About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

41 Harv. Envtl. L. Rev. 189 (2017)
Constitutional Challenges and Regulatory Opportunities for State Climate Policy Innovation

handle is hein.journals/helr41 and id is 193 raw text is: CONSTITUTIONAL CHALLENGES AND REGULATORY OPPORTUNITIES FOR STATE CLIMATE POLICY INNOVATION Felix Mormann* This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power. But renewable portfolio standards, feed-in tariffs, and other state climate policies have increasingly come under attack for alleged violations of the Constitution. How much latitude do states have when they experiment with innovative climate and clean energy policies? And which policy best protects states from the risk of lengthy and costly litigation over its constitutionality? To answer these crucial questions, this Article takes stock of recent litigation challenging the constitutionality of state renewable portfolio standards and feed-in tartffs. Qualitative analysis reveals markedly diferent constitutional risk profiles for both policies with portfolio standards more prone to Commerce Clause challenges and feed-in tariffs more likely to face Supremacy Clause challenges. These vulnerabilities have prompted widespread scholarly skep- ticism over both policies' constitutional viability when implemented at the state level, often accompanied by calls for sweeping legislative or judicial reform. Pushing back against the prevailing scholarly skepticism, this Article draws on recent precedent to make the case for joint implementation of both policies as a way to reduce, rather than exacerbate, a state's overall exposure to the risk of constitutional attacks on its climate and clean energy policy. Introduction ................................................ 190 . Renewable Portfolio Standards and Feed-in Tarifs: A Primer ...... 198 II. Constitutional Challenges to State Renewable Portfolio Standards ... 200 A. Recent Litigation over State Renewable Portfolio Standards.... 203 B. Sketching a Constitutional Risk Profile for State Renewable Portfolio Standards ....... ............................. 209 Associate Professor, University of Miami School of Law; Faculty Fellow, Stanford Law School. For their insightful comments on earlier versions of this work, I would like to thank David Adelman, William Blatt, Jonathan Cannon, Ann Carlson, Caroline Corbin, Dan Far- ber, Jody Freeman, Michael Froomkin, Michael Gerrard, Fran Hill, Shi-Ling Hsu, Doug Kysar, Stanley Langbein, Richard Pierce, Jr., Stephen Schnably, Frank Valdes, and Rick Williamson. I would also like to thank participants in Columbia Law School's Sabin Collo- quium on Innovative Environmental Law Scholarship, George Washington Law School's Shapiro Environmental Law Symposium, Northwestern Law School's Searle Conference on Federalism and Energy, the University of Minnesota's Conference on Multi-dimensional Action to Address Climate Change, and faculty workshops at Florida International Univer- sity School of Law and Texas A&M School of Law. For her excellent research assistance, I am grateful to Brittany Gunter. For their thoughtful comments and suggestions, I would like to thank my editors, John Bullock and Joshua Lee.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most