Legal Barriers to Sub-National Governance Techniques by U.S. States for Renewable Energy Promotion and GHG Control

Abstract

The attempt by many U.S. states to copy verbatim the European model of feed-in tariffs to promote renewable power and recent efforts of states to promote their renewable power development or greenhouse gas (“GHG”) emission restrictions have been successfully challenged legally in the past few months. These challenges have reinforced that these E.U. and Kyoto mechanisms employed by the states in the U.S. as a governance tool, run afoul of the U.S. Constitution. Renewable and climate change policy in the U.S. is undertaken by regulatory actions at the state, rather than federal, level. This is a significant issue going forward regarding institutional mechanisms available to U.S. states. On the flip-side of the coin, in separate legal actions, states were recently confronted with litigation, and settled, legal challenges raising Constitutional issues regarding their renewable RPS programs and RGGI carbon emission restrictions. The states are “batting” 0-3 in these various legal challenges to date. These are not just any states that were challenged, but the three most proactive renewable energy and GHG emission-controlled states in the country: New York, Massachusetts, and California. The European system of governance and regulatory techniques are subject to strict limitations when applied as a governance mechanism by U.S. states.