Don’t Hide Behind Statutory Roadblocks: How the United States Can Resolve Conflicts to Implementing the German Feed-In Tariff Model and Contribute to International Efforts to Control Climate Change


As the international approach to controlling climate change has shifted from conservation to innovation, the United States has struggled to develop a regime for electricity generation that will encourage a transition from fossil fuels to renewable resources. The primary barriers to this transition are institutional resistance to change, difficulties in developing a renewable economy that is broad (in terms of varied types of renewables) and self-sustaining (rather than subsidized by the government), and public apprehension of increased rates. Germany, however, employs a feed-in tariff scheme that eliminates some of these barriers. As a result of the Renewable Energy Sources Act of 2000 and its predecessor legislation, Germany is projected to derive one-third of its energy from renewable sources by the year 2020. However, U.S. states attempting to replicate Germany’s model have encountered resistance from local utilities. In 2010, in response to a challenge from local utilities, the Federal Energy Regulatory Commission (FERC) issued an order declaring that a California Feed-In Tariff Act impermissibly encroaches on FERC’s exclusive jurisdiction to regulate wholesale electricity rates and therefore runs afoul of the Supremacy Clause of the United States Constitution. This precedent significantly limits the ability of states to implement the successful German model in the United States. This Note discusses the advantages and disadvantages of replicating *727 Germany’s feed-in tariff model in the United States, evaluates FERC’s recent decision on the legality of state-level feed-in tariffs and offers a potential solution that could reduce the legal barriers to implementation of a state-level feed-in tariff scheme in the United States.