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ATI v. Colorado: How the Commerce Clause Provides Guidance at the Confluence of Energy, Environmental, and Constitutional Law Open Access

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For nearly two decades now, congressional efforts to pass a viable comprehensive climate change bill have stalled and failed repeatedly. The battle against climate change, however, as a global problem, which has effects upon the global population, does not necessarily have to begin with the federal government. Indeed, as Washington has dragged its feed, states have taken the initiative and passed a variety of legislation seemingly meant to address the environmental impacts economic and technological progress is having upon our environment. However, the question now is: from where does the ultimate solution come? If it begins with the states, is that where it ends?The most prevalent of the states' efforts so far has been the renewable portfolio standard ("RPS"). Enacted in 30 states and the District of Columbia, RPSs require a certain percentage of total electrical production be derived from renewable energy. Although RPSs are popular and laudable efforts by the states, the evolution of the electrical industry may not be well suited for patchwork, state-by-state regulation. The traditional landscape of electric power generation and, thus, the local interest in such generation, has outgrown the traditional state-centric model. Through a consideration and analysis of the principles underlying our federalism structure, the impacts the Constitution may have upon state renewable mandates, the current litigation ongoing in the District Court of Colorado, and the emergence of the post-modern electricity industry, will suggest that, in order for U.S. energy to thrive and remain a world leader, the RPS will have to be delivered from the one source capable of comprehending and addressing this increasingly national interest - the federal government.

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