White Makes Case for Federal Authority in Energy Policy

October 9, 2009

The federal government, not the states, should have preemptive authority on energy infrastructure issues, according to Adam White of Baker Botts, who spoke at a Federalist Society event Friday.

Adam White is an associate for Baker Botts in Washington, D.C.

Having a single, accountable decision-maker is vital to developing infrastructure for renewable power, said White, who explained that he was speaking on his own behalf and not for the firm or its clients.

"In this case, I think that is the Federal Energy Regulatory Commission, " he said.

The federal government wants to develop renewable energy such as solar, wind and wave, he said. But that energy has to be gathered far from the areas they would serve.

"They have to be deliverable to load centers — otherwise we're just blowing in the wind," he said, quoting FERC chairman Jon Wellinghoff.

Because of this interest in renewable energy, the Obama administration and Congress appear to support reforming infrastructure policy that would give the government a larger say in energy policy-related issues, White said.

"For the first time, there are actually cabinet-level meetings [with FERC] planning national energy policy, " he said. "The federal government seems poised to take unprecedented power over interstate transmission."

However, White acknowledged that it's important for states to have a voice.

"When you see a straight line on a map, you know that it was drawn by somebody who's never been anywhere near where that line is, " White said, quoting a former professor in acknowledging the potential pitfalls of a federal government too removed from localities to be familiar with local concerns.

"Everybody's interest is best served by bringing in the states and local governments and giving them meaningful opportunity to contribute to the process, even if in the end the federal government has final authority over a project, " he said.

White said that in the early 20th century the power to regulate energy was concentrated in the government. That power shifted to the states over time through federal environmental programs like the Clean Water Act. But now the concentration of authority has moved back to the federal government again.

White said these decisions can be very complicated. "It seems cut and dried but it is incredibly nuanced."

Caleb Jaffe '01

Caleb Jaffe '01, an attorney at the Southern Environmental Law Center and a lecturer at the Law School, responded at the end of the lecture.

"The big picture takeaway of what this emphasizes is really the difference between federalist principles as a normative value and federalist principles as a pragmatic allocation of resources, " Jaffe said.

"In practice, we see that regardless of what people might want to write about in law review articles, in the real world of litigation...it is the pragmatic view of federalism that every single time wins out, " he said.

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