Constitutional questions about state-mandated renewable tariffs.
Steven Ferrey is professor of law at Suffolk University Law School, and has served as a primary legal advisor to the World Bank and to the U.N. on global warming and renewable energy policy in developing countries. Chad Laurent is a project consultant with Meister Consultants Group in Boston, and was manager of renewable energy programs at Massachusetts Energy Consumer Alliance. Cameron Ferrey is president of Computers Across Borders, a non-profit NGO distributing computers to schools in renewable energy-powered developing countries on three continents.
There’s a schism between the needed expedited transition to renewable resources and the requirements of the U.S. constitutional system. The attempt by states to copy the European model of feed-in tariffs (FIT) to promote renewable power is running afoul of U.S. constitutional requirements. With 10 states now moving forward to implement or consider FITs, they will face the long reach of the U.S. Constitution, which controls states acting in a regulatory rather than proprietary manner, and which could set back state implementation efforts. The legal gauntlet already was thrown; Recently, the first legal challenge to state regulation of carbon emissions from power plants was filed and settled in favor of the challengers. In May 2010, California’s PUC and its three major investor-owned utilities took their battle over the constitutionality and legality of California’s FIT to FERC adjudication.