Commerce Clause Limitations on State Regulation and Taxation of the Energy Industry

摘要

As the federal government reduces its control over the energy industry, states that wish to increase their energy regulations and taxes will find a more favorable constitutional climate than in the recent past. Commerce clause restrictions that once automatically invalidated state laws that regulated or taxed energy in interstate commerce have been loosened. The once moribund doctrine of concurrent federal and state authority over interstate commerce announced in Cooley vs. Board of Wardens has been resurrected in a modern form. With these changes has come a reaffirmation of the basic purpose of the commerce clause to prohibit discrimination by a state in favor of its citizens or against those of other states. The outcomes of New England Power Co. vs. New Hampshire and Maryland vs. Louisiana emphasize that the Court will not tolerate direct geographical favoritism in either regulatory or tax laws, even under today's easier commerce clause restrictions. The Court has rarely lost sight of the basic uniting force of the commerce clause. (ERA citation 08:002420)