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How to Design Feed-in Tariffs in the U.S. without Fear of Federal Preemption

The cavalry has finally arrived in the seemingly endless debate about what states can and can't do in designing workable feed-in tariffs. The cavalry is in the form of two new papers describing how states can design feed-in tariff policies without running afoul of the US government's power of preemption.

Written by Environmental Law Alliance Worldwide (ELAW) scholar and expert on feed-in tariffs Jennifer Gleason, the two papers explain the arcane rules derived from the US Constitution and the Federal Power Act. The papers, written for feed-in tariff advocates the Alliance for Renewable Energy, bring the discussion up-to-date with recent favorable decisions by the Federal Energy Regulatory Commission (FERC).

Opponents of feed-in tariffs in the USA have often hidden behind the skirts of FERC, citing restrictions in the Federal Power Act, to stymie action. Akin to the FUD tactics of big tobacco in the smoking wars, opponents sought to sow fear, uncertainty, and doubt that feed-in tariffs, like those used in Canada and Europe, could be implemented in the USA.

In October of last year, FERC blasted open the door to fully differentiated feed-in tariffs in the USA.

ELAW's Gleason explains what the decision means and describes the options states can choose in designing feed-in tariff policies that comply with the US Constitution and federal law.

While not recommending a specific recipe or model feed-in tariff law, Gleason's papers provide the legal foundation necessary for policy wonks, legislators, and advocates in designing workable feed-in tariff policies. 

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