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Climate Balkanization: Dormant Commerce and the Limits of State Energy Policy

LSU Journal of Energy Law and Resources (Forthcoming)

Case Legal Studies Research Paper No. 2014-07

49 Pages Posted: 13 Mar 2014 Last revised: 3 Jul 2014

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Date Written: July 2014

Abstract

State governments have adopted a range of policies intended to encourage the development of renewable energy sources and reduce greenhouse gas emissions. Some of these policies have the potential to burden interstate energy markets and may raise constitutional concerns. The Dormant Commerce Clause prohibits the enactment of protectionist legislation at the state level and further limits the ability of states to adopt policies that may otherwise burden interstate commerce. Whether states may continue to adopt various energy and climate polices may depend, in part, on the courts’ willingness to enforce traditional constitutional constraints on discriminatory and extra-territorial state legislation. This paper was prepared for the Lone Mountain Forum on “Energy Policy: Political, Legal, and Economic Issues,” December 5–8, 2013, Lone Mountain Ranch, in Big Sky, Montana.

Keywords: State Governments, Renewable Energy, Constitutional Law, Dormant Commerce Clause, Federlism, Commerce Clause, Energy

JEL Classification: K32

Suggested Citation

Adler, Jonathan H., Climate Balkanization: Dormant Commerce and the Limits of State Energy Policy (July 2014). LSU Journal of Energy Law and Resources (Forthcoming); Case Legal Studies Research Paper No. 2014-07. Available at SSRN: https://ssrn.com/abstract=2403294 or http://dx.doi.org/10.2139/ssrn.2403294

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

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HOME PAGE: http://www.jhadler.net

PERC - Property and Environment Research Center

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