The Brave New Path of Energy Federalism
For much of the past eighty years, courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal-era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” a fixed and legalistic boundary between federal and state regulators. Rossi explores how three recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes. These recent decisions do not approach federal–state jurisdiction as an either/or proposition, but instead recognize it is concurrent for many energy transactions. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also has been a target of criticism, including in Justice Scalia’s last published dissent. Rossi defends concurrent jurisdiction as consistent with the language, history, structure, and primary purposes of energy statutes.