Intergovernmental Relations and Energy Policy: What We Know and What We Still Need to Learn

Abstract

Although energy has become a key political issue in recent decades, a comprehensive national policy is lacking, and state and local governments are playing increasingly important and diverse roles. This essay reviews what we know about intergovernmental relations in energy policy, including overlaps between national, state, and local authorities; the character of intergovernmental interactions; and interstate variations. In sum, this essay illustrates why intergovernmental issues in energy policies are an interesting and important area of inquiry, reviews current scholarship in key areas, and suggests possible future avenues for research on this topic.

Keywords

energy policy intergovernmental relations

There is a growing body of scholarship focused on the emerging intergovernmental challenges of regulating energy in the United States (Byrne et al. 2007; Rabe 2008, 2011). This scholarship highlights a lack of comprehensive national policy, innovative policies developed by subnational governments, complex intergovernmental interactions, and interdependent governmental layers that shape U.S. energy systems. In general, existing literature indicates a high degree of cooperation and interdependence occurring, and disparate roles for national, state, and local governments (Byrne et al. 2007; Osofsky and Wiseman 2013). However, there is little cohesion in the scholarship and no central research agenda, leading to notable gaps in the literature and in understanding intergovernmental relations in this area. With that in mind, this essay has three goals: (1) illustrate why intergovernmental issues in energy policies are an interesting and important area of inquiry, (2) review the current research in three key areas, and (3) suggest possible future avenues for scholarship on this topic.

First, this essay focuses on where federal, state, and local energy authorities overlap, with a specific emphasis on electricity regulations. While court rulings suggest distinct areas of regulatory authority for federal and state governments, there is significant ambiguity surrounding these issues in practice, with local governments adding further complexity. Second, this essay reviews how scholars have characterized the intergovernmental interactions. As a result of policy overlaps, regulating electricity markets creates complex interactions between federal, state, and local governments that include cooperation and competition occurring along both vertical (i.e., governments at different federal levels) and horizontal (i.e., governments at the same federal level) dimensions. Third, this essay considers how interstate variations in energy policies contribute to the complexity of understanding policy overlaps and intergovernmental interactions. Finally, after reviewing these areas of scholarship, this essay suggests areas where current literature is limited and future research is needed.

Authority Overlaps

Do Federal and State Authorities Overlap?

Although this is a complex question, electricity markets provide a good illustration of broader trends in this area. Several studies indicate that most state-level policies focus on developing in-state production, while federal regulations focus on interstate transactions (Yin and Powers 2010; Delmas and Montes-Sancho 2011). States retain primary responsibility over in-state energy markets, which maintain their integrity until there is an interstate transmission or wholesale trade. Since most energy production and generation occurs in-state, a major portion of energy concerns falls under state authority (Rabe 2011; Osofsky and Wiseman 2013). Importantly, scholars argue that states use their authority over generation and production to dictate project development, which is an incredibly powerful tool for influencing electricity markets. However, many states lack natural resources to satisfy energy demands, requiring them to purchase from out-of-state sources (Heeter et al. 2015). For example, in 2012, nearly 40 percent of electricity from renewables was transmitted across statelines, meaning interstate and wholesale regulation plays a significant role in these markets (Heeter et al. 2015).

Consequently, a major portion of transmission and distribution falls under Federal Energy Regulatory Commission’s (FERC) authority, and federal policy initiatives surround regulating interstate energy markets and transmissions. While states challenge this authority, the Federal Power Act and Commerce Clause are clear about interstate regulation of energy markets, and the Supreme Court firmly upholds FERC’s role in interstate transmission and wholesale regulation, even though complexity in contemporary markets makes it difficult to separate wholesale from retail (Osofsky and Wiseman 2013). As a result, there is an ongoing battle between national and state regulatory control (Timney 2002; Rabe 2008, 2011; Osofsky and Wiseman 2013). While both national and state governments have seemingly distinct powers that the courts consistently try to reinforce as separate, it is nearly impossible to create a bright line between regulation of wholesale versus retail and interstate versus intrastate markets in the modern era of interconnectivity in generators, distribution, and sales. As such, several court rulings implicitly indicate that states can indirectly regulate wholesale markets via their regulation of retail markets and vice versa for FERC (Osofsky and Wiseman 2013).

