Minimizing Constitutional Risk

Crafting State Energy Policies that Can Withstand Constitutional Scrutiny

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Written by the Harvard Environmental Policy Initiative, this paper provides policymakers with key lessons from recently filed lawsuits and suggestions on how states can work within their constitutional limits to achieve energy policy goals.

Since 2008, constitutional challenges to state energy policies have been filed in more than a dozen states. Legal disputes are highlighting the uncertainties about state and federal energy authority. Challengers argue that state policies are impermissibly regulating or discriminating against interstate commerce, or that state authority in this area is preempted by Federal law.

These lawsuits can help policymakers recognize the constitutional limits of state power and appreciate the risks of the tools available to achieve desired policy goals. Armed with this understanding, policymakers can identify alternative strategies for achieving the same policy goals, and assess strategies for relative constitutional risk. The paper’s Legal Appendix provides background about the key constitutional doctrines and four federal statutes that have been the subjects of recent preemption challenges.

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