By Steven Ferrey.
The much-lauded advantage of the U.S. federalist legal system of separation of legal powers among separate levels of federal, state, and local government is credited with seeding innovation, experimentation, and diversity as a positive variable in the resilient American legal system. Now, U.S. separation of power within the U.S. system of law poses a legal barrier to addressing climate change or rapidly transitioning to sustainable infrastructure. Inferior levels of state and local government now are placing their legal ‘thumb’ on and are legally blocking implementation of the recently enacted Infrastructure Investment and Jobs Act (2021 Infrastructure Law) and the 2022 Inflation Reduction Act. This article analyzes elements supporting these legal barriers and relevant precedent. Concerning this most important sustainability legislation in a generation, successful implementation matters for the planet. This article develops and carves out a route to work around and dislocate this local barrier with no change in current U.S. law.