Pentagon Preemption: The 5-Sided Loss of Energy and Power

Authors

Steven Ferrey, Suffolk University Law SchoolFollow

Document Type

Article

Publication Title

Journal of Law, Technology and Policy

Abstract

States have attempted recently to regulate the unique form of electric energy as to its:

· Place – forcing power generation to locate in the state or leave the state

· Price – Providing a higher price for certain power generated in the state or requiring utilities and their ratepayers to pay above market prices for certain power

· Regulatory credit value -- Providing greater credits for in-state power or fuel

Some federal courts have struck state regulation of energy and climate change-related renewable technologies as constituting a violation preempted under the Supremacy Clause of the Constitution in five dimensions. State regulation has been found by some courts to cross illegally a “bright line” established by the Supremacy Clause of the Constitution. This article dissects and analyzes what could be characterized as a pentagon of preemption through recent federal court decisions. The article analyzes in detail both it “inside” dimensions where in-state power is favored compared to out-of-state power, and its exterior dimensions where states attempt to keep certain power outside the state. The article analyzes the impacts of preempted power sector decisions how the sector will evolve under law.

First Page

393

Last Page

444

Publication Date

2014

Recommended Citation

Steven Ferrey, Pentagon Preemption: The 5-Sided Loss of State Energy and Power, 2014 J. of L., Tech. and Pol'y 393 (2014).

Creative Commons License

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