The Dormant Commerce Clause and State Clean Energy Legislation

Abstract

This Note analyzes recent litigation concerning the constitutionality of state renewable portfolio standards (RPSs) and similar environmental legislation designed to promote clean energy. It begins with a discussion of the current state of both federal and state responses to climate change. From there, it analyzes several legal challenges to state RPSs and other climate-related laws that focus on potential violations of the dormant Commerce Clause. It concludes with a brief exploration of how these cases fit the history and purpose of the dormant Commerce Clause. The Note argues that a narrow view of the doctrine is consistent with the purpose of the dormant Commerce Clause, will reaffirm principles of federalism, will enable state innovation in the renewable energy field, and will make a positive contribution to efforts to mitigate climate change. By structuring statutes so as to draw a court’s attention to the ways in which their legislation fits within the purpose of the dormant Commerce Clause, states can give themselves more space to take aggressive action to promote clean energy and reduce the impacts of climate change.