The Brave New Path of Energy Federalism

Abstract

For much of the past 80 years courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” with a fixed, legalistic boundary between federal and state regulators. This Article explores how recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes.

These recent decisions do not approach federal-state jurisdiction as either/or proposition, but instead recognize it is concurrent in certain contexts. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also has been target of criticism, including in Justice Scalia’s last published dissent. This Article defends concurrent jurisdiction as consistent with the history, structure and language of energy statutes, as well as their primary purposes of closing regulatory gaps.

At the same time, energy federalism’s path continues to confront a thicket of doctrinal relics from dual sovereignty’s reign, such as field preemption. These doctrines must cleared from federalism’s path if regulators are to succeed in addressing the challenges presented by modern energy markets, such as the expansion and integration of clean energy resources into the grid, protecting reliability, addressing energy security, and the monitoring of anticompetitive conduct that is harmful to consumers. The Article concludes by calling on courts and regulators to be attentive to promoting democratically accountably agency preemption as they address the challenges of new forms of energy federalism.

Keywords: Federalism, Energy Law, Environmental Law, Demand Response, Clean Energy, Federal Energy Regulatory Commission, Public Utilities