Federalism 'Collisions' in Energy Policy

by Alexandra Klass | November 20, 2018

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 ...

Turning Power Over to States Won't Improve Protection for Endangered Species

by Alejandro Camacho | January 11, 2018
Professor Michael Robinson-Dorn of the University of California, Irvine co-authored this article with Center for Progressive Reform Member Scholar and University of California, Irvine Professor Alejandro Camacho. It originally appeared in The Conversation on January 11, 2018. Since the Endangered Species Act became law in 1973, the U.S. government has played a critical role in protecting endangered and threatened species. But while the law is overwhelmingly popular with the American public, critics in Congress are proposing to significantly reduce federal ...

As EPA Embarks on Dangerous Experiment in Federalism, How Will States Respond?

by Evan Isaacson | March 20, 2017
In the early 1970s, Congress passed the Clean Air Act and Clean Water Act on nearly unanimous votes. The overwhelming support for these new laws reflected not only the horrific condition of America’s air, water, and landscape at the time, but also an appreciation of the collective action problem states faced, necessitating federal action. The major environmental laws that passed in the following years were predicated on the need to set a federal floor for environmental standards in order to ...

Environmental Federalism and Scott Pruitt -- We've Been Here Before

by Evan Isaacson | February 27, 2017
The ascension of Scott Pruitt as Administrator of the Environmental Protection Agency (EPA) ushers in a new chapter in the long story of cooperative federalism in the administration of U.S. environmental laws. Pruitt's words and actions as the Attorney General of Oklahoma suggest that, as much as any other issue, idea, or policy, federalism will be a recurring theme. But are the cries about federalism really about finding the proper balance of state and federal roles in implementation of our ...

Climate Legislation Federalism Choices: Reflections After Murkowski, Brown and in Anticipation of the Forthcoming Kerry-Graham-Lieberman Bill

by William Buzbee | April 01, 2010
Federalism battles over state roles under federal climate legislation may have appeared settled, but they are once again under debate. The previous leading bills–the Waxman-Markey bill passed by the House, and the Boxer-Kerry bill passed out of a committee in the Senate–lost momentum several months ago. After several months of legislative inaction, Senators Kerry, Graham, and Lieberman have been working on a new piece of climate legislation. After the senators’ comments indicated that this bill might broadly undercut state and ...

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