To create further complication, previous research also finds that regulatory regimes (as well as their stability) affect investor behavior and project development, creating interdependence between federal and state regulations in shaping electricity markets (Menanteau, Finon, and Lamy 2003; Johnstone, Hascic, and Popp 2010; Fabrizio 2013). For example, in 1996, FERC created open-access rules separating transmission and distribution units, which opened the door for states to deregulate intrastate markets (Ardoin and Grady 2006). In deregulated markets, consumers have open choice in electricity providers (which offer a different mix of generation sources), but in regulated markets, states have greater control in requiring diversification of generation sources. These regulatory issues have subsequently had a direct impact on the development of electricity markets, such as regulated markets having higher rates of renewable energy production compared to deregulated markets (Carley 2009). As a result of these trends, electricity generators and distributors are subject to overlapping rules from FERC and state regulators that may vary between states.

Another example of these conflicts is in interconnection, where both state and national regulators establish standards for generators seeking to connect to power grids. Following the retail versus wholesale market regulation doctrine, scholars argue there is a not-so-bright-line separating state and national regulatory authority, where states regulate interconnection for customer-owned generation and FERC does the same for utility generation (Osofsky and Wiseman 2013). However, under Orders 792 and 792-A, FERC established interconnection standards for small generators, which also cover state-regulated, customer-owned generators (Chernyakhovskiy et al. 2016). Furthermore, intrastate transmission regulatory authority gives states de facto authority to regulate interconnection, as any generator needs to satisfy state requirements in order to transmit in-state (Osofsky and Wiseman 2013; Chernyakhovsky et al. 2016). Therefore, while national and state governments possess different legal authorities for regulation, electricity markets are subject to a fragmented regulatory regime (Timney 2002; Osofsky and Wiseman 2013). Although the existing scholarship analyzes these conflicts, there is still little clarity around these issues.

What about Local Governments?

While some scholars argue local governments are energy policy innovators (Krause 2011), there is far less scholarship on local policies compared to state and national. One possible explanation of this trend is the prevailing state–local relations system (i.e., Dillon’s rule), which limits local authority for electricity regulation and results in local governments developing programs that build on efforts from national and state programs (Krane, Rigos, and Hill 2001; Byrne et al. 2007; Krause 2011; Fowler and Johnson 2017). Given defined constitutional roles of national and state governments in electricity market regulation, this requires local governments to compete and/or cooperate vertically within the intergovernmental system since they have no autonomous areas of authority (Osofsky and Wiseman 2013). As such, local policies create overlaps with state policies in some areas, in order to make their jurisdictions more competitive or to address deficits in state efforts (Fowler and Johnson 2017). While few examples exist in the scholarship, Barnes (2013) suggests aggregate net metering as a local policy option that presents an alternative to state net metering policies, and Osofsky and Wiseman (2013) note that local governments are not universally preempted from adopting policies such as net metering or renewable portfolio standards.

Furthermore, there are also policy overlaps in siting and access between local governments and both national and state governments (Fowler and Johnson 2017). According to Morton (2012), “laws and regulations for the development and siting of electric transmission projects often require reviews and/or approvals from multiple federal, tribal, state, and local entities…[and] coordination will reduc[e] redundancies and regulatory uncertainties” (p. 4). In addition to state and federal regulatory agencies, many projects require approvals from an array of other agencies including those at the local level. Previous studies find local governments use land use and zoning policies, infrastructure access, and community concerns to affect development (Davis and Hoffer 2010; Tanaka et al. 2012). Additionally, research on issues related to green building indicates overlap between local policies and those of federal and state agencies related to electricity, energy efficiency, and renewable energy (Shapiro 2013; Fowler and Johnson 2017). However, in general, local energy policies have not garnered much attention from scholars (Byrne et al. 2007; Krause 2011; Fowler and Johnson 2017).

Complex Intergovernmental Relationships

Do Federal, State, and Local Governments Cooperate?

Most scholarship notes a general cooperative nature in energy regulation as a whole (Byrne et al. 2007; Carley 2011; Carley and Browne 2013; Osofsky and Wiseman 2013; Fowler and Johnson 2017). Vertical cooperation is most apparent via Regional Transmission Organizations (RTOs), which “intermixes federal, regional, state, and local lines in its institutional construction” (Osofsky and Wiseman 2013, 819). In these cases, multilevel governments cooperate to integrate electricity generation and transmission across regional areas that would otherwise be outside the scope of a single government. However, Klass and Wilson (2012) argue RTOs are an example of inadequacies inherent in the federal system for managing electricity markets, and Lenhart (2017) provides a detailed analysis of institutional obstacles to regional power governance and related challenges to implementing RTOs. A clearer example of vertical cooperation exists around research and development, where the national government funds research and development for new technologies (e.g., renewables), which is conducted in large part by state-operated public universities depend on national research funding (Margolis and Kammen 1999; Pew Charitable Trusts 2015; Fowler and Johnson 2017). Scholarship indicates that these activities are central to technology progression and directly influence electricity markets (Margolis and Kammen 1999; Pew Charitable Trusts 2015). As a result, national and state agencies cultivate a strong collaborative relationship surrounding technological development and its deployment in the market.

