19 Pages Posted: 23 Apr 2013
Date Written: 1990
As local utility regulation enacted early this century proved inadequate to deal with complex concerns, Congress passed statutes formulating a national energy policy. Under the resulting programs of concurrent state and federal regulation, competing authorities sometimes clashed. In the context of federal statutes, the supremacy clause governs competing state and federal claims to authority. Under traditional doctrine, a federal statute may preempt state law in one of three ways. First, a statute may expressly supersede state law. Second, a statute may occupy a field and leave no room for state regulation. Third, a federal statute preempts state law with which it actually conflicts; actual conflict occurs if state law blocks congressional purposes or compliance with federal law.
This Note argues that prevailing preemption doctrine gives courts insufficient guidance in complex cases involving energy regulation. Part I proposes that courts use economic analysis to supplement standard tools of statutory interpretation. To maximize regulatory gains, courts should grant disputed authority to the most efficient regulator: the states, a federal agency, or the deregulated market. Part II applies this theory to federal statutes regulating hydropower, natural gas, and nuclear energy.
Suggested Citation: Suggested Citation
Chen, James Ming, Preemption and Regulatory Efficiency in Federal Energy Statutes (1990). Harvard Law Review, Vol. 103, p. 1306-1324, 1990. Available at SSRN: https://ssrn.com/abstract=2255142