Obama energy plan could test state-federal relations

BY NICHOLAS JOY

President Barack Obama ’91’s plans for energy and climate-change policy could alter the balance of power between the federal and state governments, according to Adam White ’04, an Associate at Baker Botts LLP who specialized in energy litigation.

White spoke on Monday, April 20 at an event co-sponsored by the Harvard Federalist Society and the Harvard Journal of Law and Public Policy.

White, who clerked for Judge David Sentelle of the D.C. Circuit after his graduation from HLS, described his job- litigating constitutional and regulatory issues specific to the energy industry, particularly at the appellate level-as “the most interesting job in energy law.”

According to White, pursuing President Obama’s goals for energy and climate-change reform will require making choices about the allocation of power between the federal and state governments, creating tension that White described as having been “strangely overlooked.”

Because energy infrastructure often crosses state lines, the federal government may seek to pre-empt state regulations. Most statutes, however, give the states “out-and-out vetoes” over federal projects, White said.

This can create a set of complex interactions that White referred to as “the Adam White full-employment plan.””When Congress thinks its making things easy, it usually isn’t making things easy,” White said. “Congress needs to make clear what they are doing with state and federal power.”

White said that the Obama Administration’s energy plans, which include a “smart” energy grid and transmitting electricity long distances from wind, solar, and wave power sources to urban areas, will create a need to substantially increase federal regulation of power lines. Doing so, he added, will require defining the extent of the Federal Energy Regulatory Commission’s (FERC) authority.

“Congress could get very specific, or they could hand the ball to FERC,” White said. “If they don’t get specific, efforts will get bogged down in endless litigation.”

One question that White sees as being particularly challenging is whether FERC, a bipartisan board tasked with regulating and overseeing the energy industry, can use the power of eminent domain in its regulation of power lines.

In the end, White anticipates federal decision-makers “rushing to give power to the federal government.”

White also discussed the history of energy regulation. He traced the current regulatory structure back to the expansion of the nations’ railroad system. In the late 19th Century, the federal government moved to curb state attempts to regulate common carriers because they incorrectly imposed on interstate commerce. The first federal efforts to regulate the infrastructure of energy in the 1930’s owed much to these earlier actions.

White’s took a pragmatic approach to the proper relationship between the federal and state governments in regards to energy infrastructure regulation, saying that it is important to find a way to regulate that secures good government with the least burden.

According to White, energy regulation has two aspects to take into consideration – local interests and the national public good.

“States deserve and need to have a strong voice in the process,” he said, because of their unique understanding of local concerns.

Comments