However, there are fewer observations and analyses of horizontal cooperation available in current scholarship. One reason is that interstate cooperation on energy issues tends to conflict with national authority over interstate commerce and regulations. Thus, issues such as interstate green power purchasing can be framed as a state–state or national–state issue, depending on perspective (Fowler and Johnson 2017). However, in many cases, interstate and interlocal agreements for climate change action or green building contain components for adopting certain policies or technologies as well. These agreements tend to rely on policy coordination and information sharing (Chen 2011; Zimmerman 2012). Additionally, some argue that states align electricity regulations to aggregate single-state policies to multistate-coordinated policies (Hurlbut 2010). Nevertheless, formalized examples of horizontal cooperation are mostly joint action plans, voluntary standards developed by regional and national organizations, or interstate compacts (e.g., Western Governors Association’s [WGA 2017] 10-year Energy Vision). Informally, there is evidence of cross-state communication and information sharing, and coordination of state laws from the energy policy scholarship (Freeman 1985; Krause 2011; Yi and Feiock 2012; Osofsky and Wiseman 2013). On the other hand, there is very little scholarship focused on horizontal cooperation at the agency level, where interactions of organizations within the same government occur (e.g., state water agency cooperating with state utility regulator for hydropower projects).

Is There Intergovernmental Competition Too?

Several scholars argue energy policy is a new front in intergovernmental competition occurring along both horizontal and vertical lines (Rabe 2013; Fowler and Johnson 2017). Most prominent are proponents of a race-to-the-top occurring in subnational energy policy, with interstate and interlocal competition chiefly a result of economic development, related to both new energy projects and citizen mobility based on political preferences (Rabe 2013). In many cases, state and local governments can use the same policies to attract new jobs and capital investment, reduce local electricity prices, and satisfy eco-friendly policy preferences, which facilitates broad policy coalitions (Rabe 2008, 2013; Lyon and Yin 2010; Carley and Browne 2013; Fowler and Johnson 2017). Consequently, there is significant research devoted to explaining adoption of state-level renewable portfolio standards and other innovative policies, with many scholars arguing it results from interstate competitive pressures (Matisoff 2008; Chandler 2009; Matisoff and Edwards 2014).

Other scholars also identified vertical competition, which is largely a result of venue-shopping from political interests (Byrne et al. 2007; Shipan and Volden 2005; Warner and Shapiro 2013). In particular, environmental advocacy groups learned in recent years that subnational governments are just as capable of improving environmental outcomes and, in many cases, make for friendly venues (Orr 2006; Rabe 2008, 2013; Krause 2011). On the other hand, Davis and Hoffer (2012) argue that energy industry coalitions seek to keep regulations at the state level, while environmental advocacy coalitions push for more national-level oversight and standards. In either case, “often the allocation of [state and national] responsibility is based on credit claiming and blame avoidance, rather than efficiency grounds” (Volden 2005, 328). However, there is little energy policy scholarship to indicate when cooperation and/or competition occurs or suggest particular patterns that exist for these behaviors.

Can There Be Both Cooperation And Competition?

One particular avenue that may answer this question is research suggesting that intergovernmental interactions are more complex than cooperation and competition alone. As such, some scholars argue that when national, state, and local governments come into conflict due to diverging goals, they use their fragmented authority to create obstacles as part of a negotiation and bargaining process (Markell 2000; Agranoff and McGuire 2001, 2004; Byrne et al. 2007; Osofsky and Wiseman 2013). More specifically, Rabe (2008) argues states are in a significant bargaining position both horizontally and vertically, as they possess more institutional capacity for energy policy implementation than the national government. As such, states can use their established authorities and expertise to create gridlock to national goals in order to obtain concessions. However, there is little direct evidence of this in the existing literature; although, the Cross-Sound Transmission Line provides an example (Rossi 2005; Fowler and Johnson 2017).

