Originally published in The Regulatory Review. Reprinted with permission.
Like many areas of law, energy policy in the United States is both national and local. The boundary lines delineating federal and state authority are not always clear, leading to tension and disagreement between federal and state authorities. When tensions get too high, Congress can, and often has, stepped in to override state control in order to promote national interests. But when Congress faces partisan gridlock, an increasing number of disputes are resolved in the courts.
Over the past century, Congress has slowly carved out significant swaths of energy policy for federal control: oil and natural gas exports; automobile fuel economy standards; interstate transmission of electricity; permitting approval and eminent domain for interstate natural gas pipelines; and permitting approval for hydropower facilities and nuclear facilities. But much activity remains under state control: approval of interstate and intrastate oil pipelines and electric transmission lines; retail electricity and natural gas sales; approval of electric power generation facilities other than hydropower and nuclear, like wind farms, solar farms, coal plants, and natural gas plants; mandates on electric utilities to generate or purchase power from renewable energy resources; and standards for oil and gas drilling off of federal lands.
Legislation related to electricity and natural gas provides an example of how Congress has expanded federal jurisdiction in response to conflicts with states and between states. In the 1930s, Congress enacted the Natural ...