Lewis & Clark Law Review
First Page
715
Abstract
The Supremacy Clause of the Constitution notwithstanding, western states have utilized their reserved Tenth Amendment Constitutional authority, upheld by federal circuit courts, arbitrarily to block their adjacent states’ sustainable infrastructure to address climate change. The Biden Administration set in motion a rapid electrification of the entire U.S. economy via three different new laws enacted sequentially in 2021, 2022, and 2023. A re-directed federal executive branch now oversees these programs and laws. This Article analyzes how each of those three laws suffers from a critical omission plaguing this most significant infrastructure program in the last half century—now forecast counter-intuitively by some experts to cause much more, rather than less, global warming in the next decade.
This Article analyzes the growing legal battle in the courts, and particularly playing out in western states needing to import sustainable renewable power, concerning the single most important U.S. technology. This Article highlights more than 600 decisions by cities and states arbitrarily exercising reserved Tenth Amendment Constitutional power over infrastructure and land-use, blocking renewable energy infrastructure. In addition, should they choose to do so, 90% of continental U.S. states can employ their rivers and highways as legal barriers arbitrarily blocking additional sustainable power infrastructure serving adjacent states. This Article’s final sections create and outline legal alternative routes under existing U.S. law to circumvent this bottleneck handicapping national and international sustainable climate policy.
Recommended Citation
Steven Ferrey,
Into the Legal “Twilight Zone”: State Tenth Amendment Jurisdiction Displacing Climate Supremacy,
28
Lewis & Clark L. Rev.
715
(2025).
Available at:
https://lawcommons.lclark.edu/lclr/vol28/iss4/3