Rossi (2005) explains that in the Cross-Sound Transmission Line siting dispute, the state of Connecticut used its authority over intrastate transmission permitting to halt the usage of an interstate transmission line to New York. Connecticut officials, with both environmental concerns and support from investors in an older competing transmission line, removed operating permits for the new transmission line in their state and threatened litigation if it continued operations. Following years of back and forth, the dispute was resolved when a cost-sharing agreement between the New York- and Connecticut-based utilities was reached for the replacement of the older competing line, along with remediation of environmental impacts and establishment of a Long Island Sound preservation fund. In this case, Connecticut used its intrastate authority to create a roadblock to an interstate project in order to gain concessions from FERC, New York, and the New York–based utility. At the same time, FERC used its regulatory powers to threaten Connecticut-based utilities to force the state to the negotiation table (Rossi 2005). However, there are few other examples to point to in the literature, as intergovernmental negotiations and bargaining in energy policy in general or electricity regulation specifically are not well-documented (Rossi 2005; Osofsky and Wiseman 2013; Warner and Shapiro 2013).

Interstate Variations

Are States Doing Different Things?

Existing scholarship on subnational energy policy clearly indicates that state and local governments pursue policy innovation, but distribution of policy adoption is not consistent (Byrne et al. 2007; Rabe 2008; Carley 2011; Carley and Browne 2013; Osofsky and Wiseman 2013; Fowler and Johnson 2017). While policies such as renewable portfolio standards, net metering, and tax incentives are fairly common across the United States, there is a significant degree of interstate differences, resulting in drastic inconsistencies (Carley 2011; Carley and Browne 2013). Overall, scholarship indicates states rely on one of three policy approaches: financial incentives focused on demand-side behavior from end users, regulatory policies focused on supply-side generation, or a mixture of both financial incentives and regulatory policy to affect both supply- and demand-sides (Carley 2011). In particular, states have developed a range of financial incentives for renewable energy or energy efficiency that include grant and loan programs, feed-in tariffs, Property Assessed Clean Energy financing, public benefit funds, or an array of corporate, personal, property, and sales taxes (Carley 2011; Carley and Browne 2013).

Furthermore, Fowler (2015) identifies four ways in which states have framed energy as a policy issue: economic development, environmental protection, market regulation, or uncentralized with no single discernible strategy. As a result, states may manage the same policy in different ways, contributing to interstate variations (Fowler 2015). To add more complexity, local governments may also offer their own financial incentives and/or regulatory policies (Byrne et al. 2007). However, there are many states with no local governments operating energy policies (e.g., Alaska), while local governments in other states are extremely active (e.g., California; Byrne et al. 2007; Fowler and Johnson 2017). As such, the role of local energy policies is a further point of variation between states; however, current scholarship is woefully lacking in examining these local policies (Byrne et al. 2007; Davis and Hoffer 2010; Krause 2011; Tanaka et al. 2012; Osofsky and Wiseman 2013). Despite the extensive body of scholarship on interstate policy variations though, there is still no definitive answer on how these policies impact energy markets, with scholarship documenting both notable successes in individual cases (e.g., Texas) and systematic failures in national policy analyses (Byrne et al. 2007; Carley 2009, 2011).

What Causes These Differences?

Scholars have suggested several hypotheses to explain subnational energy policy choices including jurisdiction-based competitive pressures, resource availability, balancing of political preferences, and regulatory economics (Matisoff 2008; Chandler 2009; Yi and Feiock 2012; Fowler 2015). In a broad sense, much of this research relies on policy innovation and diffusion theoretical frameworks to identify and explain patterns of policy adoption (Chandler 2009; Weiner and Koontz 2010; Berry and Berry 2014; Matisoff and Edwards 2014). For example, Matisoff and Edwards (2014) contend that energy policies result from policy diffusion mechanisms related to intergovernmental competition and policy makers learn from policy experiments in other jurisdictions. On the other hand, several studies find that factors internal to states, such as political culture, ideology, social and economic interests, or economic development, are important substantive predictors of energy policy adoptions (Vachon and Menz 2006; Stoutenborough and Beverlin 2008; Chandler 2009; Weiner and Koontz 2010; Fowler and Breen 2013, 2014; Matisoff and Edwards 2014).

