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This essay responds to claims that the "new" nondelegation doctrine, applied by D.C. Circuit Judge Stephen Williams in American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999), advances the rule of law. The Supreme Court has generally favored ex post over ex ante mechanisms for control of administrative action. Currently, for instance, courts apply arbitrary and capricious review, as a way to control agency decision making ex post. But the rule of law benefits of the "new" nondelegation doctrine are no greater than those delivered by the current means of ex post controls. The rule of law serves three primary functions: it reduces uncertainty; it minimizes the likelihood of government tyranny; and it helps to assure political accountability. Judicially enforced ex ante constraints, however, are not necessary to perform any of these functions, and may even undermine some of them. In addition, the rule of law is not the be-all and end-all of regulatory systems. There are countervailing benefits to a system that allows for regulatory flexibility. Although there may be some role for ex ante constraints in controlling agency discretion, the factors that determine the means of limiting agency discretion are political rather than legal in nature. Thus, imposition of ex ante limitations is best left to the political process--not to courts.

Private environmental governance provides new tools that can fill gaps in government regulatory regimes. The Tennessee Valley Authority (TVA) is a valuable case study for testing the efficacy of private environmental governance because it is one of the largest utility carbon emitters and is largely insulated from near-term federal and state government pressure to reduce emissions. TVA is not on a trajectory to achieve the decarbonization targets necessary to meet the goals of the Paris Agreement, but private governance initiatives can motivate TVA to accelerate its decarbonization process. TVA's securities filings acknowledge that it faces material threats on the energy supply side from distributed generation and customer preferences for renewable energy, and on the energy demand side from efficiency and conservation. Private governance initiatives could address the supply side by inducing large corporate and institutional customers, bondholders, and households to press for decarbonization of TVA's generation assets. On the demand side, private initiatives could motivate action by offering TVA accelerated electrification of motor vehicle fleets and buildings in return for accelerated decarbonization of TVA's generation assets. The Article concludes that these private governance options are not a panacea, but they have the potential to fill an important gap in public climate governance and pose little risk of displacing more effective government action. The TVA example also demonstrates the wide range of private governance options that are available to motivate emissions reductions by other difficult-to-regulate emissions sources.

This article explores the growing federalism tensions in efforts to expand the nation's energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today's energy needs. We believe that many of the recent efforts by states and federal agencies to re-draw these jurisdictional battle lines in the context of particular projects have been counterproductive. They have they encouraged interest groups to entrench their respective positions in favor of state or federal regulatory power. They also have thwarted comprehensive and efficient energy planning, and have stood in the way of greater integration of new technologies and more diverse energy resources. Ultimately, we conclude that federal regulators — which have historically been much more attuned to federal and national energy needs in making project siting decisions — must be more proactive in addressing state interests and concerns associated with multi-state energy transport projects in cases where federal siting authority trumps that of the states. Likewise, for projects where the states possess primary regulatory authority that acts as a potential veto point over projects that promote federal and regional energy needs, a more significant federal role in evaluating those federal and regional needs is warranted.

Interstate coordination presents one of the most difficult challenges for American federalism as well as for energy markets and policy. Existing laws vest the approval of large-scale energy infrastructure projects such as interstate oil pipelines and high-voltage, interstate electric transmission lines with state and local levels of government. At the same time, state siting and eminent domain regimes routinely enable and even encourage state regulators to hold out from approving interstate infrastructure projects, hobbling any hope for interstate coordination. This Article analyzes how judicial review under dormant Commerce Clause principles and doctrine can promote better interstate coordination by discouraging regulatory holdouts while still preserving state prerogatives to address land use issues. We draw on established doctrine, recent judicial developments, and federalism principles to argue for revitalized dormant Commerce Clause review of state and local regimes to improve interstate coordination in contexts where infrastructure projects require the approval of two or more states. We maintain that dormant Commerce Clause jurisprudence requires state regulators to apply a framework that allows them to consider benefits beyond their jurisdictional borders — particularly in instances where infrastructure projects are proposed by out-of-state developers or to create regional (as opposed to state-specific) benefits in energy markets. Applying such an approach would invalidate many existing state statutes that bar out-of-state applicants from seeking to build multi-state energy infrastructure projects in a state, and would require that a state grant eminent domain authority to out-of-state applicants on reciprocal terms to those offered to in-state incumbents.

This Article discusses how state public utility law presents a barrier to the siting of new high voltage transmission lines to serve renewable resources, and how states could approach its evolution in order to preserve a role for state regulators in a new energy economy in which renewable energy will play a significant role. The traditional approach to determining the "public interest" in siting transmission lines is well on its way to obsolescence. Two developments over the past fifteen years have begun to challenge this paradigm. First, policies at the federal level and in many states have encouraged increased competition in generation, contributing to de-monopolization of the bulk power side of the industry. Second, the increased emphasis on environmental, energy independence, and other public policy objectives, has resulted in a dramatically increased demand for renewable energy, particularly given heightened attention to climate change. Given that wind power -- the most economically viable renewable resource on a bulk power basis -- is feasible predominantly in locations far removed from, load centers, the demand for new multistate transmission facilities has been brought clearly into focus. After an introduction in Part I, Part II describes the existing arrangements in several resource rich Western states for siting new transmission lines, and the coexistence of those arrangements with a conventional understanding of the public interest in determining need and addressing environmental concerns under traditional state transmission siting laws. Part III discusses transmission issues related to the competitive wholesale market and increased attention to climate change and highlights how federal law has expanded to accommodate some of these concerns. Part IV emphasizes the need for a new definition of the public interest which might better reflect these new market circumstances and opportunities, and highlights the two main barriers to this: 1) legislative and/or regulatory inertia and 2) an outdated ...

Constitutional takings protections, such as those in the Fifth Amendment of the United States Constitution, create a potential for state liability for changes in regulatory policy by governments. This Article critiques takings jurisprudence in the context of two infrastructure investment issues: the stranded cost problem facing United States utility industries, which has given rise to claims of compensation for deregulatory takings; and the development of standards to protect direct foreign investment in developing countries. In both contexts, traditional legal doctrines do not adequately provide for the type of remedy sought so courts are in need of standards to assist them in determining when a change in government regulation warrants recovery for investors. After addressing the current state of United States takings jurisprudence, this Article outlines a constitutional takings doctrine that can be applied to these infrastructure investment issues both within and outside of the American context. Under the doctrine advanced in this Article, the government would be required to pay compensation whenever it takes resources as part of the process of producing public goods and services. This Article's analysis, however, supports a rebuttable presumption against compensation for losses connected with the overall implementation of a public policy. Property rights protection will not aid growth - nor will it sustain historical investment levels - if it encourages inefficient levels and types of investment. In the American context, federal court review of public utility deregulatory takings claims should not entertain the strong property rights notions that some advance for purposes of encouraging infrastructure investment. Instead, this Article concludes that there is no reason for courts to depart from the distinct line of cases addressing public utility price regulation, in which courts routinely defer to regulators' decisions regarding compensation. The courts should treat the deregulation of public utilities as an ...