Fire and Ice: World Renewable Energy and Carbon Control Mechanisms Confront Constitutional Barriers

By Ferrey, Steven; Laurent, Chad et al. | Duke Environmental Law & Policy Forum, Winter 2010 | Go to article overview

Fire and Ice: World Renewable Energy and Carbon Control Mechanisms Confront Constitutional Barriers


Ferrey, Steven, Laurent, Chad, Ferrey, Cameron, Duke Environmental Law & Policy Forum


ABSTRACT

Fire and ice will forge the future of the world. The constitutional battle in the United States vis-a-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.

Some say the world will end in fire, Some say in ice.... And [either] would suffice.

--Robert Frost (1)

I. FIRE AND ICE: WHEN RENEWABLES Go LEGALLY RIGHT AND WRONG

We are on the verge of world calamity by fire and ice. The "fire" is climate warming, cranking up the global thermostat to the tipping point of catastrophe. The "ice" is the melting of the polar ice caps--which contain more than ninety percent of the world's fresh water--in this global flame. Once melted, that fresh water is lost in the ocean brine. As set forth below, the solution must be rapid deployment of renewable resources in lieu of carbon-rich fuels.

However, there is a schism between the needed expedited transition to renewable resources and the requirements of the U.S. Constitution. The attempt by U.S. states to copy the European model of feed-in tariffs to promote renewable power is running afoul of U.S. constitutional requirements. The ten states now launching feed-in tariffs will face the stern hand of the Constitution, which could set back their efforts. The legal gauntlet has already been thrown: In the past year, the first legal challenge to both state Renewable Portfolio Standards (RPSs) and to state regulation of carbon emissions from power plants has been filed.

This article examines U.S. efforts to reduce greenhouse gas (GHG) emissions, the requirements of law, and the looming legal confrontation between state efforts and the Constitution. Because carbon control is important and urgent, this article suggests alternatives to feed-in tariffs, including RPSs, that escape these legal traps. It examines those legal impediments and charts routes around them to promote renewable power in the United States. It traces legal alternatives to promote rapid deployment of renewable resources in the United States, which may help prevent the world from ending in fire or ice.

A. The Constitutional Backstop

For the past two centuries, the Constitution has limited both good ideas and bad. …

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