming. This article analyzes in detail three recent federal cases that activate a Supremacy Clause preemptive stand-off between federal and state law, and presents a detailed state-by-state analysis of which states’ laws are poised to be preempted (presented in comparative state tables, analytic footnoted text, and 9 figures/maps illustrating variations in these state laws and their potential preemption).

If state net metering laws regulated only routine technologies, this would become a footnote and not merit scholarship on the legal stage. However, the federal government separately, in July 2020, revised regulations substantially restricted four decades of federal regulatory incentives for small renewable energy projects under the statute that President Jimmy Carter characterized as the response to fight the “moral equivalent of war!” This article takes on a timely issue in detail that is not addressed by any other recent law review articles.

At risk is whether U.S. law pushes world climate to the “tipping points . . . that will alter regional and global environmental balances . . . irreversible within the time span of our current civilization.” This article includes coverage of critical case law development through August 2020, as well as a dramatic new restrictive change in relevant federal regulations promulgated in July 2020. All 418 footnotes are inserted and complete (and already vetted by a member of our law review who is my research assistant). This article:

• Examines and documents that 75% of the states with questionable legal practices a decade ago have changed their laws to avoid legal prohibitions, while others have not

• dissects the overhanging Constitutional Supremacy Clause crisis surrounding the primary state laws supporting renewable energy to address climate change

The article parses the still-unresolved Constitutional legality of state laws in 80% of the states and their impact on the U.S. climate response. In its conclusion, this article provides a legal path for states to insulate their state laws from Constitutional challenge in order to address climate change.

First Page

415

Last Page

462

DOI

https://doi.org/10.36640/mjeal.10.2.tightening

Publication Date

Winter 2021

Creative Commons License

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

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