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UC Law Environmental Journal

Steven Ferrey

Abstract

The U.S. electric system is regarded as history’s greatest engineering achievement and the second most important invention in history. This Article analyzes the provocative legal ‘dark side’ of crypto currency now compromising the sustainability and resiliency of the U.S. electric system. Crypto currency miners have migrated in mass during the 2020s from Asia to several areas of the U.S., choosing inefficiently to waste large amounts of fossil-fuel and electric power. Scholars suggest that Bitcoin’s indirect carbon emissions at the current rate, alone with no other increases by world nations (which in fact are still increasing rapidly) are enough to push global warming beyond the Paris Agreement commitment to stay below an increase in temperature of two degrees Celsius.

The Secretary-General of the United Nations states that we are travelling now on the “highway to climate hell.” This Article analyzes the legal ‘dark side’ of crypto currency, the Constitution, and recent Supreme Court precedent:

• Notwithstanding that climate policy is federal law and that electric power is the key sector of the economy warming climate, the federal government has no authority over crypto mining and its excessive electric power use emitting greenhouse gases;

• Constitutional and common law precedent limiting government crypto control;

• Constitutional separation of powers constricting Executive Branch action on climate and electric power matters, culminating in the West Virginia v. EPA (2022) decision;

• Equal Protection Clause precedent blocking state actions restricting crypto power use; and

• A suite of failed federal and state attempts to legally regulate crypto mining.

This Article highlights and analyzes U.S. crypto miners choosing fossil-fuel- fired power extending the life of polluting coal plants otherwise scheduled to close. This frustrates President Biden’s Inflation Reduction Act devoting hundreds of billions of dollars to shift the U.S. economy to renewable energy. This frustration is backstopped now by hundreds of cities in 31 states plus several states, supported by Supreme Court precedent, blocking effective rapid deployment of Biden’s sustainable renewable energy infrastructure laws and thus significantly warming climate.

In its final sections, this Article constructs legal ‘work-arounds’ to regulate crypto power that do not require any change of U.S. law or any action that contradicts the Constitution’s separation of powers. States have discretion strategically to reconstruct certain incentives and moratoria to reshape the use of power resources for crypto mining that will shift resource use in order better to sustain a fragile climate. These techniques are necessary as well to preserve resiliency of the U.S. electric power system and to meet U.S. international climate pledges to maintain a livable climate. The final sections propose a ‘win-win’ outcome.

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