Many states have been taking steps to increase the use of renewable energy sources such as wind and solar. However, because electricity is a commodity in interstate commerce and electrons once on the grid do not respect state borders, these state efforts have begun to collide with the dormant Commerce Clause (the principle that the Constitution’s grant of authority to Congress to regulate commerce among the states also limits the ability of the states to discriminate against other states)1 and related constitutional doctrines.
Increased renewable energy is (together with energy efficiency) the main way to reduce fossil fuel use, which in turn is the largest source of greenhouse gas emissions. Stark partisan divisions have paralyzed Congress from acting on climate change. Until this paralysis somehow ends, and either the federal government takes vigorous action on greenhouse gas emissions or the states are given a freer hand in doing so, the states will continue to be vulnerable to legal attacks over certain techniques to promote clean energy.
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