70 Am. U. L. Rev. 271 (2020).

* Senior Staff Member, American University Law Review; Volume 70; J.D. Candidate, May 2021, American University Washington College of Law; B.A., International Relations and Economics, 2015, American University. I want to thank my Law Review colleagues for their tireless work on this piece. I am also profoundly grateful to my parents, Roberta and Timothy, who taught me to cherish our fragile planet. Most of all, I thank my wife, Elaina, who fills my life with love and laughter.

The United States’ role as a proactive leader on combatting climate change reached its high-water mark during the presidency of Barack Obama. At the United Nation’s 2015 Paris Climate Conference, the United States acknowledged the scientifically observed link between anthropogenic greenhouse gas (GHG) emissions and global warming and negotiated a deal with other nations to adapt to and prevent its consequences. Among the commitments that emerged from this deal was the United States’ ambitious but achievable target to reduce economy-wide GHG emissions 26 to 28% below 2005 levels by 2025. The most consequential effort to meet this goal was the Clean Power Plan, under which the federal government introduced standards that would help reduce GHG emissions in the electricity sector by improving power plant efficiency and transitioning from coal to natural gas and renewable energy. President Donald Trump has dramatically curtailed these environmental standards, among many others, such that the United States is no longer on track to honor its commitment to its peer nations.

In the absence of federal climate change leadership, state policies supporting the use of renewable energy for electricity generation are becoming increasingly essential for the United States to meet its emissions reduction target. Many states are rising to this challenge by passing legislation to source much or all of their electricity needs from zero-emission sources like wind, solar, or nuclear power. This policymaking model may no longer be viable, however, due to two recent rulings by the Federal Energy Regulatory Commission (FERC). In Calpine Corp. v. PJM Interconnection, LLC and ISO New England, Inc., FERC creatively reinterpreted its governing statute, the Federal Power Act, to require FERC to suppress the effects of states’ renewable energy policies.

As this Comment explains, these decisions fail to accommodate legitimate exercises of state power as the Federal Power Act (FPA) and Supreme Court precedent require. Consistent with the states’ traditional police power to protect their citizens’ health and welfare, the FPA expressly preserves significant authority for states to regulate local electricity generation facilities and electricity sales to in-state consumers. Supreme Court precedent has established a collaborative federalism model to resolve modern jurisdictional disputes between state and federal authority to regulate in the electricity sector. Under this model, states may subsidize preferred electricity providers within their territory, irrespective of the impacts of those subsidies on interstate electricity markets under federal jurisdiction, so long as those subsidies are not “tethered” to the recipients participating in interstate electricity markets. By negating state renewable energy policies that are constitutionally valid exercises of the states’ traditional police power as well as consistent with the Supreme Court’s “tethering” test, FERC’s recent rulings contradict these established principles. Accordingly, these rulings should be overturned, and FERC should accommodate—rather than suppress—states’ legitimate interests in combatting climate change.

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