Abstract 

This paper explores the complex interplay between federalism and state sustainability policies in the United States through the lens of the Dormant Commerce Clause. It investigates how the Dormant Commerce Clause has been applied to various state sustainability initiatives, including renewable portfolio standards and local food procurement policies. Despite the compelling state interest in promoting energy independence and local economic development, the Dormant Commerce Clause often stands as a barrier to such localized initiatives. Through historical and contemporary analyses, this paper examines the evolution of the Dormant Commerce Clause, its impact on state policies, and the legal interpretations that have both constrained and enabled state actions. The paper proposes model recommendations for aligning state sustainable economic policy goals with Dormant Commerce Clause constraints, suggesting legal and policy frameworks that could enhance the ability of states to pursue environmental and economic objectives without infringing on interstate commerce. 

Table of Contents 

I. Introduction 

II. History of the D/CC 

A. The Commerce Clause in se 

B. Sitz im Leben  

C. Contemporary Readings

D. Creation of the Dormant Commerce Clause 

III. Doctrines Surrounding the D/CC 

A. Interpretations of the Commerce Clause 

1. Several Types of Preemption 

2. Contemporary Balancing Tests 

B. Branches of the Dormant Commerce Clause 

C. Exceptions to the D/CC 

1. Congressional Approval and Interstate Compacts 

2. Market Participant Doctrine 

3. Compelling Governmental Interests 

 IV. Carbon-Intensive Sector D/CC Jurisprudence 

A. Electricity 

B. Agriculture and Food Systems 

1. Land Ownership 

2. Agricultural Waste and Fertility 

3. Sales 

4. Transportation 

V. Conclusion 

VI. Model Recommendations 

A. Carbon Analysis of Court Decisions 

B. Non-price criteria, non-state criteria 

I. Introduction 

Federalism purports to hold diverse sovereigns together under a single authority, for the purpose of maintaining efficient and uniform regulation and control, leading to more just outcomes. The Dormant/ Commerce Clause doctrines are among the tools used to preserve the powers of Congress to regulate the economy to the benefit of the whole, and to preclude states from enacting protectionist economic policies. These doctrines practically mean that state and local governments may not enact policy that unduly impacts “interstate commerce”—the flow of goods and services within the United States. This doctrine has been applied to intra-state commerce, and even to homesteaders. 

As the climate and inequality crises continue to escalate, it is critical that local economies grow more resilient to the emerging socioecological landscape. Circular economies often facilitate movement toward systems that adapt to and mitigate the impacts of climate change, in addition to securing local supply chains. Yet the Dormant/ Commerce Clause doctrines stand in the way of developing beneficial circular economies. In renewable portfolio standards, may state legislatures require certain percentages of energy be sourced within the state? Even where the state has a compelling interest in energy independence or circulation of energy dollars? In the food system, may legislatures require public institutions to procure local food? Can local governments require natural gas be sourced from local waste management? 

For the purpose of this research, the term “sustainable economic policy” refers to those policies which tend to reduce CO2 emissions, promote local production and consumption of goods and services, and foster more circular and resilient local economies. This research will identify key issues brought to the research; examine the history of the Dormant/ Commerce Clause (D/CC) doctrines and the doctrine that surround it; identify existing exceptions to the doctrine; survey carbon-intensive sectors in Federal courts to determine whether the doctrines are frustrating sustainable economic policy efforts; and, if appropriate, recommend strategies for overcoming these challenges. The policy issues explored below include: 

1. Whether the D/CC frustrates sustainable economic policy, and if so, in what economic sectors; 

2. Whether the D/CC is functioning in a manner consistent with its original purpose; and, 

3. Whether state and local policy makers can develop sustainable economic policy in a manner that avoids conflict with the D/CC. 

II. History of the D/CC 

A. The Commerce Clause in se 

The Commerce Clause is found in the U.S. Constitution at Art. I § 8 cl. 3. This text provides in relevant part, 

“The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” 

These few lines lay the legal foundation for Federal regulation of commerce in the United States. 

