The jurisdictional battle rages on, with FERC and EPA squaring off against the states.
When Revolutionary War veteran Daniel Shays led an attack on the federal Springfield Armory in January 1787—the spark that ignited the federalist movement—he scarcely could’ve guessed that now, 225 years later, his spiritual descendants would still be fighting that very same battle.
OK, not quite the same battle. But nevertheless, the tension between federal and state authority has never really abated since the nation was founded. And in just the past few years, battles over jurisdictional boundary lines have flared up in many venues across the country. Fortnightly’s list of the Top 10 Legal Decisions of 2012 (below) illustrates this conflict along several of the industry’s contested fronts.
“There are a lot of stress points right now,” says Richard Lehfeldt, a partner with Dickstein Shapiro. “We’ve got a divided U.S., with the so-called organized markets and the rest of the country. And we have the traditional state police power, in the form of regulatory and legislative function, to ensure the resources the states want are actually developed. Superimposed on that are the evolving rules of the road, with federal oversight. It’s becoming an area of increased friction.”