Intrastate Preemption in the Shifting Energy Sector

Abstract

The U.S. energy sector is in a state of transition, at once moving toward cleaner energy resources, but also expanding the use of fossil fuels with new access to oil and gas plays. Although federalism concerns have dominated the literature, I argue here that the state-local relationship and intrastate preemption are shaping energy policy in important and under-examined ways. The energy transition to date has been marked by growth centered on hydraulic fracturing (fracking) and commercial wind development, both of which are mostly regulated at the state level. Local governments have exerted authority over both forms of energy production, although state-local tensions in the fracking context have been especially pronounced. Hundreds of localities have opposed or sought to contain the effects of fracking through official action, including bans and moratoria.

This striking trend, considered alongside local responses to wind development, provides a fresh lens through which to assess the role of intrastate preemption in the shifting energy sector. By approaching fracking and wind together, this Article represents a departure from the largely resource-segregated literature in favor of greater scholarly coherence on energy transition. As this Article explains, the doctrine of intrastate preemption, though it hews close to its federal analogue, is uniquely nuanced by the variability of state-local power structures. I develop the claim that the unpredictable legal environment resulting from this variability works to enhance the prospects for local governments, and even more localized property interests, to inform national energy discourse.

Keywords: preemption, energy law, wind, hydraulic fracturing, land use, local government