B. Sitz im Leben1 

This text is situated in Article I, which establishes Congress and creates legislative procedures and powers. Art. I § 8 enumerates powers of Congress, and clause 1 provides that Congress may levy taxes uniformly for Common Defense and General Welfare.2 On the whole Art. I § 8 represents the power of Congress to manage military and trade affairs, culminating in the Necessary and Proper clause which authorizes lawmaking to give effect to former clauses, all of which are reinforced by the Supremacy Clause.

This research will not rehearse the political history giving rise to the Revolutionary War, or the thirteen years between the Declaration of Independence and the First Congress under the Constitution we know today, although these histories certainly provide color to the big picture. This research will however explore foundational documents. In The Federalist Papers, Alexander Hamilton identified “principal purposes to be answered by union,” which include in relevant part “the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.”3 He bemoaned the Articles of Confederation because they did not give the Confederation the power to regulate commerce, which led foreign countries and commercial agents to leverage the economic interests of one State against other States.4 

Hamilton reasoned that a united Federal government would counteract this market pressure–rather than States bidding against each other for access to goods, foreign actors would bid against themselves “for the privileges of our markets.”5 To Hamilton, this justified “prohibitory regulations, extending… throughout the States.”6In his view, this would have a cumulative and aggregating effect on the national economy. 

“An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part.”7 

Not only did Hamilton anticipate increased economic velocity from the free circulation of goods, he also saw diverse products as providing a stabilizing benefit to the whole. 

“Commercial enterprise will have much greater scope, from the diversity in the productions of different States. When the staple of one fails from a bad harvest or unproductive crop, it can call to its aid the staple of another. The variety, not less than the value, of products for exportation contributes to the activity of foreign commerce.”8 

Thus Hamilton did not conceive of the powers established by the Commerce Clause merely as a defense against the economic strategy of foreign nations, but also as a means of ensuring more uniform access to goods and services in times of crisis. He saw diversity and variety in production as paramount to economic success.9 

C. Contemporary Readings 

The purposes of this clause articulated by courts today10 are regulation of interstate commerce by Congress alone, and to maintain the free flow of commerce within the United States.11 The Courts have adopted a liberal interpretation of this Commerce Clause power to allow Congress to meet the changing and complicated nature of regulating commerce.12 The Commerce Clause gives Congress authority to regulate commerce among the several States, and the Courts have expanded this definition to include the use of channels of interstate commerce, such as roadways, rivers, railways, pipelines and electricity transmission.13

The Supreme Court of the United States (SCOTUS) has also declared that Congress “is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.”14 As interpreted by the Courts, the Commerce Clause restricts States from burdening free flow of commerce.15 Thus the States’ powers to regulate commerce–including its instrumentalities, persons or things, and channels–is preempted by the Commerce Clause, leaving open only the historic police powers attendant to States’ rights. 

D. Creation of the Dormant Commerce Clause 

The Negative or Dormant Commerce Clause is not found in the Constitution; in fact, it does not exist but for Judicial inferences from the Commerce Clause. This doctrine describes a string of holdings which stands for the principle which SCOTUS articulated in Baldwin, that “one state in its dealings with another may not place itself in a position of economic isolation.”16 This comports with Hamilton’s vision to promote economic “motion and vigor from a free circulation of the commodities,”17 although SCOTUS emphasized a new element of State restraint–the prevention of isolationism per se, not the collective power of the Union. 

This is important to State sustainable economic policy because States often articulate a legitimate governmental interest–such as promoting a wavering sector which employs many voters in the State, reducing carbon emissions of electricity generators in the state, or supporting local farms owned by local farmers–which are at risk of being interpreted as isolationist by the courts, and are therefore impermissible. It tends to widely expand the scope, so that even if Congress has not “occupied the field” with legislation specific to the interests articulated by the States, the courts can strike down legislation on the basis that the commerce powers are reserved to the Federal government, so that the courts find non-regulation as Congressional prerogative.18 

III. Doctrines Surrounding the D/CC 

A. Interpretations of the Commerce Clause 

“Preemption is a doctrine of American constitutional law under which 

state and local governments are deprived of their power to act in a given area, 

whether or not the state or local law, rule or action is in direct conflict with federal law.... 

