Reconstituting the Federalism Battle in Energy Transportation
University of Minnesota Law School, Legal Studies Research Paper Series, No. 16-27
71 Pages Posted: 10 Sep 2016 Last revised: 13 Aug 2017
Date Written: September 7, 2016
This article explores the growing federalism tensions in efforts to expand the nation’s energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today’s energy needs. We believe that many of the recent efforts by states and federal agencies to re-draw these jurisdictional battle lines in the context of particular projects have been counterproductive. They have they encouraged interest groups to entrench their respective positions in favor of state or federal regulatory power. They also have thwarted comprehensive and efficient energy planning, and have stood in the way of greater integration of new technologies and more diverse energy resources. Ultimately, we conclude that federal regulators — which have historically been much more attuned to federal and national energy needs in making project siting decisions — must be more proactive in addressing state interests and concerns associated with multi-state energy transport projects in cases where federal siting authority trumps that of the states. Likewise, for projects where the states possess primary regulatory authority that acts as a potential veto point over projects that promote federal and regional energy needs, a more significant federal role in evaluating those federal and regional needs is warranted.
Keywords: Constitution Pipeline, Plains and Eastern Clean Line, Clean Line Energy Partners, renewable energy, federalism, Clean Water Act, Coastal Zone Management Act, Clean Water Act Certification, electric tranasmission lines, eminent domain, natural gas, electricity
JEL Classification: K11, K23, K32, L94, L95, L97, L98, Q42, Q48
Suggested Citation: Suggested Citation