The Tipping Point of Federalism

As the Supreme Court has noted, “it is difficult to conceive of a more basic element of interstate commerce than electric energy, a product that is used in virtually every home and every commercial or manufacturing facility. No state relies solely on its own resources in this respect.” And yet, the resources used to generate this electricity (e.g., coal, natural gas, or renewables) are determined largely by state and local authorities through their exclusive authority to determine whether to approve construction of a new electricity generation facility. As the nation finds itself faced with important decisions that directly implicate the source of our electricity, including climate change and grid reliability, the proper functioning of a system of exclusive state control over the siting of electricity generation is increasingly strained. Continued state control over the siting of electricity generation is particularly curious when viewed in relation to other infrastructure siting regimes. This Article traces the evolution of authority governing the siting of railroads, natural gas pipelines, wireless telecommunications, and electricity transmission, finding that they share many of the same federalism justifications for centralized control that exist in the siting of electricity. Yet, in every case except for electricity generation, Congress tipped the balance of power to allow for more federal authority over these siting decisions. This Article explores this disparity between state control over the siting of electricity generation and enhanced federal control in the other siting regimes. It concludes that this disparity may be at least partially explained by more initiative on the part of relevant federal agencies. Whereas federal agencies played a minimal role in affecting the tensions caused by increasing national interests in the other infrastructure regimes, federal agencies are taking significant steps to further the national interest in the siting of electricity generation. These actions can reduce the pressure to formally alter the federalism balance through congressional action, and can play a key role in the broader federalism literature surrounding the circumstances that foster tips from state towards federal authority