The Carbon Suite in the Hotel California: "We Are All Just Prisoners Here, of Our Own Device"

Authors

Steven Ferrey, Suffolk University Law SchoolFollow

Document Type

Article

Publication Title

Southern California Interdisciplinary Law Journal

Abstract

As in the Eagle’s classic album and song “Hotel California,” California became a legal “prisoner of its own device,” amid a suite of legal challenges for exceeding the U.S. Constitution’s limits on state power. What distinguished California is not the large suite of recent legal challenges, but the fact that they are initiated by all stakeholders -- environmental, low-income, and industry groups. California was declared to have acted illegally on some basis, or it capitulated through settlement, in the majority of these challenges.

This article charts more than a half dozen recent and often successful challenges to California regulation based on (1) state law, (2) the Supremacy Clause of the Constitution, and/or (3) the dormant Commerce Clause of the Constitution. California lost or settled many of these recent carbon challenges. There were plenty of legal signposts of what could not be done legally.1 This article slides California sustainable energy laws under the legal microscope.

In 7 significant legal challenges raised pursuant to state law: California either settled in favor of challengers or lost 3 of the 4 of these which proceeded to a decision, while 1 other case was sidetracked on procedural grounds without reaching the merits of the claim, and 3 others were still pending a decision at the time of this article’s publication. California also was challenged pursuant to the Supremacy Clause of the U.S. Constitution regarding regulation of its electric power generation facilities and liquid fuels in 6 significant suits. This article documents California regulation under a legal microscope, both in terms of the procedure of challenges and the substantive issues of excessive state regulation.

First Page

451

Last Page

508

Publication Date

Spring 2014

Recommended Citation

Steven Ferrey, The Carbon Suite in the Hotel California: "We Are All Prisoners Here, of Our Own Device", 23 S. Cal. Interdisc. L. J. 451 (2014).

Creative Commons License

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