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Ferrey, Laurent, & Ferrey on Constitutional Barriers to Climate Change Responses

By Lawrence Solum

Steven Ferrey , Chad Laurent and Cameron Ferrey (Suffolk University Law School, Meister Consultants Group and Computers Across Borders) have posted Fire and Ice: World Renewable Energy and Carbon Control Mechanisms Confront Constitutional Barriers (Duke Environmental Law & Policy Forum, Vol. 20, p. 125, 2010) on SSRN. Here is the abstract:

Fire and ice will forge the future of the world. The constitutional battle in the United States vis-à-vis global warming will determine the future of fire and ice. The electric sector of the economy holds the key; a fundamental transition to renewable energy is necessary to create a sustainable economy and abate global warming. As of 2009, ten U.S. states are vigorously moving toward implementing a feed-in tariff regulatory mechanism similar to those adopted previously by eighteen of the European Kyoto Protocol countries to shift to renewable power technologies. However, these feed-in tariffs could be found to violate the U.S. Constitution and plunge policy over an immovable legal cliff. This article outlines how twenty-seven U.S. states and five European Kyoto Protocol countries employ the constitutionally defensible alternative policy of renewable portfolio standards. Effectively reducing mounting annual carbon emissions is a profound global challenge. This article compares and contrasts the legality of the two primary means that states use to promote alternative renewable energy technologies so as to minimize carbon emissions: feed-in tariffs and renewable portfolio standards. These methods are analyzed against the Supremacy Clause requirements of the Constitution to determine which could violate existing U.S. law, dooming renewable energy and carbon control efforts. This analysis examines the policy options, their implementation, and what will and will not pass legal challenges. For a global push against global warming, the ends must not legally be confused with the means. The common goals of reducing the concentration of greenhouse gases cannot be implemented with the same tools under the separate legal systems of the United States and Europe. Getting legal policy right is imperative so that the transition to sustainable development proceeds smoothly and expeditiously and is not stalled in a protracted constitutional challenge.

Full post as published by Legal Theory Blog on September 09, 2010 (boomark / email).