Document Type
Article
Publication Title
Vermont Law Review
Abstract
This article reaches beyond the pro/con policy debate now surrounding the Green New Deal, to address prospectively the fundamental legal issue of whether, and how, the Green New Deal will be viewed by the courts when it is enacted and challenged. President Biden has pledged to have 100% sustainable electric power in the U.S. by 2035. The Green New Deal, sponsored by Representative Alexandria Ocasio-Cortez and Senator Edward Markey and co-sponsored or backed by a majority of the Democratic candidates for the 2020 presidency, combines “Green” elements with “New Deal” provisions.
Do two sweeping legal policies in the Green New Deal achieve the sum of their parts? This article analyzes why this is not necessarily so, when legislation crosses what the Supreme Court has characterized as a jurisdictional “bright line” created by the Constitution’s Supremacy Clause. This article analyzes in detail both federal and state legal “trip wires” that could confront implementation of the Green New Deal --
At the federal level:
· Binding Federal Energy Regulatory Commission orders mandate lowest competitive cost choices notwithstanding any other federal “Green New Deal” green policy preferences
· Three recent decisions of the Supreme Court limit traditional Chevron deference for any EPA regulations that address electric sector emissions affecting climate change
· Federal tax incentives for renewable energy are scheduled to phase-out or –down
At the state level:
· Another recent Supreme Court decision outlaws state regulations that attempt to attract certain types of power generation to their states within what is an interstate power market
· Renewable Energy resources are not commensurately distributed among the states, with as much as a 4:1 state-by-state differential on available solar and other ‘green’ power
· State energy regulatory precedent in many of the states already prohibits certain changes to electric rates not reflecting the cost of service
This article addresses and analyzes these various Constitutional legal ‘trip wires’ that will confront a final version of the Green New Deal. This article concludes with a separate section identifying potential legal triage to apply to what could survive in a challenged Green New Deal: Amid dueling federal and state authority, this article identifies and analyzes a “back door” for ‘green’ power as one legally sustainable opening for certain Green New Deal elements.
First Page
777
Last Page
848
Publication Date
2020
Recommended Citation
Steven Ferrey, The "Green New Deal": Constitutional Limitations; Rerouting Green Technology, 44 Vt. L. Rev. 777 (2020).
Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License