First, President Trump should roll out an energy drink. I want what he drank, because the man won’t stop. This must be a bit like the Teddy Roosevelt years.
Second, that paragraph was a blatant way to get you to read a few hundred words about a legal doctrine—”preemption”—that my law students regard as the second-worst part of constitutional law (the first being the “dormant” or “negative” Commerce Clause about which there is no hope of ever writing an interesting column). “Preemption” is itself a tall order for non-lawyers. But stay with me.
Energy is freedom. Energy also ensures lower prices for everything that needs to be produced or transported. Energy production is central to President Trump’s domestic agenda because it is central to American prosperity and progress and because it drives down prices.
Getting energy from the ground, or flowing from a small, modular nuclear reactor, requires an astonishing number of permits from a dizzying array of federal, state and local agencies. That’s because our core constitutional structures – the load-bearing walls of our freedom – are the separation of powers and federalism.
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Our founders wanted it to be difficult to pass laws that limit individual freedom. Their genius was designing and amending the Constitution to protect individual liberties and state sovereignty and limit federal reach.
Getting energy from the ground, or flowing from a small, modular nuclear reactor, requires an astonishing number of permits from a dizzying array of federal, state and local agencies. (Lucy Nicholson/Reuters)
However, those same framers knew—just like the states’ ratifying conventions that gave birth to the Constitution—that a large commercial republic required the federal government to make laws to support interstate commerce. Thus, the Commerce Clause (Article I, Section 8, Article 3 of the Constitution) provides that Congress has the power “to regulate commerce with foreign nations, and among the several states, and with the tribes of Indians.”
The Constitution is silent on the extraction and transportation of oil and natural gas, as well as on small modular nuclear reactors, as well as on data centers that power artificial intelligence applications. Of course, people are silent on these topics, because the Framers could no more imagine those industries than they could imagine airplanes, let alone private spacecraft. But all of these activities are “commerce,” and Congress can regulate them, explicitly prohibiting states from interfering in these areas of commerce.
The Constitution is silent on the extraction and transportation of oil and natural gas, as well as on small modular nuclear reactors, as well as on data centers that power artificial intelligence applications. Of course, people are silent on these topics, because the Framers could no more imagine those industries than they could imagine airplanes, let alone private spacecraft. (spxChrome)
The Framers knew (1) the preeminent value of liberty, (2) the sacred importance of property rights, and (3) the need for Congress to have the power to override state and local obstacles to the advancement of interstate commerce.
Currently, many state and local governments are curbing energy production and transmission, limiting the supply of energy. These interferences – usually in the form of delays, denials or lawsuits – drive up the price of everything, because everything we buy requires energy to produce and transport.
For a thousand different reasons, many local, regional, and state governments are hostile to energy production and transportation and use their permitting power to place permitting hurdles in the path of that production and transportation.
Even when permits are eventually issued, groups of environmental extremists immediately file expensive and time-consuming lawsuits to prevent the projects from starting. It is time for Congress to pass legislation to prevent these anti-energy production and transportation policies and these extremist groups.
There is also discussion about federal preemption among AI companies and those concerned about AI, but I have no opinion on that because I don’t have any substantive expertise in AI. Before anyone jumps into a federal precedence debate on any topic, they should know the area in detail.
However, I am aware of the licensing maze surrounding energy production and transport. From 1989, when I left the Reagan administration and returned to California until 2016, when we returned to the Beltway because the needs of my broadcasting career finally exceeded the demands of my law practice, I represented major landowners (including energy companies) in federal, state and local licensing matters.
You wouldn’t believe that landowners have to navigate the regulatory maze to extract oil and gas from their own properties and build pipelines to carry the lifeblood of the economy everywhere. These state and local licensing puzzles are absurd and unnecessary, holding back American economic growth while also driving prices higher and higher.
There are countless examples, but let’s focus on just two. New York State has repeatedly blocked major pipeline projects such as the Constitution Pipeline and the Northeast Supply Enhancement pipeline. Construction of both would quickly increase the supply of energy to New England and reduce ridiculously high home heating costs.
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It’s a blue state versus blue state conflict, but New York’s regulators are environmental extremists. It is time for Congress to step in and stop state and local agencies from interfering with the construction of these pipelines and others like them across the country.
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Democrats claim to share these concerns. So there should be no objection to allowing reforms to allow faster development of all energy sources, especially the construction of pipelines to efficiently transport that energy to where it is needed most – like the Northeast, where the huge shock to home heating costs is real and only getting worse.
So, Congress, add some preemptive language to the next “must pass” statute and get the energy flowing. There are few problems that are so easy to solve.
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