Reinventing the Core U.S. Technology Through the Push of New Regulation Leveraging Market Pull

Abstract

Unilateral Presidential executive action is now used to implement new law and regulation, without participation of the Congress pursuant to Article I of the Constitution. Such actions create a visible and controversial legal confrontation regarding separation of powers. Certain unilateral executive action examined in this article is forcing technological and environmental change which is fundamentally transforming society. This article critically analyzes the revolutionary maelstrom forged by the interface of unilateral executive regulatory orders, law, and the ‘invisible hand’ of market dynamics on climate change.

After 800 years of Greenhouse Gas concentration levels hovering in the atmosphere between 175-250 part per million (ppm), they have now increased to 400 ppm and are climbing rapidly. This article examines the nuances of executive action and climate change. It analyzes the legality of state and federal regulatory incentive ‘pushes’ forging a fundamental national power change, including recent federal tax incentives and state renewable portfolio standards and net metering regulatory orders. This article then analyzes the invisible ‘pull’ of changing market forces. The article then shifts to analyze courts actions declaring some of these state energy program “pushes” unconstitutional and have stricken them.