The analysis of a preemption dispute focuses upon statutory construction ... 

in the context of a constitutional framework of sovereignty, 

commerce regulation, or other predicate for federal powers.”19 

Preemption stands for the principle that State laws and local ordinance are invalid if they place an undue burden on interstate commerce. There are several ways in which Federal courts recognize preemption, with the effect of preserving the exclusive power of Congress to regulate commerce, even where Congress declines to do so. These include: 

● Express preemption – Congress specifically prohibits states from legislation in statutory language20 

● Implied preemption – Congress impliedly prohibits states from legislation in statutory structure or purpose21 

○ Field preemption – Congress enacts legislation completely and pervasively, “occupying the field”22 

○ Conflict preemption – Congress did not necessarily intend to occupy the field, but state law actually conflicts with federal law23 

○ Obstacle preemption – Congress’ purposes are obstructed by state law24 

The courts apply strict scrutiny to cases which burden interstate commerce, unless they find an exception to apply. 

B. Exceptions to the D/CC 

There are three major exceptions to the D/CC. The first is the Market Participant doctrine, which courts apply when they find State or local government is acting as a market participant rather than a regulator.25 The second is Congressional Approval for Interstate Compacts, which is frequently seen in relevant parts in managing interstate water bodies, oil and gas, parks, sewage disposal, fire prevention, transportation, and radioactive waste management.26 

The third exception to the D/CC and the exception which will be treated by this research is when the court finds  “compelling” or “legitimate governmental interests.”27 Where a court finds such an interest exists, the court attempts to balance the demands of strict scrutiny with governmental interests. 

IV. Carbon-Intensive Sector D/CC Jurisprudence 

       In 2022, the Environmental Protection Agency identified key sectors contributing significant percentages to total emissions, as follows in the graph below. This research will analyze case law relating to the D/CC as it acts in the electricity and agricultural sectors. As illustrated in the end-use emissions graph, electricity-related policy significantly impacts both industry and residential and commercial buildings. This will continue to grow as the transportation and agricultural sectors undergo beneficial electrification. 

The following sections are organized by year to illustrate the evolution of the treatment of the D/CC in each sector. 

A. Electricity 

The energy sector is complicated both by federalism generally as well as by specific federal policy. For instance, the Federal Power Act, the Energy Policy Act, the Public Utilities Regulatory Policy Act, and more all impact the relationship between state and federal authorities. While several of these cases also deal with complaints or authorizations under these statutes, this section will focus on D/CC holdings. 

– 2013 – 

PPL EnergyPlus, LLC v. Hanna: New Jersey enacted the Long-Term Capacity Pilot Project (LCAPP) Act, which awarded points to electricity generators who provided additional community benefits. The legislature attempted to incentivize construction of generation facilities where reliability concerns were present. Plaintiffs complained that the community benefit points awarded under the LCAPP disadvantaged out-of-state generators. The District Court of New Jersey found that LCAPP did not violate the D/CC, because New Jersey was located in a locational deliverability area, which generally has higher capacity prices than other areas in the relevant market due to transmission costs. One of the ways reliability issues could be resolved was through additional generation in or near the location where the reliability issue would occur, and thus the incentive for community benefits to generators in New Jersey was reasonable.29 

– 2015 – 

Energy and Environment Legal Institute v. Epel: Colorado enacted a Renewable Portfolio Standard (RPS) which required electricity utilities who sell to Colorado consumers to procure 20% of their electricity from renewable energy generators. Plaintiff, an energy advocacy group primarily concerned with climate policy impacts on free-market policy, complained that the RPS unfairly discriminated against out-of-state coal producers.30 Plaintiff contended that the interconnected grid served 11 states, which gave the RPS the effect of 

 regulating out-of-state utilities who feed their electricity onto the grid. Because out-of-state utilities would procure renewable energy in order to sell into Colorado, they would not procure electricity generated by coal.

