The Tipping Point of Federalism
Amy L. Stein
University of Florida Levin College of Law; Tulane University Law School
July 3, 2012
Connecticut Law Review, 2012
As the Supreme Court has noted, 'it is difficult to conceive of a more basic element of interstate commerce than electric energy, a product that is used in virtually every home and every commercial or manufacturing facility. No state relies solely on its own resources in this respect.' And yet the authority to make many decisions fundamental to the type of power supply for our country is left solely to the states. This means that each state or locality has sole authority to determine whether its power needs are met through coal, natural gas, solar, wind, energy efficiency, or other methods. As the nation finds itself faced with important decisions that directly implicate the sources of our electricity, including climate change and energy security, the proper functioning of a system of exclusive state control over electricity siting is increasingly strained.
Continued state control over the siting of electricity generation is particularly curious when viewed in relation to other commonplace siting regimes. This Article traces the evolution of authority governing the siting of railroads, natural gas pipelines, wireless telecommunications, and electricity transmission, finding that they share many of the same federalism justifications for centralized control that exist in the siting of electricity. Yet in every case except for electricity generation, Congress tipped the balance of power to allow for more federal authority over these siting decisions. This Article explores the disparity between state control over the siting of electricity generation and enhanced federal control in the other siting regimes. It looks to federalism, land use, and public choice theories for guidance in explaining the disparity, ultimately finding each unsatisfying.
Instead, this Article urges a reevaluation of an often overlooked factor in evaluating tipping points – the ability of federal agencies to exert their federal influence through alternative outlets. Where an agency is able to utilize existing statutory authority to shape a decision that has been reserved to the state or local governments, it may reduce the pressure to formally alter the federalism balance. This Article suggests that a more active federal agency is involved in influencing the siting of electricity generation than was involved in the other siting regimes. Rather than a federal interest limited to where the infrastructure is sited, the federal interest in the siting of electricity generation extends to the type of infrastructure being sited. The exercise of existing statutory authority by relevant agencies plays a key role in explaining the disparity in the siting regimes, as well as providing insights into the broader federalism literature surrounding the circumstances that foster tips from state towards federal authority.
Number of Pages in PDF File: 61
Keywords: federalism, energy, environmental, telecommunications, railroads, natural gas, electricity, generation, transmission linesAccepted Paper Series
Date posted: July 3, 2012
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