Solving the Multimillion Dollar Constitutional Puzzle Surrounding State "Sustainable" Energy Policy

Authors

Steven Ferrey, Suffolk University Law SchoolFollow

Document Type

Article

Publication Title

Wake Forest Law Review

Abstract

The U.S. confronted a Constitutional impasse: The ability of state government to enact sustainable energy statutes and regulations is significantly restricted by successful recent Constitutional legal challenges to states actions This article identifies a solution to implement legally ‘bulletproof’ sustainable regulation at the state level, circumventing the major Constitutional impasse now frustrating U.S renewable energy policy

U.S. sustainable energy policy is principally implemented through state law and regulation, through five types of state programs. As implemented, these five policies are now being challenged as unconstitutional and improper exercises of state government authority. There is a legally “bright” jurisdictional line nowhere more sharply defined than for electric power in America, and particularly now for sustainable energy policy. Electric power is now increasingly transmitted and moving in the U.S. through (1) wholesale power transactions between independent generators and utilities and (2) in interstate commerce –

· the first status bars any state regulation under the Supremacy Clause and the Supreme Court’s “Filed Rate” doctrine

· the second status prohibits states enacting statutes or orders with even indirect geographic discrimination of electric commerce under the Constitution’s dormant Commerce Clause

The Supreme Court in FERC v. Mississippi held that nothing in the U.S. economy is more fundamentally in interstate commerce than electricity. This article proposes a new state mechanism which does not trigger interstate commerce and operates exclusively on the retail side of power transactions, rather than impermissably on the wholesale side of transactions. This solution is a legally robust and accepted technique for retail electricity sales in every state, and stays well clear of all legal f Constitutional trip-wires now confounding renewable energy initiatives. Legally, it would rescue U.S. renewable energy policy and address climate change. It is proposed and vetted in this article as a solution to a current impasse.

First Page

121

Last Page

185

Publication Date

2014

Recommended Citation

Steven Ferrey, Solving the Multimillion Dollar Constitutional Puzzle Surrounding State "Sustainable" Energy Policy, 49 Wake Forest L. Rev. 121 (2014).

Creative Commons License

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