The Tenth Circuit Court of Appeals analyzed the RPS through the Baldwin test, and held that the RPS did not violate the D/CC because “it isn't a price control statute, it doesn't link prices paid in Colorado with those paid out of state, and it does not discriminate against out-of-staters.”31 The Court took note that non-price regulations may in fact impact price in and out of the state, but finally held that Baldwin is only triggered when price control statutes discriminating against out-of-staters would impact interstate commerce.32 

– 2016 – 

North Dakota v. Heydinger: In 2007, the Minnesota legislature enacted the Next Generation Energy Act (NGEA), which prohibited importation of electricity from a new large energy facility, or entering into a new long-term power purchase agreement, that would increase statewide power sector carbon dioxide emissions.33 Entities could seek an exception by demonstrating to the Minnesota Public Utilities Commission's satisfaction that it would offset carbon dioxide emissions. Plaintiffs, the neighboring State of Nebraska and several electric utilities providing service in Minnesota, complained that NGEA violated the D/CC because it had an extraterritorial effect.34 

The Eighth Circuit Court of Appeals held that NGEA violated the D/CC because it regulates activity and transactions taking place outside of Minnesota.35In a sophisticated and determined effort to focus on the wrong issue, the Court opined, 

“In the regional MISO transmission grid, a person who imports electricity does not know the origin of the electrons it receives, whether or not the transaction is pursuant to a long-term purchase agreement with an out-of-state generator. As a State expert described the energy market, the contract path between the importer and generator represents a flow of dollars, not a flow of electrons. In the MISO grid, electrons flow freely without regard to state borders, entirely under MISO's control. Thus, when a non-Minnesota generating utility injects electricity into the MISO grid to meet its commitments to non-Minnesota customers, it cannot ensure that those electrons will not flow into and be consumed in Minnesota.”36 

Thus the Court totally obfuscated the actual issue–a legitimate government interest in promotion of low- and zero-carbon electron generation, not control of the flow of electrons across an interconnected grid. The Court even referenced the “non-price standards” which survived the balancing test in Epel.37 The Court clearly had little understanding of capacity markets and gave no weight to the attributes of specific generation fuel sources, 

which gave rise to the REC market. The Court dismissed the Minnesota legislature’s policy effort by describing NGEA as a policy of “increasing the cost of electricity by restricting use of the currently most cost-efficient sources of generating capacity.”38 With this decision, the Court negated the will of Minnesota voters and robbed them of their ability to achieve a cleaner electricity grid through legislation. 

– 2018 – 

Electric Power Supply Ass’n v. Star: In 2017, Illinois enacted a statute39 which established a zero emission credit (ZEC) program to subsidize nuclear utilities producing electricity. The cost of ZECs is prescribed by statute, which has a price floor tied to estimates of the social cost of carbon emissions,40 while the price ceiling is derived from average energy prices at interstate power auctions41 conducted by regional transmission organizations (RTOs) that are regulated by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act (FPA). The Illinois legislature expressed concern both that the nuclear facilities would close, leading to lost jobs and sunken assets; and that this would result in dramatic CO2 emission increases. 

Plaintiffs complained that the ZEC program violated the D/CC because the ZECs benefited Illinois firms, thus disadvantageous to foreign power producers.42 When the case reached the Seventh Circuit Court of Appeals, the Court found that the ZEC program did not unconstitutionally discriminate against interstate transactions in violation of D/CC, because the FPA authorized states to regulate local generation of electricity within their borders. ZEC recipients and consumers were both in Illinois, and the price effect of the ZEC program was felt wherever power was used, but all power from inside and outside Illinois went for the same price in interstate auction.43 Thus the statute did not violate the D/CC, because Congress had authorized States to regulate generation within their state in the FPA, and the act had no impact on power for sale at interstate auction. 

Allco Finance Limited v. Klee: Connecticut enacted a renewable portfolio standard (RPS), requiring electric utilities in the state to either produce renewable energy themselves or buy renewable energy credits (RECs) from other renewable energy producers located within the region. Plaintiff, a renewable energy producer located in Georgia, complained that the regional REC requirements violated the D/CC because it precluded out-of-region REC sellers from participating in the Connecticut REC market.44 Defendant argued that Plaintiff could not sell electricity into ISO-NE, the regional grid that serves Connecticut; and that even if they could, the characteristics of their RECs would not qualify under Connecticut’s RPS. Thus the RPS distinguished between materially different products, in that RECs generated on a different regional grid which did not comply with the statutory definitions of Connecticut’s REC requirements were not the same product as a REC which had the additional characteristic of promoting regional renewable energy development and environmental improvement. 

