Alexandra B. Klass & Rebecca Wilton | 75 Vand. L. Rev. 93 (2022) |
This Article is about “local power.” We use that term in two distinct but complementary ways. First, local power describes the authority of local governments to enact regulatory policies in the interests of their citizens. Second, local power describes the authority of local governments to exercise proprietary control over the sources and delivery of electric power to their citizens. This dual meaning of local power is particularly important today, as an increasing number of local governments are seriously considering “municipalizing”— taking control of local electric power systems—at the same time that, outside the electric power sector, many states are constraining local regulatory power by displacing or “preempting” local initiatives in a broad range of environmental, economic, and social policy arenas.
Building on this dual meaning of local power, this Article constructs a new and important link between two existing bodies of legal scholarship: (1) state and local government law, with a focus on the recent, aggressive state preemption of local environmental, economic, and social regulatory policies, and (2) energy law, with a focus on the broad authority that exists in virtually every state for local governments to act in a proprietary capacity to control the generation and delivery of electric power to their citizens to meet a broad range of economic, environmental, political, social, and racial equity goals. In establishing this new connection between the two scholarly fields, we illustrate how local communities’ exercise of control over electric power systems creates a potential safe harbor from the well-documented trend of increased state preemption of local regulatory authority in many states across the country. This creates opportunities for local governments to use their long-standing proprietary powers to supply electricity to their citizens as a means to meet many of the same economic, environmental protection, and social and racial equity goals they have historically attempted to achieve through traditional regulation. This analysis also provides a new perspective on the renewed scholarly debates over “localism” and shows how local control over power systems can counteract historic parochialism concerns associated with renewable energy projects that are critical to a U.S. clean energy transition.
Alexandra B. Klass