A Race to the Middle in Energy Law

Abstract

The world must dramatically decrease greenhouse gas emissions in order to avoid catastrophic climate change. That goal is unattainable unless the United States aggressively reduces domestic greenhouse gas emissions from the energy sector. Currently, state energy policies explicitly address in-state energy use, but fail to account for all greenhouse gas emissions from fossil fuels extracted and produced in state. Indeed, even where states implement aggressive renewable portfolio standards, fugitive emissions escape abroad through leakage and seepage. Because state energy policies ignore the production of fossil fuels, analyses that classify these policies as races to the top or bottom likewise fail to comprehensively account for all of the greenhouse gas emissions that the energy sector produces. This Article proposes a new race-to analysis that utilizes a national, results-oriented approach that simultaneously accounts for the missing emissions. It finds that conflict between and within state energy policies results in a national race to the middle in climate policy. Accordingly, the Article proposes that the federal government adopt a strong national energy policy that limits fossil fuel extraction and production in addition to greenhouse gas emissions from energy generation.