Energy Choices and the Long Conversation

By David Kay, Senior Extension Associate, Cornell University’s Community and Regional Development Institute (CaRDI)


I once was blind but now I see
American history was not my strong suit in high school. When I entered graduate school some years later, the already fading sign on my new office (an iconic slogan from the not too distant 1960s) prompted me to “Question Authority”. Since I didn’t quite understand at the time how important it was to understand authority in order to question it, I did not read this as an incitement to historical reflection.

Over the years as an Extension Associate at Cornell University, I developed a medley of insights and thoughts about rural and urban, home rule and regionalism, globalism and relocalization, community and identity. Only in the past few years have I begun to understand how these insights are deeply embedded in what some historians have called “the long conversation”.

This long conversation is about the distribution of collective authority in our democracy. About who gets to participate in and decide about which kinds of public decisions.

The conversation predated the founding of the country by more than a century (see for example, the Articles of Confederation of the United Colonies of New England, May 19, 1643). And it famously animated the debates in the Federalist Papers, that enduring treasure trove of wisdom sparked by the frictions between those who believed in dispersing versus concentrating power and authority.

The United Colonies of New England, 1643 (source).

The long conversation is, in fact, a never ending one. It has no universal, timeless conclusion. This realization has been driven home for me by my recent work on energy transitions.

Some controversies raised by our fossil fuel dependency are in no small measure debates about federalism, or the way authority is divided between central and distributed political units.

What is at stake? According to one author:

The choice of regulatory forum often seems to determine the outcome of the controversy. That may explain why Americans have traditionally shed so much metaphorical and genuine blood deciding what are essentially jurisdictional disputes between governmental institutions.

Consider three contemporary energy examples of the tensions raised.

1. High Volume Hydraulic Fracturing (HVHF) for Natural Gas Extraction
Hydraulic fracturing is a technology used to extract oil and gas from “unconventional” reserves of shale and other rocks. State authority dominates regulation of natural gas drilling, but is currently being contested by both federal and local government interests. Federal authority does apply to some aspects of HVHF and many other energy issues. However, the federal Energy Act of 2005 exempted key elements of oil and gas operations from national in favor of state regulation. This outcome is now being challenged.

The authority of states to regulate hydraulic fracturing is also being contested by local governments. In several Northeastern shale gas-rich states, state law appears to “supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries” (NYS Environmental Conservation Law §23-0303(2)).

Pennsylvania, West Virginia, and Ohio's state laws feature similar language on the issue. For example, Section 602 of the Pennsylvania Oil and Gas Act provides that municipal ordinances may not ‘“impose conditions, requirements or limitations on the same features of oil and gas operations regulated’ by the Act” (Keneally and Mathes, 2010). 

However, in New York State alone, at least two dozen communities have adopted seemingly contrary bans or moratoria. Within each state, the stage of litigation, appeal, and legal clarity on this issue differs.

2. Electricity Transmission
Power plant siting and electricity transmission rules have evolved with less media attention than hydraulic fracturing issues. But even as the Energy Act of 2005 exempted HVHF from federal review, it stipulated that a federal agency (FERC) would hold siting authority for certain electric transmission lines.

The Act was intended to reduce state and local obstacles, including procedural friction and political resistance, to transmission investment. Indeed, major upgrades in transmission infrastructure are projected as necessary to deliver new sources of electricity; most will be generated in rural areas remote from the point of use.

Supporters of grid modernization have advocated strengthening FERC’s authority further. Others remain concerned that good decisions require state and local oversight.

3. Power Plant Siting
Similar issues surround the distribution of authority over the siting of electricity generating facilities. For example, New York State recently passed legislation that shifts permitting jurisdiction for smaller commercial facilities (25-80 megawatts) to the state (i.e., away from local government).

A wind farm nearArmenia Mountain, PA.

Though not differentiated as to fuel source, the implications for wind energy have been given particular attention. Advocates and opponents alike see the legislation as an effort to facilitate the siting of new wind farms, in part by reducing the influence of localized opposition that holds greater sway under local government “home rule.”

Energy Federalism
These examples of contested regulation show some of the pressures being exerted on the status quo of federalism. What criteria, other than short-term political advantage on a particular issue, are or should be used to evaluate whether authority should be assigned to local, state, or federal government, or some combination?

In the Stanford Environmental Law Journal, Benjamin K. Sovocool (2008) offers a list of organizing principles derived from theories of “environmental federalism”. These include such competing goals as: 

• ensuring all affected by the decision are fairly represented, 
• promoting consistency of rules across political boundaries, 
• avoiding unfair imbalances in political power,
• enhancing accountability, and 
• promoting flexibility and innovation.

Versions of these and other arguments are not hard to find in the Federalist Papers.
 
Americans are “spilling blood” in a jurisdictional war over whether local, state, or federal government should control the fate of hydraulic fracturing. Blood pressures have also risen over who should permit moderately sized electric generating facilities and control the siting of natural gas and electricity transmission corridors. 
 
Not infrequently, advocates who argue for or against federal or state or “home rule” in one context reflexively take the opposite position in another. This may make strategic sense in the heat of battle over specific policy decisions about particular energy technologies or fuels or sites. However, a danger exists for partisans and policy makers who fail to lift their line of sight above the battlefield. 
 
Unless principled arguments about the benefits and costs of rebalancing federalism are considered, the distribution of power and passion that lead to precedent and victory in one arena may well simply set the stage for defeat in another. 
 

David Kay, a Senior Extension Associate with Community & Regional Development Institute (CaRDI), was trained as an economist, works in the Department of Development Sociology, Cornell University, and focuses on land use planning and community/economic development issues. He grew up in California’s burgeoning Silicon Valley but settled in Ithaca, New York, after graduate school, not least because of his growing appreciation of the small city’s uniquely combined scale of community and pace of life.

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