The Second Circuit Court of Appeals declined to apply strict scrutiny, and instead utilized the deferential balancing test created in Pike.45 The Court found that Connecticut’s RPS did not violate dormant Commerce Clause as applied to the Plaintiff because the RPS served a legitimate governmental interest in promoting increased production of renewable power generation within the region.46 This tends to protect health, safety, and reliable access to power for Connecticut's citizens. The Court also noted that regional grids are created and governed by the Federal Energy Regulatory Commission (FERC), and as such, Connecticut designing an RPS program within that regional grid is deferential to Federal policy.47 The RPS program had only an indirect adverse effect on interstate commerce by treating different products differently in a nondiscriminatory fashion. Therefore it did not constitute a violation of the D/CC.48 

– 2023 – 

Energy Michigan, Inc. v. Scripps: In 2016, the Michigan legislature passed Public Act 341, which created a State Reliability Mechanism “intended to ensure the reliable delivery of electricity to the state's retail consumers.”49 Pursuant to this act, the Michigan Public Service Commission (MPSC) issued orders requiring local electricity utilities to own or procure a certain amount of locally-generated electricity. The District Court for the Eastern District of Michigan found that the local procurement mandate did not have the effect of discriminating against interstate commerce in violation of Commerce Clause.50 The Court found that any load servicing entity that wanted to sell electricity in Michigan was subject to individual local clearing requirements, which burdened in-state utilities and out-of-state suppliers equally.51 The Court found after performing a Pike balancing test that the burdens were not excessive compared to the benefits, and that ensuring grid reliability was a legitimate local interest which “cannot be adequately served by reasonable nondiscriminatory alternatives.”52 

B. Agriculture and Food Systems 

   – 1915 – 

Sligh v. Kirkwood: Florida sought to criminalize the sale of contaminated or unfit produce. Plaintiff complained that produce is an article in interstate commerce, and therefore the statute was invalid. SCOTUS held that the police power exercised by the State did not violate the D/CC. They stated, 

“Such articles are not merchantable; they are not legitimate subjects of trade and 

commerce. They may be rightly outlawed as intrinsically and directly the 

immediate sources and causes of destruction to human health and life. The 

self-protecting power of each state, therefore, may be rightfully exerted against 

their introduction, and such exercises of power cannot be considered regulations 

of commerce prohibited by the Constitution.”53 

Thus SCOTUS laid a foundation for protection of health and human life as a legitimate state interest in agriculture sufficient to overcome a D/CC challenge. 

      – 2006 – 

Jones v. Gale: Nebraska passed a constitutional amendment prohibiting farming or ranching by corporations and syndicates, except for family farm or ranch corporations partnerships in which at least one family member was residing on or actively engaged in agriculture. This policy sought to address the negative impacts of absentee ownership by promoting local ownership. 

The Eighth Circuit Court of Appeals found that the amendment violated dormant Commerce Clause because it was discriminatory on its face and favored Nebraska residents and people in close proximity with their family farms or ranches. The court found that the negative effects on the social and economic culture of rural Nebraska could be addressed through land use and environmental regulations.54 

  – 2023 – 

National Pork Producers Council v. Ross: California enacted a statute which prohibited sale of pork from animals confined inconsistent with California standards. Plaintiff complained the statute had an “extraterritorial effect” because it mostly impacts out-of-state transactions. 

SCOTUS analyzed the claim with the Pike balancing test, and held that a statute that does not purposefully discriminate, but nevertheless has an extraterritorial effect, does not violate the D/CC if the putative local benefits outweigh the burden imposed on interstate commerce.55 

V. Conclusion 

In permaculture,56there is an important maxim: build wells, not fences.57 The lore goes that an Australian rancher had trouble keeping cattle on their land. For years, the rancher battled the cattle’s tendency to stray by erecting fences at great expense. One day the rancher dug a well, bringing cool wellspring waters to the surface. The cattle loved drinking the cool water rich in minerals, so much that the rancher noticed them consistently grazing near the well. The rancher shifted their strategy from correcting bad actors to rewarding the right behavior. They no longer had to mend or install fences, because the cattle naturally stayed close to the water. The cattle, the soil, and the ranch’s bottom line all thrived. 

