Constitutional Disputes in Multiple Dimensions: The Washington Post, the Wall Street Journal, and Sustainable Energy

Abstract

The Washington Post carried an article entitled “The Biggest Fight over Renewable Energy Is Now in the States,” describing how a large portion of the “action on clean energy in the United States is happening at the state level.” This is the critical, if often overlooked, structural element of the U.S. sustainable energy future: States are at the core of U.S. renewable/sustainable energy policy. The federal government has not enacted a significant new renewable energy law in more than a decade, other than incentives and rates embedded in the federal income tax. Federal tax policy now predominately supports renewable energy as opposed to fossil fuels.

The fight on energy is not only over the policy described by the Post, but has critical constitutional dimensions. The Wall Street Journal published an article criticizing states for treating renewable power produced outside their states and sold inside their states, unequally to that produced and sold inside the state. Such treatment, in which numerous states are engaging, raises core constitutional questions under the dormant Commerce Clause of the Constitution.

After examining federal incentives for sustainable energy policy, this article delves in detail into the legal nuances of the methods by which states have implemented state initiatives for sustainable energy policy. States remain responsible for the primary legislative and regulatory initiatives to promote sustainable energy and renewable energy in the United States. The article synthesizes multiple legal elements into a prescription of what states can do to navigate around constitutional challenge and sustain state policy.