University of San Diego

San Diego Journal of Climate & Energy Law

Library of Congress Authority File


The United States contributes fifteen percent of the world’s greenhouse gas (GHG) emissions while making up only four percent of the world’s population. In recent years, the United States has made progress towards reducing the amount of GHGs we put into the atmosphere. However, there is the fear that the current administration is attempting to curtail regulations.

In 1935, the federal government passed the Federal Power Act creating two distinct jurisdictions over the energy market. This was in response to a gap in jurisdictional coverage between the states and federal government known as the Attleboro Gap. Interstate wholesale sales were to be regulated by the Federal Power Commission (now known as the Federal Energy Regulatory Commission (FERC)), and states would control energy generation, siting, and most importantly retail sales. For eighty-one years this dual sovereignty model governed how electric energy distribution was managed throughout the country.

In 2016, the Supreme Court ruled on two cases that changed the way we look at the divide between federal and state power in the energy industry. First, FERC v. EPSA established a new “bright line” rule and expanded federal authority to regulate energy markets by preempting a state challenge to a FERC order that “affected” retail sales. Then, Hughes v. Talen further extended federal authority by ruling that a state’s attempt to interfere within the sphere of FERC regulatory authority was preempted. The new concurrent jurisdiction approach to energy regulation seems here to stay. Two circuit courts recently applied EPSA and Hughes finding regulations enacted by the two states were not preempted by the FPA. This solidifies the new concurrent jurisdiction model EPSA and Hughes laid out.

States have increasingly enacted legislation to help combat climate change especially through GHG emission regulation. The Renewable Portfolio Standards (RPS) is a main method used by states. An RPS is a state-mandated percentage of electric energy that must be supplied to retail customers by renewable sources. California recently passed SB 100, which increased the percentage requirements of RPSs through 2045. Most notably, SB 100 mandates 60 percent renewable energy sources by 2030, and 100 percent by 2045. California is the second state in the country, after Hawaii, to create a mandate of 100 percent renewable energy.

In an administrative climate hostile to regulation combating climate change, California’s desire to push the envelope and make meaningful attempts to curb climate change is noble. However, its effort leaves the state open to federal challenges of preemption under the FPA, possibly leading to a one step forward two steps back precedent that would change states’ ability to combat climate change.