The Dormant Commerce Clause as a Way to Combat the Anti-Competitive, Anti-Transmission-Development Effects of State Right of First Refusal Laws for Electricity Transmission Construction

To quickly decarbonize the electricity grid, new sources of renewable energy have to be connected to the grid. To connect these sources of energy to the grid, the rate of construction of new electricity infrastructure must increase quickly. The process to construct new electricity transmission infrastructure, however, is filled with chokepoints that slow its construction. State right of first refusal laws for transmission construction are one the things slowing the build out of the grid. These laws limit which companies can construct new transmission infrastructure to utilities and other companies already operating transmission infrastructure in a state. This Note, using a circuit split between the Fifth and Eighth Circuits as a jumping off point, argues that these state right of first refusal laws violate the dormant Commerce Clause because they serve as impermissible local presence requirements that prevent companies not already operating in a state from accessing and competing in a state’s markets. The Note concludes by analyzing how the Supreme Court would potentially rule if they resolved this Circuit split.