One of the more interesting subtexts in the ongoing Waxman-Markey negotiations is the irony that as the bill gets closer to garnering the support it needs for passage — through horse trading, earmarking, compromise and watering down — it looks less and less like a positive step for renewable energy advocates to have a federal regime at all.
Thanks to preemption doctrine, whatever does emerge from Congress will likely trump much of what already exists at the state level for energy-environment regulation. Sure, the bill may hold out state autonomy to set higher renewable standards or more ambitious target dates than those federally prescribed, and that kind of dual sovereignty — especially where expressly permitted by Congress — has long been held constitutional. But, for a “progressive” energy state like Massachusetts, there are likely to be direct conflicts with the federal law, and in those cases the state standard (in many cases the more aggressive one) will be preempted.
One can imagine state regulators and green energy entrepreneurs salivating at the prospect of taking the climate fight forward behind the leadership of a leader like Obama in a very friendly legislative environment. And in some ways, they have delivered — look at the stimulus bill as an example.
Still, I wouldn’t be surprised to see the more well-entrenched interests (i.e., utilities) figure out ways to get their hands on a lot of the EE, DSM and demand response monies, and other money made available in both the stimulus and under Waxman-Markey.
The Washington Post touched on the problem for many advocates and regulators yesterday, noting on Waxman-Markey and the Senate’s own energy proposal that “…executives from companies in the wind turbine business are lobbying hard for stiffer renewable energy requirements, arguing that they would be better off with requirements that have already been enacted by 28 states.”
In other words, when you try to craft a bill that can win approval nationally, you’ll wind up with a pronounced flattening affect for states in the Northeast and on the West Coast where they could get – and already have – energy regulatory policies and legislative action that is far more progressive. In legal/historic terms, this is the same “race to the bottom/top” problem that has been fought over every issue ranging from labor law to racial equality to environmental regulation.
Another case of “be careful what you wish for,” as many of the same parties that greeted Obama’s (and the Dems that rode his wave) with a hand, might now be heard to gripe: “hands off!”