The Law of Energy Exports

60 Pages Posted: 6 Mar 2020 Last revised: 10 Mar 2020

See all articles by Alexandra B. Klass

Alexandra B. Klass

University of Minnesota Law School

Shantal Pai

affiliation not provided to SSRN

Date Written: February 29, 2020

Abstract

The fossil fuel industry has filed an increasing number of dormant Commerce Clause lawsuits to overturn actions by coastal states and cities rejecting proposals for new coal and oil export facilities in their jurisdictions. These lawsuits are creating a wholly new “law of energy exports” that to date has been underexplored in the academic literature even as it garners frequent newspaper headlines. This Article is the first comprehensive analysis of this evolving body of law. It evaluates the lawsuits and legal claims surrounding energy exports and situates them in the context of the rapid changes in energy resource development and use in the United States and worldwide. It then evaluates the implications of this growing body of law more broadly. Resolution of these lawsuits will affect the ability of states and cities to enact policies that affect a broad range of interstate markets for energy-related goods such as coal, oil, natural gas, and renewable energy. The law of energy exports will also impact legal doctrines that apply to trade with other nations and the power of the executive branch to shape judicial resolution of dormant Foreign Commerce Clause disputes.

This Article concludes that with regard to the energy export cases themselves, existing dormant Commerce Clause doctrine supports the authority of state and local governments to reject new fossil fuel export facilities within their jurisdictions if such actions are implemented to protect public health and the environment and not for economic protectionist reasons. Moreover, resolution of the energy export cases has the potential to establish a new jurisprudence with a more limited role for the dormant Commerce Clause to act as a barrier to nondiscriminatory state and local energy and environmental policies that affect interstate energy markets. Such a development would place more focus on Congress, rather than the courts or the executive branch, to resolve energy-related disputes between states.

Keywords: Commerce Clause, Dormant Commerce Clause, Land Use, Environmental Protection, Coal, Oil, Natural Gas, Export Terminals, Dormant Foreign Commerce Clause, Energy Exports, Federalism, Clean Energy Laws, Climate Change, Millennium Bulk Terminal, GHG Emissions

JEL Classification: K11, K32, K41, K23, Q3, Q4, Q5

Suggested Citation

Klass, Alexandra B. and Pai, Shantal, The Law of Energy Exports (February 29, 2020). California Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3546541

Alexandra B. Klass (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-625-0155 (Phone)

Shantal Pai

affiliation not provided to SSRN

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