Suchergebnisse

This Article argues that a national renewable portfolio standard (RPS) for electric power is not likely to advance its purported goals, nor is it likely to be adopted by Congress in its present proposed form. For one, a national RPS would have geographically disproportionate costs - those costs would be focused on a few, mostly natural resource-poor states, whereas the benefits of job growth and technological adoption in infant industries will be elsewhere. Second, the ability of firms to use operational flexibility regarding their nonrenewable fuel mix to substitute other nonrenewable energy sources for traditional fossil fuels undermines the purported climate change benefits of such a requirement, and usually raises costs and increases inefficiency of energy generation as well. Furthermore, a national RPS fails to address preexisting system-level infrastructure siting and cost allocation barriers in the electric power industry. Without broader reforms to the energy industry, significant new investment in renewable power is unlikely.

Reform proposals pending in the U.S. Congress would increase federal and regional power to preempt states in siting transmission lines on order to allow the development of a high-votage transmission grid for renewable resources. This Article recognizes the inadequacy of existing state siting authority over transmission, but takes a skeptical approach to expanding federal siting jurisdiction as a solution to the problem and argues that the over-attention to transmission line siting authority is a bit of a Trojan horse in the climate change debate. Specifically, because it ignores the more difficult issues of how the costs and benefits of transmission are balanced, and how it will be paid for, siting jurisdiction alone will not remove barriers to transmission infrastructure and may present some hidden problems of its own. Legislative focus on enhancing federal authority over transmission lines has confused responsibility for this issue, further delaying federal administrators and regional bodies from taking proactive approaches that they currently possess authority to implement. Further, transmission siting authority reforms can actually undermine climate change goals if it does not consider the full costs and benefits associated with a project. It must also assess how transmission will be priced. Failure to do these things can make transmission siting authority a Trojan horse in the climate change debate - masking fundamental issues that could harm the climate and keeping reformers from focusing on the more serious barriers faced by the large-scale development of renewable resources.

Public choice themes have arisen throughout the history of U.S. energy regulation and continue to be relevant today, particularly with widespread discussion of deregulation and increased attention to climate change. This Article surveys how public choice themes are relevant to understanding a host of issues of importance to the electric power industry today, including the structure of the industry, the significance of wholesale markets, and the division of regulatory power between state and federal authorities. The Article highlights how an understanding of how public choice has contributed to these features of the electric power industry will prove important to the successes and failures of national climate change policy.

In this Essay, I address the question of which branch of state government ought to have the authority to negotiate interstate compacts - a question of state separation of powers. Recent case law interpreting state constitutions in the context of Indian gambling compacts provides a particularly fertile ground for exploring this question, as it illustrates how courts are struggling to find a way to allow state executive officials greater autonomy to negotiate interstate compacts. Part I illustrates how traditional notions of separation of powers under state constitutions can be understood to pose a barrier to executive branch negotiation of interstate compacts. Part II illustrates how state courts have found this approach unsatisfactory, and discusses how cases have looked to Contract Clause principles to override traditional state separation of powers concerns. I argue that Contract Clause principles are an unsatisfactory way of resolving concerns with the state allocation of powers to negotiate compacts, for both legal and policy reasons. The Essay concludes in Part III by arguing that to date state courts have used an isolationist interpretive method to address the problem. As an alternative I propose that courts interpret the separation of powers provisions of state constitutions in the context of the federal programs states may be furthering when they enter into interstate compacts. Specifically, by drawing on implied preemption principles under the Supremacy Clause of the U.S. Constitution, courts could heed state separation of powers principles in this area without turning separation of powers into a barrier to compacts. Where Congress has indicated some preference for compacts and has authorized states to enter into compacts, I propose a presumption of state executive authority to negotiate compacts on behalf of the state. Where a state legislature has not specifically prohibited the executive from negotiating a compact in a regulatory area, this presumption would authorize the executive to act on behalf ...

Courts struggle with the tension between national competition laws, on the one hand, and state and local regulation, on the other--especially as traditional governmental functions are privatized and as economic regulation advances beyond its traditional role to address market monitoring. This Article defends a process-based account of the antitrust state-action exception against alternative interpretations, such as the substantive efficiency-preemption approach that Richard Squire recently advanced, and it elaborates on what such a process-based account would entail for courts addressing the role of state economic regulation as a defense in antitrust cases. It recasts the debate as focused around delegation issues and judicial deference to regulation--aditionally issues of administrative law. Courts frequently invoke antitrust state-action-exception issues where state officials fail to act or only act partially to regulate, as is increasingly common where states privatize governmental functions or attempt to deregulate, or implement competition policies of their own. As this Article argues, in such contexts a delegation model, which focuses on the conditions under which state legislative bodies have made delegations, whether agency regulators have standards, and the reasons provided by state and local officials for regulatory inaction, provides a more powerful and principled approach for evaluating the interaction between regulation and antitrustlitigation than alternative approaches.

Courts and scholars have largely overlooked the constitutional source and scope of a state executive's powers to avert and respond to crises. This Article addresses how actual and perceived legal barriers to executive authority under state constitutions can have major consequences beyond a state's borders during times of crisis. It proposes to empower state executives to address federal and regional goals without any previous authorization from the state legislature-a presumption of state executive lawmaking, subject to state legislative override, which would give a state or local executive expansive lawmaking authority within its system of government to address national and regional goals during times of crisis. Although the approach of this Article is to suggest a solution for state courts, based on state constitutional interpretation, its analysis also recommends an approach for state legislatures as they consider state emergency management statutes, as well as for Congress as it considers national emergency management legislation.

This Article argues that public law has fallen into what I call a deference trap in addressing conflicts in deregulated industries, such as telecommunications and electric power. The deference trap describes a judicial reluctance to intervene in disputes involving political institutions, such as regulatory agencies and states. By reassessing the deference trap across the legal doctrines that are effecting emerging telecommunications and electric power markets, public law can deliver much more for deregulated markets. The deference trap poses a particular cost as markets are deregulated, one that may not have been present during previous regulatory eras in which public and private interests in regulatory bargaining were more likely to converge. In expanding the range and degree of potential divergence between public and private interests, deregulation challenges policy makers and courts to reevaluate many of the traditional public law doctrines that frame the process for defining and implementing the rules in competitive markets. This Article sets out to advance this project in the context of three vignettes. In doing so, I draw on a bargaining account of regulation, supplemented with a comparative institutional analysis. The approach evaluates the institutional setting for governance of deregulated markets; it does not limit its analysis to the decisions of a single regulator but pays attention to alternative (and often competing) institutions, including courts, Congress and state legislatures, and state versus federal regulation. Part I illustrates that public law has fallen into a deference trap in the context of the filed tariff doctrine and suggests that, by focusing on bargaining conditions in tariffing, courts could minimize strategic forum shopping in regulatory enforcement. Part II warns against public law falling into a deference trap in the context of judicial review of state regulation under the dormant commerce clause and state action immunity to antitrust enforcement, suggesting that courts correct ...