Alternatively, Carley (2011) argues that differences in approaches are a result of jurisdiction-based desires to diversify, decentralize, and decarbonize energy portfolios, with balance between the three leading to different mixtures of policies. Similarly, other studies have found interactions between policy tools and economic forces explain the broader collection of energy policies utilized by states (Weiner and Koontz 2010; Carley 2011; Yi and Feiock 2012, 2014; Carley and Browne 2013). In other words, states may be devising energy strategies that are broader than a single energy policy tool, and these strategies are likely the result of a complex interaction between numerous factors. Consequently, factors such as economic or cultural approaches to energy may be particularly important in explaining why some state and local governments respond differently than others to energy issues (Fowler and Breen 2013, 2014; Matisoff and Edwards 2014; Yi and Feiock 2012). Although this is a well-developed portion of the literature, there remain gaps in explaining how individual policy tools fit into broader energy strategies.

Current Gaps and Future Research

Existing scholarship on energy policy is broad and diverse, including research from economics, energy and environmental policy, intergovernmental relations, law, political science, and public policy. However, scholars across these disciplines recognize dysfunctions in integrating research focused on different levels of governments, especially when facing a lack of comprehensive national policy and increasing importance of subnational efforts (Byrne et al. 2007; Osofsky and Wiseman 2013). Given this, what still needs to be learned about intergovernmental issues in U.S. energy policy in general and electricity market regulation specifically? This final section offers a brief discussion on current limitations of scholarship and possible avenues of future research.

First, although court rulings may suggest clear lines of distinction between federal and state authorities, there are gaps in understanding the exact nature of national–state conflicts and patterns that emerge, especially across states. On the surface, national and state governments have distinct policy spheres, and local governments fall under state control. However, further examination indicates that national–state authorities are not easily separated, and there is unclear policy spheres for each. Issues such as interconnectivity and siting further complicate this with fragmented regulatory authority and a need to cooperate across levels of government. As such, scholars should directly consider research questions on autonomy and authorities of national, state, and local governments in energy policy. In other words, how are national policies distinct from state policies or local policies distinct from state policies? Or, are there clear lines of distinction that are important?

Second, analyses of intergovernmental interactions are lacking in numerous ways, including when cooperation replaces conflict and which tools are used to manage these relationships. While vertical cooperation and horizontal competition are well-researched areas of energy policy, and scholarship is consistent that both are occurring, there is little explanation of when each behavior emerges. This is particularly important for understanding the character of intergovernmental relations in energy policy and successful approaches to collaborative multilevel governance of energy systems. Furthermore, scholarship on other types of interactions (i.e., horizontal cooperation, vertical competition) is far less developed, and there are very few analyses of how intergovernmental conflicts are managed. Additionally, there are limitations in exploring regional sublayers, which are an increasingly important part of electricity markets (Klass and Wilson 2012; Lenhart 2017). As such, potentially important research questions in this area include the following: what causes conflict between national, state, and local governments and how can that conflict be successfully overcome?

Third, while interstate policy variations are likely the most developed body of scholarship of all those discussed here, there is still potential for further research, most notably around building frameworks to create a consistent conceptualization of roles at each level of government that takes into account how policies differ across the United States (Fowler and Johnson 2017). Given that state and local governments have been inconsistent in adopting policies in general and in specific policies that are adopted, there are few general observations to make about state or local policies that apply without exceptions. As such, there is little consensus in the literature on what subnational governments are doing or what they should be doing. Additionally, scholarship overwhelmingly focuses on national or state policies, creating a glaring gap surrounding local energy policies. Consequently, further research is needed in this area to identify how local governments fit into a larger model of energy policy.

Finally, and possibly most importantly, scholars should figure out ways to integrate extant scholarship into a comprehensive, cohesive model of U.S. energy policies, so a full picture of the regulatory environment of energy and electricity markets can be understood. While our review focuses on the intergovernmental aspects of this, some scholarship indicates there is an increasing reliance on nongovernmental organizations (NGOs) to address energy-related issues (e.g., climate change and energy independence; Florini and Sovacool 2009; Goldthau and Witte 2010). As such, there is a growing need to understand how public-sector agencies at all levels are interacting with NGOs to shape U.S. energy systems. As research on energy policy expands with intertwining, complementary, and contradictory findings, scholarship accounting for multilayered policies and institutions will become more essential to our understanding of energy governance. In sum, while existing scholarship on this topic is interesting, there are important limitations to it, and examining intergovernmental relationships can potentially make important contributions to research on energy policy.

Footnotes

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

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