Constitutional and Statutory Issues of Federalism in the Development of Energy Resources




Skillern, Frank F.

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Natural Resources Lawyer


This article examines federalism issues that arise from government-enacted energy development programs. The article explains that Congress utilizes the cooperative federalism approach when dealing with energy and environmental matters. Part I explains the plenary power given to Congress through the Commerce Clause and the limits the Tenth Amendment place on this power. The author examines numerous cases to explain the dormant commerce clause and to explain how the commerce clause affects states acting as market participants. The article also examines the preemption principle. The author discusses cases to address the constitutionality of various state taxes on natural resources. The article studies situations when Congress’ commerce power is transferred to the states. Next, the article discusses whether federal environmental laws preempt the federal common law of nuisance. Part II examines equal protection issues related to state regulations through a discussion of two Supreme Court cases involving milk containers and elk hunting. Part III begins with general information concerning selected cooperative federalism programs. This section then examines the case law that has developed regarding the various federalism concerns surrounding these cooperative programs. The article concludes with observations concerning the current and future roles of state and federal government with regard to energy resource development.



Energy law, Federalism


17 Nat. Resources Law. 533