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Minimizing Constitutional Risk in State Energy Policy: A Survey of the State of the Law

May 2015

Citation: 45 ELR 10434

Issue: 5

Author: Kate Konschnik and Ari Peskoe

Constitutional challenges to new state energy policies have been mounting in state and federal courts. This Article surveys the state of the relevant law, focusing on the dormant Commerce Clause and the Supremacy Clause, and draws five conclusions to guide states in achieving their energy policy goals: (1) locational requirements may be valid if based on reasons other than economic protectionism; (2) locational requirements may be valid if they do not impede interstate commerce or if the benefiting in-state economic interests do not compete with out-of-state businesses; (3) policies should place legal obligations only on instate entities and may also set standards for entities that voluntarily do business with in-state entities; (4) because wholesale power prices are regulated by FERC, state policies that set a wholesale price may be preempted; and (5) limited incentives for fuel-efficient commercial vehicle fleets are permissible.

Kate Konschnik is Director of Harvard Law School’s Environmental Policy Initiative. Previously, she served as Chief Environmental Counsel to U.S. Sen. Sheldon Whitehouse (D-R.I.), and was an environmental enforcement trial attorney at the U.S. Department of Justice. Ari Peskoe is the Energy Law Fellow at Harvard Law School’s Environmental Policy Initiative. He was an associate in the energy advisory group of an international law firm, where he represented clients before the Federal Energy Regulatory Commission.

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