Harvey Reiter publishes article in Harvard Business Law Review

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Harvey Reiter recently published an article in the Harvard Business Law Review entitled “When is renewable not renewable? The constitutionality of state laws denying new large Canadian hydroelectric projects treatment as renewable resources.”

Nearly 30 states have adopted renewable energy plans. As part of these plans some states have defined which sources of energy qualify as “renewable” and which do not. One controversial source is large-scale hydroelectric projects. Many states have defined both existing and new large hydroelectric projects as “nonrenewable.” Doing so with respect to new projects, Reiter explains, is a barrier to foreign competition under the Commerce Clause and bad for the environment and consumers.

There are no sites left in the U.S. where large-scale hydroelectric facilities can be developed. The likely sites for new projects are in Canada, specifically British Columbia, Manitoba and Quebec.

“The de facto effect of the restrictions of the restrictions, then, is to limit competition from Canadian entities to supply renewable energy. This should be enough of a reason to strike down the restrictions on a Commerce Clause grounds as state interference with federal regulation of foreign trade,” Reiter writes.

In short, the states that have labeled new large hydroelectric projects as “nonrenewable” are doing so out of competitive economic reasons and not solely out of concern for the environment. Reiter urges states to follow the lead of Vermont and Wisconsin to remove the restriction on power produced from new, large-scale hydroelectric facilities.

Reiter is a partner in the firm’s Washington, DC office. He represents clients in the natural gas, electric utility and communications industries, primarily before the Federal Energy Regulatory Commission (FERC), the Federal Communications Commission and the federal appellate courts. He has provided legal counseling, litigation, appellate, transactional and other legal services, including 20 oral arguments before various federal circuit courts of appeal.

Prior to entering private practice, Harvey was a staff attorney and then later Special Assistant to the Deputy General Counsel for Litigation with FERC. He currently serves as Executive Editor of the Energy Law Journal.

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