Energy Production and Permitting Challenges

First off, if President Trump could bottle whatever energy source he’s tapping into, that would be something. The guy just keeps going, kind of reminiscent of the days of Teddy Roosevelt, wouldn’t you say?

Now, you might wonder why I started with that little quip. Well, it’s actually a roundabout way of drawing you into a discussion about “preemption,” a legal term that, honestly, my law students tend to dislike quite a bit. They even rate it second only to the not-so-exciting “dormant” Commerce Clause in terms of constitutional boredom. But stay with me.

Energy is crucial—it’s free in some respects, and it significantly reduces costs on goods that we need to produce or transport. At the heart of President Trump’s domestic agenda is energy production, which is tied directly to America’s economic success and declining prices.

However, extracting energy from the ground or utilizing small modular nuclear reactors involves navigating a complicated web of permits from various government agencies—federal, state, and local. This complexity arises from our constitutional structure, which prioritizes separation of powers and federalism.

Our founding fathers aimed to create hurdles against laws that infringe on personal freedoms. They crafted the Constitution to safeguard individual rights and state sovereignty while limiting federal government overreach.

Yet, they also recognized the federal government’s necessary role in facilitating interstate commerce through the Commerce Clause. It states that Congress can “regulate commerce with foreign nations, commerce among the several States, and commerce with Indian tribes.”

The Constitution doesn’t specifically mention issues like oil extraction or the use of small modular reactors, nor does it cover data centers for AI. But these are all forms of commerce that fall under Congress’s regulatory power, meaning states shouldn’t interfere.

The framers understood the critical value of liberty, the importance of property rights, and the necessity for Congress to remove obstacles at the state and local levels that hinder interstate commerce.

Currently, numerous states and local governments are imposing bans on energy production and transportation, leading to restricted energy availability. This, in turn, makes everything more expensive since energy is essential for production and transportation across the board. Local governments, for various reasons, often adopt hostile stances toward energy initiatives, using their permitting authority to create roadblocks.

Even when permits are approved, environmental activist groups often create costly delays through litigation that can stifle projects before they even begin. Now is the time for Congress to act and enact measures that override these anti-energy policies and extremist pushback.

There’s also some debate among AI businesses regarding federal preemption, but I can’t dive into that—I simply don’t specialize in it. I need to learn more before weighing in on federal preemption across various sectors.

However, I’m all too familiar with the convoluted maze of regulations tied to energy production and transportation. From my time in the Reagan administration to my law practice, I’ve seen how landowners—and energy companies—navigate a labyrinth of federal, state, and local regulations.

It’s hard to comprehend how complicated and excessive these requirements are, as they hinder us from tapping into vital resources and building essential infrastructure. There’s a range of examples illustrating this issue, but let’s focus on New York State. It has repeatedly blocked significant pipeline projects, like the Constitution Pipeline and the Northeast Supply Enhancement Pipeline, which could significantly enhance energy supply to New England and lower soaring home heating costs.

While it’s a blue state issue, New York’s regulators often seem excessively environmentally focused. Therefore, Congress needs to step up and prevent state and local authorities from obstructing the construction of these necessary pipelines and similar projects nationwide.

Interestingly, some Democrats have acknowledged these concerns, so it’s puzzling why there would be resistance to reforms that facilitate the development of energy resources, especially pipelines that transport energy where it’s most needed. In regions like the Northeast, the reality of rising home heating expenses can’t be ignored—it’s only going to worsen.

So, Congress should take action to ensure energy can flow by incorporating preemptive language into upcoming legislation. Fixing this issue seems almost straightforward.