While Hamilton initially conceived of the commerce powers of the federal government as a means of unionizing against foreign markets, the D/CC tradition took a turn inward across 200 years of jurisprudence. For many years the Courts tended to interpret the commerce powers as a Federal protection against State interests. At many times, this trend threatened to quash sustainable economic policy efforts at the State level.

More recent jurisprudence demonstrates a slow shift in contemporary understanding of local economic interests as legitimate State governmental interests. In the energy sector, Scripps shows promise in cultivating local energy self-determination by procuring energy from local generators, which is frequently renewable. In the agricultural sector, Pork Producers promises to permit states to discriminate against products on the basis of additional characteristics in production. 

VI. Model Recommendations 

A. Carbon Analysis of Court Decisions 

One curious point which could prove fruitful in advocacy is to develop a model which projects a carbon footprint analysis of particular policy and legal decisions. While it is necessarily speculative, it could begin to illustrate, especially to voters and decision-makers, the impact of particular policies on climate goals. In energy, such a model should measure things like line-loss, CO2 emissions, additional transmission infrastructure, and fuel price differentials. In agriculture and the food system, such a model should include the emissions associated with transportation of agricultural products to and from the market. This would allow Congress to weigh existing federalism jurisprudence against Federal sustainable economic policy goals, such as those articulated and reaffirmed in the Paris Agreement, and timely intervene. 

B. Authorize Transmission Territorial Compacts 

Congress could circumvent the challenges in Allco by permitting States to form interstate renewable energy compacts which bind member States to a renewable energy standard which applies within the independent system operator territory. This would create a form of cooperative federalism which would promote regional energy self-sufficiency and allow voters in the region to weigh the air quality, distributed generation, and circular economic benefits of renewables against existing generators and rates. If the USDA or other Federal agency were to define regional foodsheds similar to FERC and the ISOs, this would give States a basis to promote regional farmers within the foodshed with incentives or procurement requirements. 

C. Non-price criteria, non-state criteria 

In State offshore wind solicitations, many State legislatures are utilizing “non-price criteria” to identify and reward project proposals that help the State reach other important policy goals, such as protecting biodiversity.58 In Hanna, Allco, Scripps, and Pork Producers, state legislatures articulated other legitimate government interests by distinguishing characteristics of products on the basis of production and location. By expressly focusing policy efforts on production methodologies and locational additionalities, States can foster sustainable economic policy while avoiding the D/CC. 

___________________________

1In German, literally “setting in life.” Commonly used in theological scholarship, this term generally refers to analyzing the historical and cultural contexts that give rise to a particular text. 

2 U.S. Constitution Art. I § 8 cl. 1. 

3 Alexander Hamilton, Federalist No. 23. “The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union,” From the New York Packet. December 18, 1787. 

4 Alexander Hamilton, Federalist No. 22. “The Same Subject Continued: Other Defects of the Present Confederation,” From the New York Packet. December 14, 1787. 

5 Alexander Hamilton, Federalist No. 11. “The Utility of the Union in Respect to Commercial Relations and a Navy,” For the Independent Journal. 

6Ibid. 

7Ibid. 

8Ibid. 

9IDIC. 

10 Perhaps merely anecdotal, but as a life-long scholar with particular interest in civil government, I have never heard anyone refer to the “collective bargaining with other nations” logic which Hamilton et al. articulated in The Federalist Papers. As case law describes below, the Commerce Clause today is typically understood to keep States from interfering with Federal purposes, not protect States from foreign Nations. 

11 Parker v. Brown, U.S.Cal.1943, 63 S.Ct. 307, 317 U.S. 341, 87 L.Ed. 315. 

12 Tennessee Gas Transmission Co. v. Thatcher, W.D.La.1949, 84 F.Supp. 344 

13 United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 85 L.Ed. 609 (1941). 

14 United States v. Lopez, 514 U.S. 549, at 558 (1995). 

15 Massachusetts v. U.S., U.S.Mass.1978, 98 S.Ct. 1153, 435 U.S. 444, 55 L.Ed.2d 403. 

16 Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 527 (1935) 

17 Alexander Hamilton, Federalist No. 11. “The Utility of the Union in Respect to Commercial Relations and a Navy,” For the Independent Journal. 

