Constitutional Contours for the Design and Implementation of Multistate Renewable Energy Programs and Projects
46 Pages Posted: 6 Oct 2009 Last revised: 7 Nov 2014
Date Written: September 17, 2010
States are increasingly considering multistate efforts to promote the production, sale, and use of renewable energy. For example, in August 2009, policymakers and stakeholders gathered to consider joint renewable energy (specifically, wind energy) transmission projects among Colorado, New Mexico, Utah, and Wyoming.
This Article explores a number of constitutional issues that multistate efforts to encourage, market, transmit, or distribute renewable energy could raise. It reflects the reality that, for energy, as for many other issues, multistate creativity in establishing new governance regimesor implementing interstate projects often creates constitutional ambiguities. Many of these ambiguities center on the constitutional status - private or governmental; local, state, or federal - of the resulting multistate or regional institutions.
Even so, the constitutional issues raised can usefully be divided into three categories for discussion: (1) issues that can arise as a result of the substantive content of the multistate enterprise; (2) procedural issues regarding the formation and conduct of the multistate enterprise; and (3) the core structural issue of whether the multistate enterprise requires an interstate compact. This Article discusses each of these sets of issues in turn, concluding that most multistate renewable energy programs and projects will require an interstate compact, but that interstate compacts afford states not only extensive flexibility to address renewable energy issues but also substantial protection from particular kinds of constitutional challenges - especially federal preemption.
Keywords: interstate compact, renewable energy, constitutional law, preemption, dormant Commerce Clause, electricity, transmission, Regional Greenhouse Gas Initiative, Northern Tier Transmission Group, governance, due process, Indian Commerce Clause, regulatory takings
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