Sustainable Energy, Environmental Policy, and States' Rights: Discerning the Energy Future Through the Eye of the Dormant Commerce Clause

Abstract

This article analyzes the various regulatory incentives for renewable energy development in the various states, and their possible Constitutional shortcomings. Almost half the states have enacted renewable portfolio standards, which create monetized renewable energy credits that are tradable credits for sustainable energy development compliance. About one-third of the states have developed system benefit charges and renewable trust funds to subsidize selected renewable energy projects. Each of these states have defined differently what is a qualifying renewable energy project. Some of the states, to further in-state interests, have established programs that impermissibly violate the Commerce Clause of the Constitution. Others come close to crossing the line of infringing on preempted federal jurisdiction. This article dissects what is and is not permissible in establishing renewable energy programs at the state level. These issues are inherent in various state subsidy mechanisms.