18 Kellen Norwood, “Federal Preemption of State and Local Law.” 

https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/210871015/Chapter%201.pdf (last visited May 13, 2024). 

19 James T. O’Reilly, “Federal Preemption of State and Local Law: Legislation, Regulation and Litigation,” American Bar Association. 2006. 

20 See Gade v. Solid Waste Management Association, 505 U.S. 88 (1992). 

21 See Jones v. Rath Packing Co., 430 U.S. 519 (1977). 

22 See Southeastern Fisheries Association v. Chiles, 979 F.2d 1504 (1992). 

23 See Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963). 

24 See Nash v. Florida Industrial Commission, 389 U.S. 235 (1967). 

25 Florida Transp. Service, Inc. v. Miami-Dade County, S.D.Fla. 757 F.Supp.2d 1260 (2010). 26 “Interstate Compacts: An Overview,” Congressional Research Service Legal Sidebar. June 15, 2023. https://crsreports.congress.gov/product/pdf/LSB/LSB10807 (last visited May 13, 2024). 

27 See South Carolina v. Katzenbach, 86 S.Ct. 803 (1966). 

28 “Sources of Greenhouse Gas Emissions,” U.S. EPA. 

https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions (last visited 9 May 2024). 

29 PPL EnergyPlus, LLC v. Hanna, D.N.J.2013, 977 F.Supp.2d 372. 

30 Energy and Environmental Legal Institute v. Epel, C.A.10 (Col.) 2015, 793 F.3d 1169, 1171. 

31 Ibid at 1173. 

32 Ibid at 1174. 

33 North Dakota v. Heydinger, C.A.8 (Minn.) 2016, 825 F.3d 912. 

34Ibid at 920. 

35Ibid at 921. 

36Ibid at 921. 

37 Energy and Environmental Legal Institute v. Epel, C.A.10 (Col.) 2015, 793 F.3d 1169, 1174. 38 North Dakota v. Heydinger, C.A.8 (Minn.) 2016, 825 F.3d 912, 922. 

39 20 ILCS 3855/1-75(d-5). 

40 Ibid at (d-5)(1)(B)(i). 

41 Ibid at (d-5)(1)(B)(ii) and (iii). 

42 Electric Power Supply Association v. Star, C.A.7 (Ill.) 2018, 904 F.3d 518, 524. 

43Ibid at 525. 

44 Allco Finance Limited v. Klee, C.A.2 (Conn.) 2017, 861 F.3d 82, 102. 

45 Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). 

46 Allco Finance Limited v. Klee, C.A.2 (Conn.) 2017, 861 F.3d 82 106. 

47 Allco Finance Limited v. Klee, C.A.2 (Conn.) 2017, 861 F.3d 82, 107. 

48Ibid at 106. 

49 Energy Michigan, Inc. v. Scripps, E.D.Mich. 2023, 658 F.Supp.3d 511, 515. 

50Ibid at 530. 

51Ibid. 

52 Energy Michigan, Inc. v. Scripps, E.D.Mich. 2023, 658 F.Supp.3d 511, 54. 

53 Sligh v. Kirkwood, (1915) 35 S.Ct. 501. 

54 Jones v. Gale, C.A.8 (Neb.) 2006, 470 F.3d 1261. 

55 National Pork Producers Council v. Ross, (2023) 598 U.S. ___ (2023). 

56 “What is Permaculture?,” Permaculture Research Institute. https://www.permaculturenews.org/what-is-permaculture/ (last visited 9 May 2024). 

57 “How to Improve Customer Retention: Build Wells, Not Fences,” SAP Community. https://community.sap.com/t5/technology-blogs-by-sap/how-to-improve-customer-retention-build-wells-n ot-fences/ba-p/13169116 (last visited 9 May 2024).

58 See Mark James, Kira Jannusch, Kelsey Koenig, Jack McGowan, Jon Small, and Ervin Yahr III, “Using Non-Price Criteria in State Offshore Wind Solicitations to Advance Net Positive Biodiversity Goals,” Vermont Law and Graduate School, Institute for Energy and the Environment. 2023. https://www.vermontlaw.edu/sites/default/files/2023-06/iee-tnc_offshore-wind-report_20230606_1644.pd f (last visited May 13, 2024).