State Refusal Triggers Constitutional Crisis: Past Is Prologue on Energy and Infrastructure

Authors

Steven Ferrey, Suffolk University Law SchoolFollow

Document Type

Article

Publication Title

The Review of Litigation

Abstract

There is a new Constitutional “federalism” issue, pitting multiple states versus the federal government in a legal fight over control of competitive power supply as the U.S. moves to more renewable energy. In the new electric economy, while federal agencies mandate competition, several states have refused. FERC Order 1000 prohibits states' favoring monopolies via state “Rights-of-First-Refusal” to insist that all power movement be given to incumbent monopolies rather than competitively allocated. This invokes both the Supremacy Clause under Article 8 of the Constitution, as well as the Article I Commerce Clause.

State sustainable energy policy has endured 10 recent significant legal challenges based on the Supremacy Clause of the Constitution, and lost or settled 8 of these 10, and won none on the merits, with the other two dismissed on procedural grounds without reaching the merits of the claim or still pending. Separately, state sustainable energy policy recently has undergone 13 significant legal challenges pursuant to the dormant Commerce Clause of the Constitution, with states settling in favor of challengers or losing 9 or these 13 matters, and winning none on the merits of the claim with the remainder procedurally dismissed. The resolution of this battle will shape the future infrastructure of the country, as well as the emerging degree of competition in the energy economy.

First Page

423

Last Page

491

Publication Date

Summer 2015

Recommended Citation

Steven Ferrey, State Refusal Triggers Constitutional Crisis: Past Is Prologue on Energy and Infrastructure, 34 The Rev. of Litig. 423 (2015).

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