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Decentralization and Deference: How Different Conceptions of Federalism Matter for Deference and Why That Matters for Renewable Energy

November 2017

Citation: 47 ELR 10963

Issue: 11

Author: Ben Raker

This Article poses a question about deference that remains surprisingly unresolved: when Congress delegates to both state and federal agencies under a “cooperative federalism” scheme, who gets deference when interpreting that law, the state or federal agency? This question has special significance for energy and environmental law because of how common cooperative federalism is to those fields. The Article discusses a recent series of challenges relating to the Public Utility Regulatory Policies Act that pose this question, and presents an answer: courts should consider whether Congress chose “federalism” or “decentralization,” and deference should operate differently depending on that choice.

Ben Raker is a recent graduate of Vanderbilt University Law School who is currently clerking on the U.S. District Court for the District of Maryland, and will clerk on the U.S. Court of Appeals for the Sixth Circuit in 2018. This Article won the Environmental Law Institute’s 2016-2017 Henry L. Diamond Constitutional Environmental Law Writing Competition. It was written entirely before he began his clerkship and does not reflect the views of his employers in any way.

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