When Do State Transmission Siting Laws Violate the Constitution?

Abstract

Many state electric power transmission line siting laws present constitutional problems under the dormant Commerce Clause, specifically statutes that bar out-of-state applicants from seeking to build multi-state energy infrastructure projects in a state or give automatic rights of first refusal to in-state applicants. Dormant Commerce Clause jurisprudence may require state regulators considering transmission line siting applications to consider benefits beyond their jurisdictional borders — particularly in instances where developers propose infrastructure projects to create regional (as opposed to state-specific) benefits in energy markets or where out-of-state developers propose to build interstate lines. This Article assesses the merits and challenges of these kinds of legal challenges to state transmission line siting regimes.

Keywords: Dormant Commerce Clause, Energy Law, Electric Power, Transmission, Infrastructure, Renewable Power