The Brave New Path of Energy Federalism

Rossi, Jim
December 2016
Texas Law Review;Dec2016, Vol. 95 Issue 2, p399
Academic Journal
For much of the past eighty years, courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal-era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line, ” a fixed and legalistic boundary between federal and state regulators. This Article explores how three recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes. These recent decisions do not approach federal-state jurisdiction as an either/or proposition, but instead recognize it is concurrent for many energy transactions. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also has been a target of criticism, including in Justice Scalia’s last published dissent. This Article defends concurrent jurisdiction as consistent with the language, history, structure, and primary purposes of energy statutes. At the same time, energy federalism's path continues to navigate a trove of doctrinal relics from dual sovereignty’s reign, such as field preemption. These doctrines must be cleared from federalism’s path if regulators are to successfully address the challenges presented by modern energy markets: expanding clean-energy resources, integrating those resources into the grid, protecting reliability, addressing energy security, and monitoring anticompetitive conduct that is harmful to consumers, to name a few. The Article concludes by calling on courts and regulators to be attentive to opportunities for promoting democratically-accountable agency preemption while addressing the challenges of new forms of energy federalism.


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