The Law of Energy Exports

Abstract

The fossil fuel industry has filed an increasing number of dormant Commerce Clause lawsuits against coastal states and cities that have rejected proposals for new coal and oil export facilities in their jurisdictions. These lawsuits are creating a wholly new “law of energy exports” that to date has been underexplored in the academic literature, even as it garners frequent newspaper headlines. This Article is the first comprehensive analysis of this evolving body of law. It evaluates the lawsuits and legal arguments surrounding energy exports and situates them in the context of rapid changes in domestic and international energy resource development and use. It then evaluates the implications of this growing body of law more broadly. Resolution of these lawsuits will affect the ability of states and cities to enact policies that affect a broad range of interstate markets for energy-related goods, such as coal, oil, natural gas, and renewable energy. The law of energy exports will also impact legal doctrines that apply to international trade and the power of the executive branch to shape judicial resolution of dormant Foreign Commerce Clause disputes.

This Article concludes that with regard to the energy export cases themselves, existing dormant Commerce Clause doctrine supports the authority of state and local governments to reject new fossil fuel export facilities within their jurisdictions if such actions are implemented to protect public health and the environment, and not for economic protectionist reasons. Moreover, the energy export cases could potentially establish a new jurisprudence with a more limited role for the dormant Commerce Clause to act as a barrier to nondiscriminatory state and local policies that affect interstate energy markets. Such a development would place more focus on Congress rather than on the courts or the executive branch, to resolve energy-related disputes between states.

Keywords: Commerce Clause, Dormant Commerce Clause, Land Use, Environmental Protection, Coal, Oil, Natural Gas, Export Terminals, Dormant Foreign Commerce Clause, Energy Exports, Federalism, Clean Energy Laws, Climate Change, Millennium Bulk Terminal, GHG Emissions

JEL Classification: K11, K32, K41, K23, Q3, Q4, Q5