Gone with the wind: State preemptive power.

Author:Ferrey, Steven

"I sell here, sir, what all the world desires to have--power." (1) --James Boulton (co-inventor of steam engine), England, 1776 I. IN THE WIND

Wind is the dominant form of new power generation installed every year for the past five years. (2) It is now part of the American's energy future. Siting wind turbines becomes a matter of gaining approval traditionally for positioning power generation and its interconnection to the utility grid from municipal zoning and land-use authorities. (3) There is no power that is more local than the police power; local communities have always been the primary exercisers of the police power to regulate what gets sited where. (4) And many towns and cities are blocking or frustrating the siting of wind power turbines pursuant to the local police power over local land use. (5) Half of the states are moving to preempt, pursuant to state constitutions and law, the local power over wind and/or new power generation siting. This is the new legal federalist confrontation regarding legal jurisdiction over energy, power, and renewable energy. A decision on energy federalism in 2016 was decided by the Supreme Court. (6)

There is no technology that matters more than electric power. Electric power was recently deemed, aside from the wheel, to be the second most important invention in history and the single most important invention during the last millennium. (7) Nothing is more indispensable than electricity in the operation of the modern economy. (8) And wind has been the primary new power source deployed in America, constituting 24% of all new generation. (9)

Wind power has substantially increased. (10) In 2012, wind energy was the most deployed new United States electricity generation capacity, contributing 43% of all new electric generation. (11) In 2015, more than half of new generating capacity was wind energy. (12) It is expected to increase to 14,000 megawatts by 2020. (13) With a delivered value in the United States of approximately $375 billion annually, (14) exceeding the total amount of corporate income taxes collected in the United States, (15) electricity is critical.

This article analyzes how the federalist United States system of law, melded with state constitutional law, regulates and controls the siting of new renewable energy resources, focusing on the lead United States and world renewable energy source under development--wind turbines. This pierces the power of federal and/or state government to preempt the local police power of what energy uses get sited on local land. Energy moves at the speed of light, and preemption, as a matter of law, is constitutional. This article navigates the creases between Tenth Amendment local control over land, and constitutional preemption.

Section II sets the technical framework: It examines what is electric power, how it is different that every other form of energy, and how it is treated differently in the law than every other United States commodity. Federal law and the constitution divides authority over different aspects of electric power into discrete legal tranches of federal, state, and local authority.

From Section II's technical foundation, Section III reframes the structure of American energy law. It segregates federal authority under the Federal Power Act over transactions and movement of power, from exclusive state jurisdiction over the facilities and hardware which produce and move power, and from local police power jurisdiction with regard to land-use and necessary environmental permits. Federal FERC Orders 888, 2000, 2003, 764, and 1000, are analyzed as to their impact on the power industry. While the federal government exercises authority over off-shore wind projects, the unsuccessful recent federal attempt to exercise federal jurisdiction over siting of transmission lines on land is examined, as is the checkerboard of state regulation over new power facilities.

This United States federalist segregation of power authority has caused major conflict and friction in American law, which Section IV explores. Section IV analyzes whether local governments exercising their police powers and land-use ordinances, must cede power to the states to site energy projects, and particularly renewable wind energy projects. We examine the legal basis of municipal power, and the profound split among the states as to whether they do or do not attempt to preempt, under state constitutional authority, this local power over energy facilities. For detail and depth, Section IV focuses on one of the most sophisticated states, to examine the dual preemptive authority embedded in its state statutes, and how the courts have interpreted this extension of power. Section IV then pivots to take a fresh look at the federalist scheme of federal, state, and local jurisdiction surrounding and competing regarding siting of the Cape Wind energy project.

Section V expands the analysis to a multi-state national dimension. We examine every state, dividing that half of the states that don't preempt local land-use authority regarding energy, and the half that do. The analysis contrasts the how and when state preemption is deployed and the different standards employed in different states. The section digs deep into how each of the state's implements and defends preemption, and how the courts adjudicate the decisions that the states make. This section examines energy siting preemption, and then extends to particularly focus on renewable wind energy and the energy future.

Section VI brings everything into focus on the second most important invention in history. First, in Section II, we create a technical power foundation.


    The use of electricity is seemingly irreplaceable in the modern day. (16) Indeed, the American economy itself runs on electricity. (17) Power moves according to Kirchoffs Law (18) almost at the speed of light on one interconnected energized grid, to which people can connect. (19) The electric power grid must constantly balance supply and demand to keep the grid operational. (20)

    Electricity and the legal stresses on the electric transmission system are unique. Unlike all other forms of energy, moving electrons cannot be efficiently stored as electricity for more than a second before the energy is lost as waste heat. (21) Therefore, the supply of electricity must match the demand for electricity over the centralized utility grid on an instantaneous, constant, real-time, and ongoing basis, or else the electric system shuts down or expensive equipment is damaged. (22) Either too much or too little power causes system instability on a second-by-second basis. (23) A loss of power would disrupt communication and transportation, heating and water supply, and hospitals and emergency rooms, depending on their amount of back-up generation. (24) A constant simultaneous balancing of supply and demand on the utility grid system is essential. (25)

    Everyone wants electric power, and it is the signature of a modern economy. (26) However, many persons and some communities do not appreciate the hardware of power. (27) Power is nothing without these interconnections. And here, the law creates a "police power" to regulate how we ensure electric supply and distribution.

    Wind energy is a clean, renewable resource that can be produced domestically. (28) Wind turbines consist of two or three blades affixed to a rotor. (29) The rotor is mounted on a shaft that can be anywhere from one hundred to four hundred feet tall. (30) The wind causes the blades to spin, which turns the rotor. (31) The rotor is attached to a generator, which creates electricity. (32) Once a wind turbine is running it simply needs routine maintenance and repair. (33)

    The U.S. Department of Energy calculated that approximately 20% of wind power could be accommodated on the grid, which is about the amount of back-up reserve margin in regional power systems, without requiring additional storage or other mechanisms to accommodate intermittency. (34) And to make the interconnections between generators and the grid to deliver electric power, many states have granted regulated power companies, utilities which are privately-owned companies, the power to exercise eminent domain and take or use private property by easement and/or fees simple. (35)

    The network is the delivery of power. The high-voltage transmission network was recognized by engineers "as the most important engineering feat of the 20th century." (36) A study by the United States Department of Energy forecasts that 39,000 miles of additional high-voltage transmission circuits will be constructed within the current decade before 2020. (37) Annual "[u]tility investment in transmission... [was] $6 billion... in 1980 declined to $3 billion annually in the late 1990s, and rose to about $8 billion by 2007." (38) One study "estimates that it may take as much as $1.5 trillion to update the grid by 2030." (39) By any measure, this is a large construction project at large cost. (40)

    However, recently, the structure of how and who accomplishes these essential functions has changed fundamentally. Many of these states have taken their regulated utilities out of the business of generating power, in favor of purchasing it wholesale in the states' new deregulated market. (41) This began to change with the enactment of the Public Utility Regulatory Policies Act of 1978. (42) Beginning in 1998 in Massachusetts, Rhode Island, and then spreading to 13 states, competition and partial deregulation of retail power was adopted. (43)

    In a significant number of these 13 states, this resulted in the regulated monopoly utilities selling their generation units to independent power companies. (44) Now, independent power companies construct more new power generation each year than the regulated utilities. (45) And this trend is expected to continue.


    1. Federal Jurisdiction over...

To continue reading