State Climate Actors Under the Federal Power Act: A 2017 FPA Update, Guidance, and Solution

Author(s)

Ian Kearney

Details

Faculty editor: Tim Duane
Publication: Journal of Climate & Energy Law
Volume: 10
Issue:
Start Page: 207
Month: August
Year: 2019
Type: Article
Subject Area: Environmental Law
Instititional Repository (IR) location of full article: https://digital.sandiego.edu/jcel/vol10/iss1/

Abstract

Climate change poses the greatest single threat to nearly every being on this planet. It is the result of many factors, but anthropogenic emissions of carbon and other greenhouse gasses (GHGs) are among the largest contributors to climate change. Though many sources emit anthropogenic GHGs, the energy sector is the largest global emitter of any economic sector. As such, the energy sector has come under particular scrutiny as it relates to climate change policy. Today in the United States, state climate action is as prevalent as ever. However, the federal government’s environmental progress under the Obama Administration has come to a halt under the Trump Administration. Fortunately, this shift in federal leadership has not dissuaded states. Rather, it increased climate change activity among them. In light of this increased fervor and relative youth of the renewables market—which has its own inefficiencies to resolve—plenty of reasons exist for continued optimism in renewable energy and state deployment thereof. That said, it is imperative for policy makers to understand the federal-state jurisdictional boundary in the energy sector. Longstanding federal legislation broadly divides the federal and state energy regulatory spheres, but evolving energy markets and recent case law render this jurisdictional line sufficiently unclear. This Article parses recent cases to clarify the line and proposes some guiding Rules and Principles designed to simplify the federal-state jurisdictional boundaries. This Article is based on the judiciary’s Federal preemption analysis as it relates to the Federal Power Act (FPA). Although there are related Commerce Clause issues, this Article is limited to analysis of federal and state jurisdiction issues under the FPA. That is in part because “hard cases make bad law”—electrical energy often produces tough factual scenarios that do not fit neatly into Commerce Clause jurisprudence. Courts should consider avoiding constitutional analysis wherever a court can rule on other legal grounds. This Article also focuses on federal-state jurisdiction under the FPA instead of the Commerce Clause for the following reasons: the FPA’s creation supports such analysis; the persuasive preemption analysis arguments advanced in Heydinger; and the lack of thorough FPA preemption analyses by commentators in comparison to that for the Commerce Clause.