Null Climate Federalism: State Frustration of Federal Renewable Energy Entitlements

Authors

Steven Ferrey, Suffolk University Law SchoolFollow

Document Type

Article

Publication Title

Virginia Environmental Law Journal

Abstract

Arresting rapid climate change is considered one of the most challenging issues of this century. To do so successfully, the U.S. must rapidly convert its electric power sector to operate on renewable energy. The Biden Administration pledged that the U.S. will have only clean/renewable electricity by 2035 – in these next 13 years U.S. federal tax incentives for renewable energy are scheduled to be substantially diminished or eliminated. Notwithstanding, there is one fundamental federal entitlement of rights for renewable power development.

The Public Utilities Regulatory Policies Act (“PURPA”) statute was enacted by President Carter as the U.S. response to an energy crisis which was characterized by the President as “the Moral Equivalent of War.” Recently, three otherwise pro-sustainable-energy states did not adhere to required PURPA federal entitlements which promote renewable energy projects. Three different federal circuit courts issued recent decisions regarding these violations and injuries to a solar energy developer. However, these three circuits diverged as to whether a sustainable energy developer has standing to address its injury or a private right of legal action under the nation’s foundational sustainable energy statute that was twice before upheld by the U.S. Supreme Court:

· the Second Circuit on procedural grounds dismissed all of plaintiff’s claims.

· the First Circuit pursuant to the same statute found standing of, injury to, and entitlement of, the same injured solar plaintiff involved in the 2nd Circuit case above, but denied a private right of action for plaintiff to redress its injury.

· the Ninth Circuit for the same plaintiff involved in the First and Second Circuit matters above, and pursuant to the same statute, found impermissible state conduct but no private right of action for the plaintiff to proceed to the merits of its claims for damages.

These circuits found injury from the state failing to follow federal PURPA (or there was a later admission), however the injured solar energy party who prevailed and incurred legal costs was denied any legal relief. There is déjà vu: This article catalogues that these states involved were ordered by prior federal and state courts and the federal regulatory agency that they previously were not legally adhering to PURPA requirements.

This article analyzes each of these recent federal court decisions and places these in context of prior decisions involving these states not following the same federal PURPA sustainability statute. This article contrasts each of these recent decisions with applicable Supreme Court and federal precedent requiring states to follow U.S. renewable energy law. This article analyzes the remedy gap created by these three recent circuit court decisions where injury is found regarding state violations of the foundational U.S. sustainability law and notwithstanding this, no relief is provided for the plaintiff. This will impact the U.S. roll-out of a future with sustainable electric power.

First Page

1

Last Page

69

Publication Date

2021

Recommended Citation

Steven Ferrey, Null Climate Federalism: State Frustration of Federal Renewable Energy Entitlements, 39 Va. Env't L. J. 1 (2021).

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