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State Refusal Triggers Constitutional Crisis: Past is Prologue on Energy and Infrastructure
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State Refusal Triggers Constitutional Crisis: Past is Prologue on Energy and Infrastructure
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Journal Article
State Refusal Triggers Constitutional Crisis: Past is Prologue on Energy and Infrastructure
2015
Overview
Of note, moving power is everything! Since humankind first created the wheel and harnessed animals to do productive labor, energy has been the means to organize production and advance civilization.7 Electricity is a unique form of energy-with no substitutes or alternatives to its use in the twenty-first century for operation of computers, the Internet, medical imaging, national defense and security, modern communication, building size, and climate control.8 Electric energy is the fundamental technology essential to power the developed American economy.9 As the Supreme Court noted, it is now \"possible for a customer in Vermont [to] purchase electricity from an environmentally friendly power producer in California or a cogeneration facility in Oklahoma. Part II examines how ROFRs operate regarding electric power and assesses the dimensions of the constitutional confrontation created by several recent state refusals of the requirements under FERC Order 1000.20 We examine copper wires and why electricity, both as an engineering phenomenon and legally, is treated differently than everything else in the known universe21- power transmission is everything.\\n374 Restructuring and deregulating the retail electric power sector, which commenced at the state level in approximately 1997, dramatically changed the regulatory paradigm. 5 About 40% of the states restructured prior to the electric sector problems in California in 2000-2001; the other 60% of the states retained traditionally structured retail electric sectors.376 The amount of power wholesaled before it is sold at retail, has shifted from only 8% in the 1960s to over 50% today.377 As noted by the federal courts and affirmed by the Supreme Court, these independent market participants are the new competitive reality in power and energy markets378:
