Tightening the Legal ‘Net’: The Constitution’s Supremacy Clause Straddle of the Power Divide

This article analyzes Constitutional Supremacy Clause tensions in preempting state law that addresses climate change and the rapid warming of the Planet. Net metering laws, enacted in 80% of U.S. states, are a primary legal mechanism to control and mitigate climate warming. This article analyzes three recent federal court decisions creating a preemptive Supremacy Clause stand-off between federal and state law and presents a detailed state-by-state analysis of which those 80% of states’ laws could be preempted by legal challenge. If state net metering laws affected only ordinary technologies, this issue would not be front and center with global warming. However, state net metering laws are the most widely deployed U.S. incentive for renewable energy to address climate warming. This article examines and documents, state-by-state, that 75% of the states with questionable legal practices a decade ago have changed their laws to avoid legal prohibitions, while some others have not. At the federal level, the federal government recently revised regulations substantially restricted four decades of federal regulatory incentives for small renewable energy projects pursuant to the key statute that President Jimmy Carter characterized as the federal response to fight the “moral equivalent of war!” In its conclusion, this article provides a legal path for states to insulate their state laws from Constitutional challenge while still effectively addressing climate change. There is much at risk in the legal structure of U.S. state net metering laws, as world climate approaches the tipping points that will alter regional and global environmental balances irreversible within the time span of our current civilization.